Marcus Lewandowski v NSW Police Force

Withdrawal of resignation - whether obligation on employer to permit withdrawal before approval of resignation under statutory terms - whether consent of both parties required - held withdrawal of resignation under contract of employment must be with consent of both parties - no evidence of exception to the general rule - resignation not offered in heat of moment.

CATCHWORDS: Extension of time application granted in circumstances where union failed to advise and self represented applicant makes error as to jurisdiction.

No unfairness in termination of employment by resignation.

LEGISLATION CITED: Industrial Relations Act 1996 Police Service Act 1990

Allison v Bega Valley Council (1995) 65 IR 68 Birrell v Australian National Airlines Commission (1984) 9 IR 101 Galea v New South Wales Egg Corporation (Court of Appeal, 21 November 1989, unreported) Hurrell and Ors v Queensland Cotton Corporation Limited (2003) 125 IR 145 John Ninness and Ors v Miller Bulk Haulage Farming Co Pty Ltd (now Miller Farming Co Pty Ltd) [2008] NSWIRComm 183 CASES CITED: Lynette Ann Marsham v Chailey Pty Ltd t/as the Andrew Miedecke Family Trust [2000] NSWIRComm 1062 Ngo v Link Printing Pty Ltd (1999) 94 IR 375 Retail Traders Association of NSW v Shop Distributive & Allied Employees Association of NSW (1990) 36 IR 38 State of New South Wales v Paige (2002) 60 NSWLR 371 Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd & Ors (1990) 20 NSWLR 221 Ward v Mobile Innovations Ltd [2002] NSWIRComm 287

HEARING DATES: 04/07/08, 27/11/08, 05/12/08

Applicant: Self represented

LEGAL REPRESENTATIVES: Respondent: Mr J. Fanning Senior Industrial Officer Industrial Relations Branch NSW Police Force

• 32 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Marcus Lewandowski re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 On 21 December 2007, Marcus Lewandowski (the applicant) filed an application in the Australian Industrial Relations Commission for relief from his asserted dismissal by his employer, the NSW Police Force (the respondent). He was advised he had filed in the wrong jurisdiction and, on 24 January 2008, this application under s84 of the Industrial Relations Act 1996 (the Act) which seeks relief under s85 by way of an order for reinstatement was filed by him in the Industrial Relations Commission of New South Wales. The applicant asserts his termination on 28 September 2007 was, in its nature, a constructive dismissal. The applicant asserts the NSW Police Force, between his resignation and the approval by the Commissioner of his resignation, should have permitted him to withdraw the resignation. As the application was filed nearly four months after the employment relationship ceased, the applicant also filed an Application for Extension of Time. 2 The NSW Police Force contends the applicant resigned his employment and, in such a circumstance, it was under no obligation to grant the applicant leave to withdraw the resignation. The Application for Extension of Time was opposed by the respondent.

History of Employment 3 Mr Lewandowski became a New South Wales Police Officer in December 2002. He continued to serve as a Police Officer until 28 September 2007 and, at the relevant time, he was seconded to Eastwood Local Area Command (LAC) from his permanent Command - the Blue Mountains LAC. At the time he joined the Police Force, he had an Associate Diploma in Mechanical Engineering (two years study) and had been a Project Engineer for seven years. He was also studying for a Bachelor of Technology Degree by correspondence. 4 On 30 August 2007, the applicant had been contacted via telephone by Detective Chief Inspector Tayler based at Charlestown Police Station who revealed he was investigating an incident that had occurred at the Commercial Hotel in Boolaroo. Mr Lewandowski asserted he knew of the investigation as his nephew, who had been present during an incident at a hotel, had informed him there was a police investigation being conducted into the incident. Mr Lewandowski asserted he had been "king hit" and, in that circumstance, he had hit back. He arranged for Detective Chief Inspector Tayler to interview him on Monday, 3 September 2007. The applicant revealed: 4. . . . I tried to ring Inspector Taylor (sic) on several occasions around 20th of August 2007 and on those occasions I was fobbed off, He would not speak with me. That's when I knew the investigation was against me. 5. I felt it was far to (sic) complex of an issue and it would require a determination from a Magistrate. I therefore knew I would be charged with Assault. As a result I believed I would be facing a 181D sooner or later . . .

The applicant asserts it was the notice of the investigation which triggered his search for alternative employment. 5 On 3 September 2007, the applicant accepted full time employment with another employer. He then resigned from the New South Wales Police Force "effective immediately" in writing as follows: Issue Constable Lewandowski's reg No 38029 employment with the NSW Police

Background I commenced duties with the NSW Police on the 20th of December 2002 and have worked in the General duties and then later within Highway Patrol section until now.

Comment Over the past two years I have found working within the NSW Police Force a constant struggle on my family and myself. I will not go into the reasoning in this report however I have documented and outlined my concerns in several other reports. I have recently been redeployed to Eastwood HWP and have found that Command to be a fair and reasonable Command to be attached to. I will also state that I have found the Officers within the HWP section to be also fair and reasonable to work with. I have just recently been offered a position in the Industrial Automation field and have decided to accept the position. I formally give the NSW Police notice of my resignation effective immediately. I believe I have approximately 150 hours Annual leave and a further 270 hours annual leave to be reaccredited. I will not be returning for any further shifts and I request that I continue to receive payments on a fortnightly basis until such time as my Annual leave is exhausted. My appointments and other equipment are stored at Pennant Hills Police Station. In approximately ten weeks I will arrange a time to return any outstanding items on issue to me.

