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).