Mohazab v Dick Smith Electronics, 62 IR 205

Industrial Relations Commission (NSW)|1993-08-31|Before: Sams DP, Schmidt JJ, Schmidt J, Walton VP, Mr Justice P

CITATION : Li and OOCL Australia Pty Ltd [2002] NSWIRComm 167 APPLICANT PARTIES : Mary Yeung Li RESPONDENT OOCL Australia Pty Ltd FILE NUMBER: 5358 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - resignation of employee - whether employee forced to resign - workplace environment - harassment by supervisor - whether employee constructively dismissed - whether dismissal "harsh, unreasonable or unjust" - conflict of evidence - conduct of proceedings. CATCHWORDS : Held, no evidence of ongoing hostility from supervisor - specific incident did not justify resignation - resignation given freely, without coercion - resignation not sought to be withdrawn - employer's conduct appropriate and reasonable - respondent's evidence preferred - no dismissal - lack of jurisdiction - application dismissed - costs reserved. LEGISLATION CITED : Industrial Relations Act 1996 Mohazab v Dick Smith Electronics, 62 IR 205 Francesca v Prime Security (1993) SA IR 112, 31 August 1993 Western Excavating (ECC) v Sharp (Lord Denning (1978) ICR 2213) Allison v Bega Valley Council, 63 IR 68 Buckleigh v Western Sydney Regional Public Tenants Council [2000] NSWIRComm 238 Doumit v ABB Enginering Construction Pty Limited (AIRC 1609/96 Print N6999, 9 December 1996) Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Claric 218 Pty Ltd t/as Sanity Music v Meldrum, 91 IR 296 St Vincents Hospital Sydney Pty Ltd v Harris (unreported, Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998) CASES CITED : Britton v Riverstone Public School (unreported, Schmidt J, Sams DP, McLeay C. Matter IRC5504 of 1999, 6 May 1999) Bates v Gundagai District Services Club (unreported, Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000) Police Service of New South Wales v Batton [2000] 98 IR 154 Bayley Trading Co and New South Wales Representatives and Commercial Travellers Guild [1979] AR 392 Italiano v Bethesda Hospital [1998] 712 FCA, 19 June 1998 Cherry v Allied Express, 73 IR 305

PUBLICATIONS CITED: Australian Maritime Law, Second Edition 2000 - Editor: MWD White, QC "Court Etiquette", Mr Justice P W Young, Vol 76, ALJ May 2002 HEARING DATES: 11/12/2001; 11/13/2001; 04/18/2002; 04/19/2002 DATE OF JUDGMENT: 08/02/2002

APPLICANT Mr C P O'Connor, Solicitor, Thomson Rich O'Connor LEGAL REPRESENTATIVES: RESPONDENT Ms A McManus, Employers First

JUDGMENT: - 40 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Matter No IRC01/5358 MARY YEUNG LI AND OOCL AUSTRALIA PTY LTD Application by Mary Yeung Li re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 Mary Yeung Li ("the applicant") resigned from her employment as Assistant National Customer Service Manager with OOCL Australia Pty Ltd ("the respondent") by giving two weeks' notice of resignation on 4 July 2001. Her letter of resignation was in the following terms: Miss Amelia Chung OOCL (Australia) Pty Ltd Dear Amelia, I am writing to advise of my resignation giving a two week period of official notice. Thank you for giving me the opportunity to work for OOCL and I wish the company all the best. Best regards, Yours sincerely, Mary Li

2 On 10 August 2001, the applicant filed an application pursuant to s84 of the Industrial Relations Act 1996 ("the Act") seeking compensatory relief in respect to her alleged unfair dismissal.

3 At directions and conciliation proceedings on 23 August, Mr C O'Connor, solicitor for the applicant, submitted that the applicant was forced to resign due to the untenable workplace environment, which included difficulties the applicant had experienced with the running of the office.

4 After the parties were directed to confer and no settlement was able to be reached, the Commission chaired private conferences with the parties. However the matter remained unresolved. Pursuant to s87 of the Act, a finding of unsuccessful conciliation was made and the matter set for hearing. Directions were issued for the filing and service of evidentiary material.

5 It was apparent early in the proceedings that the applicant's resignation was related to the breakdown in the working relationship between the applicant and her immediate supervisor, Ms Amelia Chung.

6 Ms A McManus, for the respondent, submitted that the first occasion management was aware of the applicant's grievances was after an incident on 28 June 2001. The incident, involving staff seating arrangements, resulted in a heated exchange between the applicant and Ms Chung. The applicant complained to the Human Resources Manager, Ms Janine Donnellan, shortly after. As the applicant was visibly upset, Ms Donnellan sent her home. She remained on sick leave until 2 July.