Recommendation Forwarded for your information. 1. HWP Supervisor Eastwood 2. Eastwood LAC 3. Blue Mountains LAC 4. Eastwood Rosters Marcus Lewandowski 6 It appears from the content of this correspondence, the applicant resigned "effective immediately" but requested his 10 weeks accumulated leave to be paid fortnightly after which time he would return all police equipment. Ms Kerrie Cooper, the Local Area Manager for the Eastwood LAC (who does the personnel work for the Eastwood Area) rang the applicant on 4 September 2007, the same day he resigned. She advised him that he could not give notice of the resignation to take "effect immediately" and, at the same time, request he be paid annual leave on a fortnightly basis until his leave entitlement of 10 weeks expired. She also advised the difficulty the applicant had in commencing work whilst still employed by the Police Force and four weeks notice was usual in the Police Force. 7 On 4 September 2007, Mr Lewandowski, given he was advised by Ms Cooper he needed to submit his resignation on a required form, did so. On that form dated the same day as the conversation - 4 September 2007 - he again noted his last day of service would be 7 September 2007. The form states: Four weeks notice of resignation/retirement is desirable. If this cannot be achieved a separate report seeking an exemption must be submitted in addition to this separation form.

No separate report seeking an exemption was submitted. He submitted this resignation form to the Eastwood LAC. 8 Further, on the resignation form an officer who is resigning is asked to agree he/she has discussed the proposed resignation with a NSW Police Career Advisor; has referenced the Police Human Resources Intranet regarding alternatives to separation; if he/she has participated in a separation interview and questionnaire; and if he/she could be at some future time interested in rejoining the NSW Police. These parts of the form were not completed by the applicant on 4 September 2007. 9 Ms Christine Upton also held the position as the Local Area Manager but at the Blue Mountains LAC. She contacted the applicant on 6 or 7 September 2007 as his resignation had been forwarded to her at his permanent Command (the Blue Mountains) and advised him his resignation was being forwarded to the North West Metropolitan Region Command for a decision. He asserts she said it had to go to the Commissioner because he was under investigation. This part of the conversation is denied by Ms Upton. However, contemporaneous correspondence suggests this occurred (see letter dated 14 September 2007 at [11]). 10 On 12 September 2007, Mr Lewandowski sent a facsimile to the Blue Mountains LAC indicating he wanted his resignation to be placed "on hold for a short time". Superintendent Paroz (now Commander) was Mr Lewandowski's supervising officer under whom the applicant worked. Superintendent Paroz telephoned Mr Lewandowski to indicate his resignation could not be put "on hold" as he had requested. The Superintendent told the applicant he had to decide what he wanted to do but he also advised Mr Lewandowski, as his Superintendent, he would not support a request, in his particular circumstance, to withdraw the resignation. The Superintendent at this time, I can conclude, knew the applicant was working full time in alternative employment. 11 On 14 September 2007, the applicant then submitted to the New South Wales Police Force a further facsimile notifying the withdrawal of his resignation. It was in the same terms as the first facsimile but did not contain the request to place the resignation "on hold". It reads as follows: 14/9/2007 Issue Constable Lewandowski's reg No 38029 resignation.

Background I recently tendered my resignation via Blue Mountains LAC. I have been advised that the resignation has not formally been accepted due to an alleged complaint of assault against me and that the resignation had to be sent through to the Commissioner of Police.

Comment At this stage I would like to withdraw my resignation. As far as the complaint goes I acted in self defense. I was the victim in this matter, I was the one that was king hit by an unknown offender and I retaliated to being hit and acted accordingly. I suffered with a black eye and a laceration to my right hand. I have not been interviewed in relation to the assault and I am waiting further correspondence from Inspector Brad Taylor (sic) attached to Newcastle Police. As stated in my last report I have had a rough trot these past couple of years and I have now realized that I have the support of the majority of the HWP Officers the Blue Mountains HWP Office. I have been off sick for a while recently and then redeployed to a couple of different Commands and I suppose I have not felt that I was able to settle back in to the job as a result of this and the allegation I tendered my resignation. I did decline the opportunity to resolve some of the incidents that had occurred in the past which I feel was a mistake on my behalf. I joined the Police to have a long term career and I would like for this to continue. I still stand by what I have said and documented in the past however I feel things could have and should have been resolved. Now that I have had time away from the Blue Mountains and time to reflect on what has happened I would like the opportunity to return to my HWP position within the Blue Mountains. I believe my tenure is not completed there until July 2008. I understand Supt Paroz does not support this request. Recommendation Forwarded for consideration. 1. Blue Mountains LAC Marcus Lewandowski 12 After forwarding the withdrawal of his resignation and acknowledging he had been given an indication Superintendent Paroz would not support it, and while working in his new employment, the applicant contacted the Police Association of NSW to ask their assistance in persuading the Police Force to allow him to withdraw his resignation. The Police Association's intervention and the applicant's attempts on his own behalf failed. 13 On 21 September 2007, Superintendent Paroz notified the applicant his last day of service was officially 28 September 2007. The Superintendent signed off the resignation form on 24 September 2007. 14 Mr Lewandowski also relies upon other material of a medical nature in support of his argument that he resigned in the "heat of a moment", when he was not well and that his resignation should therefore be perceived as a constructive dismissal. Reports reveal that in 2005, after he had been transferred from the Mt Druitt LAC to the Blue Mountains LAC, he began to have difficulties in his working environment. He worked generally in the Highway Patrol. He sought, in October 2005, help from his GP and was referred to a Psychologist who recommended eight counselling sessions. He was off work for a period. In May 2007, the same Psychologist reassessed him and recommended further counselling. 15 The applicant had been diagnosed with depression. He received treatment. He was moved then to Eastwood LAC. He was absent from work on three occasions in his last year of service. He asserts he received no support from supervisors in the Blue Mountains LAC and had written to the Commissioner of Police complaining of his treatment. He asserts Superintendent Paroz was one officer who gave him no support. 16 The applicant expressed the view the counselling he obtained through the Police Force had assisted him and the stresses he suffered were abating and it was his view he could cope with police duties at the time of his attempted withdrawal of the resignation and especially now. 17 In around November 2007, Assistant Commissioner McQuirter visited Mr Lewandowski to discuss his resignation but concluded the applicant was no longer a member of the NSW Police Force. 18 The applicant revealed he is still in full time employment. He is receiving and has always received, in his new position, more income than that which he would earn as a Police Officer. He is married with children. He is still being paid for medical expenses.

Application for an Extension of Time under s85 of the Industrial Relations Act 1996 19 The applicant seeks an extension of time. The respondent, as a preliminary issue, opposes such an application. The application was filed on 24 January 2008 by the applicant some four months after the resignation was submitted with the following explanation:

. . . Q34. . . . what was the reason or reasons why your application was filed late? . . .

At the time of termination I was advised by the Police Association of NSW that they would be taking carriage of the matter. Upon phoning them numerous times over a three month period I was only told that they think I have a case and that it was being viewed as a forced termination. I kept contacting them by phone and just prior to XMAS 2007 they told me that because I was no longer a financial member of the union they were not going to proceed. I then submitted an application to the Australian Industrial Relations Commission and on this day 21.1.08 received correspondence from the NSW Police stating that they had lodged an application to dismiss as it was made under the incorrect jurisdiction. Hence why I am now submitting it under the NSW Industrial Relations Commission.

An application for relief, made under s84 of the Act, must be made within 21 days of the alleged contravention as stated in s85(1) of the Industrial Relations Act 1996. 20 Some particular evidence was led relevant to the Extension of Time Application. The Application to extend time was filed by Mr Eric Oates of Oates & Smith, Solicitors on the applicant's behalf on 13 May 2008. In support of that application, Mr Oates stated: 8. Between 28 September 2007 and approximately Christmas 2007 the Applicant sought advice from the Police Association of NSW. 9. In approximately late December 2007 the Police Association of NSW referred the Applicant to me. The Applicant then mistakenly filed an application in the Australian Industrial Relations Commission. 10. On 21 January 2008 the Applicant received correspondence from the NSW Police Force advising that they had made application to dismiss those proceedings as the AIRC had no jurisdiction to hear the dispute. 11. On 24 January 2008 the Applicant filed the application which is presently before the Industrial Relations Commission of NSW. 21 The Application for Extension of Time was listed before me as a preliminary issue. At that hearing it became clear evidence was being led which was relevant to the dismissal claim. The matter was stood over to allow all issues to be heard together. When the matter was re-listed for hearing of the Extension of Time Application and the substantive claim, the applicant was no longer represented by Mr Oates but was self-represented. 22 Mr Oates' evidence supported the applicant's evidence that it was on solicitor's advice the applicant was told to file an Application but Mr Oates opines the applicant "mistakenly filed an application in the Australian Industrial Relations Commission". I accept the applicant had sought further advice from the Police Association after his last day of service on 28 September 2007. The evidence reveals he was contacted by the Police Association on 2 October 2007 to answer a number of queries then heard no more from the Police Association until late in December when he was informed by it that the Police Association was not able to provide him with assistance as he was no longer a member of the Police Association. The applicant was referred, however, to Messrs Oates & Smith, Solicitors. Mr Oates then contacted the applicant on 24 December 2007. I accept the applicant had continually sought the Police Association's advice once he was given an indication from the Police Force that his withdrawal of the resignation was not supported. I accept the applicant was advised to file an unfair dismissal application by Oates & Smith. Due to a misunderstanding between the applicant and Mr Oates, the application was filed by the applicant in the Australian Industrial Relations Commission - the wrong jurisdiction.