7 On 2 July, the General Manager, Mr Jens Dahl, received an e-mail dated 30 June from the applicant in which she outlined her version of the seating incident and foreshadowed her resignation.

8 The e-mail reads in part: It is important to note that Thursday's incident was only the most recent of an ongoing problem of my work environment. Often, when I approach Amelia for a consultation on matters I consider important, she responds very harshly and brushes me off, telling me to take care of the work myself. Ironically, in matters such as Phuong's seating which I believe to be less substantial, she gets angry at me for taking my own initiative and asserting my own prerogative. Over the last several years, Amelia has constantly talked down to me as well as my staff. I have felt intimidated and controlled by her. As a result, my self esteem is very low and I have lost much confidence in my capabilities. I have not felt sincere appreciation for my dedication to my work, nor have I gained much reward for my hard work. On many occasions, Amelia has placed pressure on me to find evidence of fault in the work of colleague's(sic) that she dislikes. As a team player, I find this insulting and a question of my integrity. The extremely negative effects have affected by quality of life including my family life, not to mention damages upon my health. I continue to suffer from a stomach ulcer and subsequent pain, and I endure much sleep deprivation compounded with the emotional distress. Due to these painfully negative effects caused by the intolerable work relation which is absolutely unacceptable, I feel that I must resign from my position. As long as there is such insufferable behaviour in the workplace, I cannot continue to place myself in such a damaging work environment. I am considering legal action to seek compensation for the detrimental effects caused by work relations that I have endured. I intend to submit a letter of resignation in the near future to Amelia. I reiterate that she is not to be given access to this report.

9 The applicant said she first raised her concerns with Mr Dahl about difficulties in the workplace, including low staff morale, on or about 12 November 1999. She said that, while Mr Dahl had promised to address the issues, he had never spoken to her again about the matter.

10 The applicant deposed that in March 2000 one of her staff, Selina Prescilla, had resigned because of Ms Chung's insults and shouting. The applicant said Ms Prescilla had told Ms Donnellan and Mr Dahl why she was forced to resign.

11 In April 2000 the applicant heard Ms Chung speaking "in a very loud voice" to a customer, Mr Peter Boyce from Kerr McGee. Mr Dahl received a complaint from Mr Boyce and confronted Ms Chung about her rude behaviour. Mr Dahl told Ms Chung that Mr Boyce had threatened to withdraw his company's business because of her rudeness.

12 Mr Dahl instructed the applicant to fix the problem with Mr Boyce. Mr Dahl had said that neither he, or Mr Boyce, could communicate with Ms Chung. The next day the applicant said Ms Chung stood over her, raised her voice, banged her fist on the desk and said "I don't care who, even if Jens (Mr Dahl) instructed you. I told you not to help Peter Boyce". The applicant said she was shaking and went to the bathroom to calm down. The applicant deposed that she complained to Mr Dahl about the "very stressful environment" and that she felt very stressed and frightened by Ms Chung. Mr Dahl, however, did nothing about Ms Chung's behaviour.

13 In December 2000, the applicant deposed that she complained again to Mr Dahl about Ms Chung. The applicant said she felt stressed and nervous and that Ms Chung had threatened her in front of other staff. Mr Dahl's response was that she should put up with Ms Chung's aggressive behaviour. He had said she "threatens everybody". He told the applicant to "be brave and put up with it".

14 In May 2001, while attending a management course in Hong Kong the applicant complained about Ms Chung to a Company Director, Mr Wayne Shih. Mr Shih had told her that Chinese staff should be more tolerant of this kind of behaviour and that "we cannot seem to control Amelia (Chung)".

15 The applicant deposed that in June 2001, Ms Chung's aggressive behaviour intensified. Ms Chung shouted at her at least twice a day and called her stupid and incompetent in Chinese. Ms Chung's shouting made the applicant feel frightened and intimidated. About this time, an employee, Mr Alex Antonia, resigned and Ms Brenda Sives went on annual leave. These departures created further stress in the office.

16 In June 2001, two incidents occurred which involved aggressive behaviour from Ms Chung. The applicant said Ms Chung shouted at her for not having trained another employee, Megan Suerbier, and for not approving annual leave for a Ms Phuong Tieu (hereinafter referred to as "Phuong"). Ms Chung shouted at her to do as she was told.