Submissions: Extension of Time 23 The applicant submits he sought professional advice from the Police Association on his termination. It failed to assist him and failed to acknowledge his endeavours. That is the explanation for the initial delay. The further delay in filing in the correct jurisdiction occurred because, in saving costs, he elected to do the filing himself and misunderstood in which Commission he should file. On the revelation of his error, he correctly re-filed. 24 The respondent submits the matter was being pursued on behalf of the applicant by the Police Association of NSW prior to the applicant's last day of service and, as the applicant left the matter in the hands of the Police Association to pursue on his behalf, the burden of proof is placed on the applicant to demonstrate that sufficient reason exists to satisfy the Commission the late application should be accepted. 25 The respondent further submits the length of the delay is significant. The significance of the delay is more serious due to the business of the agent, namely, the Police Association of NSW, an organisation established to advance the industrial interests of its members; an organisation which continually operates in the NSW Industrial Relations System; and an organisation which therefore must be aware of the time requirements specified in s85 of the Industrial Relations Act 1996. 26 The respondent contends there has been no explanation, or no satisfactory explanation, as to the reason for the Police Association failing to submit an application within the specified time period. The respondent submits no explanation has been provided by either the Police Association or Mr Lewandowski as to why the Police Association did not pursue the matter within the prescribed time limitation. The application now being considered in the NSW jurisdiction was submitted 66 days out of time. This represents an excessive period of time for making an application. The respondent contends if the applicant's representative, the Police Association, as well as the applicant, considered his claim to be meritorious, there was a high responsibility carried by either party to ensure that the matter was monitored very closely and that the appropriate claim was lodged in time. 27 Further, the respondent submits, it is improbable that a Police Officer with five years' experience in administrating the law is not aware of the time limitation on submitting Applications for Relief from an alleged unfair dismissal. It also remains improbable that a Police Officer with five years experience in administrating the law is not aware of the need to remain diligent in regard to actions taken, or not taken, on his behalf by his representative. The applicant did not exercise due diligence in that his own inaction contributing to the excessive delay in filing. He took no other steps to contact or query the Association as to the progress of the matter. No alternate solicitor was contacted in regard to lodging the claim until late December 2007. The information provided by the applicant, the respondent submits, fails to provide an explanation of the failure to file the claim documentation within the time limit required. 28 The respondent submits the Commission is, therefore, able to infer because Mr Lewandowski had other full time employment at the time, he did not bother to contact the Police Association after 2 October 2007 in order to provide the Association with information required for them to pursue the matter. The Commission is also able to infer the Police Association refused to pursue the matter because, under the circumstances, Mr Lewandowski was advised there was little or no prospect of success. Further. the respondent submits: · The applicant failed to provide an explanation at all for the delay in making the application. · Without a reason being provided to explain the delay, the Commission has nothing to contemplate and therefore should not grant an extension of time to the applicant. There must be some material upon which the Commission exercises its jurisdiction and that has not been placed before the Commission. 29 As to the consideration required by the Commission as to hardship (s85(3)(b)), the respondent submitted Mr Lewandowski remains in alternative employment and there is no evidence of hardship to the applicant. Further, the respondent submitted there would be a considerable measure of disruption and hardship suffered by the NSW Police Force if the withdrawal of the resignation was allowed. The Police Force operates in an environment where it is essential that officers are trained to respond according to situations they encounter and officers are able to gather information and accurately and reliably make deductions based on the information the officers have. In the same way, the Police Force relies on the information provided by officers when they are intending to leave the Police Force. To grant an extension of time would cause great prejudice to the NSW Police Force. The respondent contends allowing an out-of-time application would inform all officers it is now possible to resign from the Force and try out a new position and if they wished to return to the NSW Police Force could do so without having to go through the Police Force's "rejoinee programme". An ex-Police Officer could rejoin simply by submitting an application for relief from unfair dismissal. Such would be against the public interest it was submitted. Any officer who has had their termination process completed and then wishes to renew their employment with the NSW Police Force could, the respondent submitted, if the applicant is successful in his extension application, do so through applying for re-employment with the Police Force. These ex-Police Officers must complete the rejoinee programme the respondent submits.

Consideration of Application to Extend Time 30 Relevantly, s85 of the Industrial Relations Act 1996 states: (1) . . . (2) The Commission is required to accept an application that is made out of time if the applicant has previously made a similar application under Commonwealth law relating to the same dismissal and: (a) the similar application was made within the time required by that Commonwealth law, and (b) the similar application has not been settled or determined, and (c) the application under this Part is made not later than 21 days after the similar application is withdrawn, or is declined because of the existence of an alternative remedy under this Part. (3) The Commission may accept an application that is made out of time if the Commission considers there is a sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected, and (c) the conduct of the employer relating to the dismissal. 31 Section 85(3) of the Act therefore provides a mechanism for the possible elimination of an injustice an applicant may suffer by the imposition of a rigid time limit. The respondent submits the discretion to extend the legislative time period places a significant burden on the applicant to show the particular circumstance qualifies him as a justifiable exception to the rule. The applicant carries the burden of proof. In attempting to determine the validity of the applicant's case, the Act provides guidelines for the Commission's consideration under s85(3)(a)-(c), namely: the reason and length of the delay; and hardship to either party; and the conduct of the employer. 32 However, the determination of an out-of-time application also requires the balancing of a range of considerations, including, but not limited to, the specific matters identified in s85. Ultimately, the exercise of discretion is governed by the requirements of ensuring justice to both parties (Brady v Kennedy t/as "Sardines" (1999) 91 IR 258). In Hurrell and Ors v Queensland Cotton Corporation Limited (2003) 125 IR 145, the Full Bench of the Commission, in granting leave to appeal, was satisfied the appeal raised important questions relating to the principles applicable to the determination of an application under s85(3) of the Industrial Relations Act 1996. The Full Bench said at [12] and [13]: [12] Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Ltd v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3)-(4) of the Industrial Relations Act 1991 (NSW)) in this way: "Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgment of applications beyond the 21 days prescribed in s 246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a sufficient reason'. Factors going to the formation of a view of a sufficient reason are outlined in s 256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a sufficient reason': see Martin v Nominal Defendant (1954) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view." [13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice-President in Brady v Kennedy (t/as Sardines) (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady , that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case". 33 The above principles were considered by Cole J in Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd & Ors (1990) 20 NSWLR 221 as referenced by Haylen J in John Ninness and Ors v Miller Bulk Haulage Farming Co Pty Ltd (now Miller Farming Co Pty Ltd) [2008] NSWIRComm 183. Haylen J adopted the Cole J approach saying in Ninness and Ors at [31]: (a) the applicant has to satisfy the court that justice requires that his default should be overlooked and he must satisfy the court that there is some reasonable kind of explanation or excuse for his neglect of the rules; (b) an extension should only be granted if to refuse it would be unjust; (c) when considering whether justice requires time to be extended the whole of the position of the parties is to be considered, including: (i) that the appeal is not of right; (ii) the grant of extension of time is not futile; (iii) the prejudice that may accrue to the respondent if an extension of time is granted; (iv) whether the party itself has brought about some compliance with the rules; and (d) that the parties are entitled to assume that the litigation will be conducted in accordance with the primary rules imposing time limits. 34 I accept the delay in filing this application has been substantial. The Police Association was certainly tardy in its advice to the applicant. The applicant then misdirected his application to the Australian Industrial Relations Commission in the mistaken belief this was the correct jurisdiction. However, the Commission accepts the applicant has provided a reasonable explanation for the delay. I do not accept the respondent's submission that because the Police Association did not activate the claim under s84 in time, the applicant should suffer prejudice (s85(3)(a)). 35 The applicant has not suffered any financial hardships (s85(3)(b)). He simply states he wants to remain a Police Officer and was at the relevant date sufficiently well to perform the duties. The respondent, however, contends it will suffer hardship as an organisation if the grant for extension is allowed. Some of its submissions on this point, however, I find are relevant not to the extension but to the effect a re-instatement, in such a circumstance, would have if the Commission so ordered. I accept the respondent's submission the Police Association is a professional organisation which would have been aware of the statutory limitation for the application. I accept the Police Association had represented the applicant from around September 2007. It took no action on the dismissal claim until contacted by the applicant on 2 October 2007 and then no further action. I accept the applicant provided the Association with information. I accept the Association's next act was to inform the applicant on 24 December 2007, as he was no longer a Police Association member, they could not represent him. However, the Association did refer him to Mr Oates, solicitor, who advised the applicant to file. It was due to a misunderstanding that the matter was filed in the Australian Industrial Relations Commission. 36 The issue of the endeavour to withdraw the resignation is one, I find, relevant not to the extension of time application but to the unfairness question. I do not accept the respondent's submission that if a finding of unfairness was found and a reinstatement was ordered, in these circumstances, that it would have a deleterious effect on the Police Force "rejoinee" programme and therefore no extension should be granted. This is a submission also more relevant to the type of order that the Commission would give if it was considering giving relief to the applicant in the substantive claim. 37 As to the conduct by the applicant (s85(3)(a)), I accept he had been a professional Police Officer and may have known of statutory time limits. I do not accept he would necessarily have known of time limits for filing for unfair dismissal under the Industrial Relations Act. Further, I accept he did endeavour, within the time limit, to obtain advice from the Police Association. There is no evidence they refused to act on his behalf, rather there is evidence due to delay in its office, no advice was given to the applicant within the time limitation for filing a claim under s84 of the Act. 38 As to the conduct of the employer relating to the dismissal (s85(3)(c)), the respondent contends on 3 September 2007, Mr Lewandowski submitted a letter to his Commander indicating that he was resigning from employment "effective immediately". The applicant then asked the resignation be put "on hold". Some 10-12 days after the initial resignation he then asked to withdraw it. The applicant, as later correspondence reveals, knew his Superintendent was not going to recommend his withdrawal in the circumstance. The Superintendent also recommended he not be re-employed. The resignation was then accepted. 39 While there is no evidence the respondent contributed to the delay, there is a question raised as to the circumstance in which the withdrawal was refused and whether, as the applicant asserts, the respondent could not refuse the withdrawal of a resignation. In Galea v New South Wales Egg Corporation (Court of Appeal, 21 November 1989, unreported), the Court of Appeal, in a reserved judgment of Kirby P, with which both Samuels and Meagher JJA agreed, restressed the importance of observing time limits in appeals but also adopted what Kirby P said (at 10): The appellant's case lacks merit: In considering applications for extension of time, it is appropriate to take into account the issue which the claimant wishes to argue and to make some preliminary estimate of the claimant's prospects of success in the argument. If a great injustice would be visited upon a party who has an otherwise strong case for appeal, a court may be more inclined than in a weak or unmeritorious case to consider favourably an application for extension of time. It is therefore appropriate to notice the nature of the grounds which, although out of time, the appellant wishes to bring in challenge . . . ."

Cole J in Technical Team Projects Pty Ltd v Noble Dunn Pty Ltd & Ors (1990) 20 NSWLR 221 commented on Kirby J's view saying (at 231): It appears from the first passage that three ingredients are required for a successful application: first, explanation for delays; secondly, a substantial point to be argued and, thirdly, demonstration of injustice if the applicant is prevented from arguing the point. It is this third matter, as distinct from the second, to which the passage last quoted refers. Injustice is not necessarily coincident with refusal to permit to be argued a substantial point. In determining if such a "great injustice" exists the whole position of the parties is to be considered. 40 I am persuaded there has been demonstrated a substantial issue to be considered in this matter (see also Hurrell and Ors v Queensland Cotton Corporation Limited (2003) 125 IR 145). 41 In use of the Commission's discretion, and balancing the interests of both parties, I find justice requires the extension of time for the filing of this unfair dismissal claim be granted and the application brought under s84 be considered. I have taken into account and accepted the explanation offered by the applicant as to the delay. I accept there could be no hardship carried by either party were this matter to go forward. There is a genuine question before the Commission as to conduct of the employer in not accepting the withdrawal of the resignation. In such a circumstance, there has been given to the Commission "sufficient reason" to allow the extension of time application.

Application under s84 of the Industrial Relations Act 1996

The Applicant's Submissions 42 The applicant submits in the circumstances he was constructively dismissed and should be reinstated or, alternatively, be permitted to withdraw his resignation as it was withdrawn before the determination by the Police Force to accept his resignation. 43 The applicant asserts as to unfairness he was not well at the time of resignation; his supervisor did not support him; he was fearful of the investigation; he would have been better throughout an investigation to have been a serving police officer; he should have been permitted to withdraw his resignation; his exit was unfairly conducted and not within Police Force procedures. 44 The applicant contends as he was not well at the time, the telephone call he received informing him he was under investigation triggered a fear that he would be charged and in such a circumstance he resigned. This act by the Police Force was, in effect, a constructive dismissal of him by the Police Force. He contends he was sick, he was scared and his state of mind was controlled by actions of the Police Force and his resignation was brought about by the combined effect of causing him an emotional injury and conducting an investigation into his off-duty conduct. 45 Mr Lewandowski as to the withdrawal of his resignation agrees he gave notice "effective immediately" and then withdrew the resignation. He contends he should have been allowed to withdraw his resignation and remain a member of the New South Wales Police Force. He firstly submitted as he had been approved for secondary employment, he could continue in his new job, put his resignation on hold and await resolution of the outstanding investigation while still a member of the Police Force which he felt would give him an advantage during the investigation. He would, therefore, have no financial difficulties during the investigation as he would be in employment. 46 Mr Lewandowski later determined it would be better to be a serving officer during the investigation so he then tried to withdraw his resignation. 47 The applicant, therefore, submits: · he thought he could withdraw the resignation and continue to work outside the Police Force until the matter (of the investigation) was resolved and that way he was not going to be in financial difficulty; · he only resigned because he thought he would be charged; · during the last 12 months of service he was in a distressed state for the majority of the time. During his illness he was not supported by his Commander; · the Police Injury Management Team were in the process of resolving his problems; · he did not have a separation interview nor an exit interview; · he did have an interview on 12 October 2007 and he said at that interview "This is silly, I tried to withdraw my resignation." 48 The applicant inferred in evidence he would have given up his newly obtained position and would have returned to work as a serving Police Officer if the withdrawal had been allowed, although this actual assurance was not contained in any of his written correspondence to the Police Force. 49 The applicant relies upon the authority of State of New South Wales v Paige (2002) 60 NSWLR 371 to assert the withdrawal of his resignation should have been accepted under law.

The Respondent's Submissions 50 The respondent submits the circumstance cannot be held to be a constructive dismissal as there was no action by the respondent which could have compelled the applicant or unduly influenced the applicant to resign (see Lynette Ann Marsham v Chailey Pty Ltd t/as the Andrew Miedecke Family Trust [2000] NSWIRComm 1062). 51 The respondent contends it had no obligation to accept the withdrawal of the resignation. The respondent submits the circumstances of this case are distinguishable from the circumstances given consideration by the Court of Appeal in Paige. The respondent submits: · Mr Lewandowski was supported by the investigation officer D I Taylor (sic) who ensured that a support package was forwarded to him. There was therefore no breach of the police investigation procedure causing an unfairness towards Mr Lewandowski; · there was, as in Paige, no 'indefinite deferral' of Mr Lewandowski's resignation pending the outcome of any investigation; · the resignation was not tendered in the heat of the moment, it was tendered as a result of Mr Lewandowski receiving and accepting an offer of employment from another employer. 52 The respondent not only relies on distinguishing Paige on the facts, but also submits the relevant provisions of the Teaching Services Act 1980 outline a different scheme for resignation from that defined in the Police Act 1990.

Determination of Claim under s84 of the Industrial Relations Act 1996 53 The resignation of a Police Officer is addressed in the Police Act 1990. Section 72 deals with the vacation of a non-executive Police Officer position, as follows: 72 Vacation of non-executive police officer positions (1) A non-executive police officer's position becomes vacant if the officer: (a) dies, or (b) completes a term of office and is not appointed for a further term, or (c) is removed from office, or retires or is retired from office, under this or any other Act, or (d) resigns his or her position in writing addressed to the Commissioner, or (e) abandons his or her employment in the NSW Police Force. (2) The retirement or resignation of a non-executive police officer does not take effect until: (a) the Commissioner accepts the retirement or resignation, or (b) the officer has given the Commissioner at least 4 weeks' notice in writing of the day on which the officer intends to retire or resign and the officer is not under suspension from office on that day. 54 Therefore, under the Act, there are two ways for a non-executive police officer to resign. Firstly, when he/she gives a notice of resignation and it is accepted by the Commissioner, it then takes effect. Secondly, if the officer has given the Commissioner at least four weeks notice of his/her intention (and is not under suspension from office on that day) then the resignation has effect. 55 Under s72 of the Police Act 1990, a resignation from the Police Force does not "require" the acceptance of the Commissioner of Police except in circumstances where the officer wishes the resignation to be effective within a period of less than four weeks (provided he is not suspended). Mr Lewandowski wanted the resignation to be "effective immediately" and, to that end, he ceased all duties immediately. This was accepted by the Police Force with confirmation by the Commissioner (through his delegate) and that acceptance took approximately 17 days. The applicant did not give at least four weeks notice, therefore all that was required under s72(2)(a) of the Police Act to effect the applicant's resignation was for the Commissioner to approve the resignation and that approval made the resignation approved from that date. Under s72(2)(b) of the Act, the alternative way for a resignation to be tendered is for a serving Police Officer (not under suspension) to give at least four weeks notice. The applicant did not give at least four weeks notice, therefore under s72(2)(a) of the Police Act his resignation required approval of the Commissioner and would take effect when the Commissioner accepted it. 56 The applicant presented his case on two basic grounds: 1. The circumstance leading to his termination were such as they should be viewed as a constructive dismissal of him by the Police Force; 2. Alternatively, the same circumstance reveals an unfairness in the employment at termination and he should have been allowed to withdraw his resignation. 57 In his application under s84 of the Act asserting an unfairness at the termination of his employment, Mr Lewandowski summarised his reasons for seeking reinstatement as follows: My resignation was submitted to be effective as from the 7/9/07. I was informed by the Local Area Manager Springwood that the resignation was not accepted as it needed to be signed off by the Commissioner due to an allegation against me. I was then told that I could not start my new job by the LAM. A few days later I submitted several reports trying to rescind my resignation. On all occasions I was told 'no". The NSW Police then set a new date for the last day of service to be the 28th of Sep 2007. I attempted many times to rescind the resignation before that final day. I was informed by the NSW Police Association that I was able to rescind my resignation at any stage but this proved not to be the case. I was diagnosed with Post traumatic stress disorder in Sep 06 and up until 1 week ago was still on medication for this illness. During my final months in the Police I was placed in two different commands within a short time period. At the time of submitting the resignation I was suffering with severe depression. Adding to this I thought that I would be facing a section 181 D loss of Commissioner's confidence and ultimately I would be terminated. I have been advised by In house Counsel Police Association of NSW that technically the resignation was not open for the Commissioner of Police to accept it as I had withdrawn it. In summary I feel that the NSW Police could have allowed me to rescind my resignation. I was a great Officer and have many more years to offer. I feel that their decision was harsh and unjust. I have 5 years experience in Policing. 3 years in General Duties and then specialising in HWP. I feel that I deserve to be reinstated. 58 The applicant asserts his resignation was in fact a constructive dismissal of him by the respondent. In the performance of his duties as a Police Officer the applicant suffered from "Post Traumatic Stress Disorder complicated by depression" (a psychological diagnosis). A Psychiatrist confirmed the diagnosis of Post Traumatic Stress Disorder but found it in partial and substantial remission on 22 February 2007. I accept while under stress but in recovery and while able to work and at work, the applicant was told that an incident related to his behaviour off-duty was being investigated. I accept that information influenced the applicant's decision to seek alternative employment. He succeeded in obtaining employment and that, together with a fear he would be charged and dismissed from the Police Force, triggered the applicant's decision to resign without notice. The applicant knew by 20 August 2007 when informed by his nephew, and after which he attempted to contact Detective Chief Inspector Tayler, he was under investigation. He sought work, then went for an interview. He obtained a new position. He then resigned. 59 I do not accept, prior to the resignation, there was conduct by the employer which compelled or indirectly influenced the employee to resign. There is no evidence of conduct by the employer which would have me conclude there was from the employer, conduct calculated or likely to destroy or damage the employment relationship. I do not accept that notice of an investigation into an incident by the Police Force to the applicant is conduct which could allow the applicant to have reasonably concluded that his working relationship with the Police Force was destroyed nor that an investigation would automatically lead to a criminal charge. The applicant has always argued his conduct was in self defence. He had a defence to any allegation being investigated. Therefore, I do not accept, in a circumstance where the applicant held the view he had an explanation for his behaviour, that he could reasonably conclude he would be charged. The fact that he was charged is of no relevance. 60 The applicant's fear of an investigation cannot be re-interpreted to conclude the conduct by the employer in calling an investigation into an incident was conduct which was the real and effective initiator of termination of the contract of employment (see Allison v Bega Valley Council (1995) 65 IR 68). I am satisfied the applicant made a conscious decision in his own interests to resign (see Ward v Mobile Innovations Ltd [2002] NSWIRComm 287). 61 The applicant challenges the procedures followed by the Police Force in its consideration of his resignation asserting the conduct of the Police consideration and acceptance of his resignation was unfair. He asserts the Police Force resignation procedure requires both a separation and exit interview and neither were conducted with him. However, on the resignation form filled in by the applicant, the applicant did not acknowledge these conditions. Further, Superintendent Paroz was of the view that as the applicant was already in alternative employment and was not reporting for duty from 7 September 2007, in such a circumstance, and taking into account the number of telephone conversations he conducted with the applicant in which issues surrounding his resignation were discussed, he, as the officer supervising the applicant on 24 September 2007 (when the Superintendent signed off the resignation form) was able to conclude a separation interview with the applicant in effect had been concluded. 62 I accept such a conclusion by Superintendent Paroz was open to him. He had revealed to the applicant he would not support the withdrawal of the resignation. He had a number of discussions with the applicant. I reject the applicant's assertion the withdrawal was not accepted because Superintendent Paroz was "not his friend". 63 It may be that the exit interview was not conducted by Superintendent Paroz but I am satisfied after the visit to the applicant in November 2007 by Assistant Commissioner McQuirter that all the procedural requirements of the Police Force including a separation and exit interview were conducted. 64 The applicant concedes, and there is sufficient evidence before me, in particular medical reports relied upon by the applicant, to conclude the applicant was, while on occasions suffering stress on the job, over other periods was able to perform his full duties and was, at the relevant date of the notice of an investigation, able to work. All the support services of the Department were being utilised by him at the time. I do not accept the mere condition of stress or even depression, while every support service was being provided to the applicant and he was in recovery and working, could be seen to be an explanation that the applicant did not know what he was doing when he resigned. I cannot accept the inference, as I have been invited to do, by the applicant, that his withdrawal was not accepted due to Superintendent Paroz's attitude nor that he was so unwell as to not know what he was doing, that is, make a conscious decision when he twice resigned. There is no medical evidence to support this assertion. I accept in being asked by clerical officers to tender his resignation in the required form, the applicant was mistakenly told the resignation would have too go to the Commissioner because he was under investigation. This is not a fact. Under the Police Act, such a resignation goes to the Commissioner where the officer does not give at least four weeks notice. The applicant was given incorrect advice by the clerical officers. However, that advice does not change the nature of the resignation itself. 65 The applicant was paid out his accumulated leave. The provisions of the Police Act were therefore complied with. The applicant resigned "effective immediately". The Commissioner in such a circumstance had to approve the resignation and it was effective upon his approval. The Commissioner's approval was notified. The applicant was, at the time, not under suspension so the consideration of the resignation was conducted in accordance with procedure and the Police Act. 66 I, therefore, do not accept that the above circumstances reveal there was a constructive dismissal of the applicant by the respondent from his employment with the Police Force. 67 Whether the applicant, on reconsidering, could withdraw his resignation prior to it being approved by the Police Force is, however, an issue to be given consideration. The applicant asserts he had the right to withdraw his resignation before it was accepted and he relies on the NSW Court of Appeal consideration in Paige as authority for this proposition. However, the withdrawal application made by the applicant was, at least initially, conditional. At the time of the first withdrawal the applicant proposed as he had the new job, he should stay on as a serving Police Officer, on paid leave and continue to perform in his new job while the Police investigation was being conducted. Such a proposition is not indicative the applicant was prepared to return to duty. The applicant asked for his resignation to be put "on hold". When it was pointed out to him he had to decide whether he wanted to withdraw the resignation or not, he wrote a withdrawal. He had resigned by 4 September 2007. The withdrawal of the resignation was on 14 September 2007. I accept the withdrawal was tendered 10 days after the applicant was advised by Ms Upton the resignation was being processed (this conversation was on 7 September 2007). 68 In Paige, the Court for Appeal considered the circumstance in which a Headmaster employed under the Teaching Service Act 1980 gave notice and then attempted to withdraw it. The Director-General deferred acceptance of the resignation, while conducting an investigation into the employee's conduct. Spigelman CJ as to the resignation held at [277]-[279]: [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. [278] The historical position that resignation from offices was not complete until acceptance, has often been modified. Although it is still common to talk of resignations in a contractual context being "tendered" and "accepted", such formulations are "merely linguistic courtesies". (See Marks v The Commonwealth (1964) 111 CLR 549 at 571 per Windeyer J.) [279] There are, however, particular offices to which special considerations attach, so that a resignation does not take effect until acceptance... 69 His Honour, the Chief Justice, then went on to comment: [281] The common law principle that a resignation may not be withdrawn can be modified by statutory provision. (See e.g. McCarry "Termination of Employment Contracts by Notice" (1986) 60 ALJ 78 esp at 80 and the examples set out by Windeyer J in Marks v The Commonwealth at 571-572.) 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. 70 It is the latter comment the applicant relies upon as a direct statement that if the statute requires the Commissioner to accept a resignation, a resignation may be withdrawn in the period of time before it is accepted. It is of importance to note his Honour said "may be withdrawn". However, his Honour, the Chief Justice then went on to consider the proposition saying: [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): "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 to 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." 71 Cases where withdrawal of resignation were permitted were then considered and his Honour commented they were cases where the resignation was tendered in the heat of the moment. His Honour then continued: [285] The second basis referred to above for the conclusion that the resignation in the present case could be withdrawn, is derived from the case of Martin v Yeoman Aggregates Limited [1983] ICR 314, in which a person who terminated the employment of an employee in the heat of the moment and in a highly emotional state was held to be entitled to withdraw a dismissal when he did so within five minutes. Gray J said in Birrell at 459 that this case did not extend"beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly". The circumstances in which a withdrawal of a resignation may be permitted have been further considered (see e.g. Ngo v Link Printing Pty Limited (1999) 94 IR 375 at 378; Achal v Electrolux Pty Limited (1993) 50 IR 236 at 238-239). [286] By reason of the significant purposes served by the common law principle, the qualification should be restricted to circumstances in which the act of resignation was not, in truth, a manifestation of the personal autonomy of the individual. [287] The application of the relevant case law in the instant case, involving the withdrawal of a resignation some months after it was proffered, appears to me to go further than any of the previous authorities and should not be accepted. However, it is not necessary to decide this case on this point. 72 Mason P also commented when considering a resignation and withdrawal by the Headmaster: [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 McGarry, "Termination of Employment Contracts by Notice" (1986) 60 ALJ 78 at pp80-1). 73 Giles JA also considered the particular circumstance before the Court of Appeal and held: [372] The respondent's resignation was not a resignation which, in the circumstances in which it occurred, should be regarded as other than a voluntary act, or should be regarded as something to which it would be unconscionable to hold him. It was a conscious choice, for reasons which seemed good at the time and according to the respondent in the belief that it could be withdrawn. There was nothing to show that the appellant had engendered that belief. The choice was maintained for two months. The decision to withdraw the resignation was not because it had been the product of stress or emotional disturbance, but because of a change of mind. The change of mind was in large part by reason of later events. On the widest reasonable view of the exception, it did not apply. 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. 80 I, therefore, dismiss the application. 81 Events which occur after a termination can also be relevant to an unfair dismissal case when the Commission is considering a possible reinstatement as has been requested by the applicant (Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 131 ALR 422; (1995) 69 ALJR 797; (1995) 185 CLR 410 (11 October 1995) and Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151; 88 IR 282). Relevantly, in Retail Traders Association of NSW v Shop Distributive & Allied Employees Association of NSW (1990) 36 IR 38, the former Industrial Commission in Court Session (per Cahill J, Vice-President, Glynn and Maidment JJ agreeing) in a consideration of an unfair dismissal proceeding and considering the decision as to whether to make a reinstatement order stated (at 52): . . . the emphasis will naturally be upon what occurred at, or leading up to, the termination and, in some cases, earlier occurrences. But when, after a finding of unfairness, the tribunal moves to the second stage, a consideration whether, as a matter of discretion, the employee should be reinstated in employment, relevant matters occurring after the termination may also certainly be taken into account and may indeed be so influential as to convince the tribunal that an award of reinstatement should not be made. 82 It is agreed the applicant faced two charges related to the hotel incident. One charge was dismissed. He was, however, found guilty of assault and fined $500 and put on a good behaviour bond for two years. Even if it was established the termination was harsh, unreasonable or unjust, and there has been no such grounds established, in a circumstance where a Magistrate has convicted the applicant and given his employment history and the determination of the Police Force as to his re-employment, an order of reinstatement to the Police Force would be unlikely.

ORDERS 1. The application under s84 of the Industrial Relations Act 1996 in Matter No. IRC81 of 2008 is dismissed.

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