17 The applicant said she reported these incidents to Mr Dahl and told him that Ms Chung was unreasonable and her aggression was affecting her health. Again, Mr Dahl did nothing, shrugged his shoulders and replied "I am sorry but if you cannot tolerate Amelia, you will have to go".

18 The applicant claimed that on many occasions she raised with Mr Dahl and Ms Donnellan the problems she had with Ms Chung. Mr Dahl simply said there was nothing he could do to change Ms Chung and everybody should try to put up with her.

19 The seating arrangement incident occurred on 28 June. The applicant had arranged for another employee, Phuong, to move her seat. The matter had previously been discussed with Mr Dahl. When Ms Chung found out she shouted at the applicant, in front of other staff. The applicant said she was very distressed and shaking after Ms Chung's abuse. She reported the incident to Ms Donnellan. She said Ms Donnellan's response was "You can deal with it yourself. You go and see her if you like. But we are not going to do anything. It's up to you". Ms Donnellan told the applicant to go home and "try and get over it". In cross examination however, the applicant agreed that Ms Donnellan had spent some time comforting her after this incident.

20 On 30 June the applicant wrote the memo to Mr Dahl referred to in para 8.

21 On 2 July the applicant visited her doctor who advised her to take stress leave. She returned to work on 4 July and met with Mr Dahl and told him that she couldn't take Ms Chung's mistreatment anymore. If he didn't do something about it, she would have to resign because of her health and the affect it was having on her family.

22 The applicant deposed that Mr Dahl then told her to resign because he couldn't do anything about the situation. He had said that Ms Chung would not change and his "advice to you personally is to resign from the company". She returned to her desk and typed out the resignation letter (see para 1). The applicant handed the letter to Ms Chung,

23 Ms Donnellan told the applicant later that day that the resignation had been accepted. The applicant expressed her disappointment that management had not addressed the problem which had forced her resignation. She said Ms Donnellan had made recommendations to management but Mr Dahl "decided not to do anything about Amelia bullying you".

24 Later that day, Mr Dahl offered to pay her two weeks in lieu of notice as he could see she was too distressed to continue in the job. However, she decided to work out her notice. During the notice, the applicant said Ms Chung did not speak to her.

25 On 20 July, the applicant wrote to a Miranda Lou at OOCL Hong Kong. In her e-mail the applicant expressed disappointment at being "compelled to resign due to ongoing emotional and physical detriment".

26 The applicant deposed that she was replaced by a long standing friend of Ms Chung's, Sonia Zlatich, who was in training for the applicant's position on or about 6 July 2001.

27 The applicant had secured employment with another company in the industry, Globe Shipping. Because of the strain on her health, she said she could never work for the respondent again.

28 Ms Amelia Chung was employed as the respondent's National Customer Service and Traffic Manager and was the applicant's direct supervisor.

29 Ms Chung said that while the applicant was considered to be a very dedicated and hard working individual, she was sometimes slow and hesitant in decision making and occasionally appeared nervous and unable to handle stress.

30 Ms Chung had employed the applicant in January 1995, having known her since 1976. She had supported the applicant's development and career by recommending her for promotion on three occasions and proposing her for industry and leadership training. Ms Chung recommended the applicant for an International Executive Development Program in May 2001.

31 Ms Chung deposed that there was the occasional unhappy incident involving the applicant and other staff members. However, this was considered normal in any business environment. These incidents had always been amicably resolved.

32 In January 2001 the applicant had told Ms Chung she was feeling fatigued, had ulcer pain, hot flushes and was worried about her parents' health. As a result, she took leave for a month. Two weeks after returning, the applicant was again complaining about her health. However, at no time, had the applicant raised any issue in relation to her work environment. After the applicant returned from Hong Kong in June 2001, Ms Chung noticed that her performance and temperament further declined.

33 Ms Chung identified a number of incidents which the applicant could have interpreted in a negative way: 1) The respondent's Sydney Booking Section had complained that the applicant was demanding and intimidating. She would direct tasks which were her responsibility, to another section because it was convenient. Ms Chung had raised this matter with the applicant and believed it had been resolved.

The applicant had complained that an employee, Len Davis, would smoke in the office before she came in and that she could smell it. Ms Chung said Mr Davis was a very heavy smoker which you could smell if you were close to him. Mr Davis denied the allegation and no disciplinary action was taken. However, the applicant wasn't happy with the outcome. Ms Chung told her to lodge an official complaint. She didn't do so.

There was an argument between the applicant and the Adelaide office which was resolved in favour of the Adelaide office. Ms Chung said the applicant was not happy with the result.

The New Zealand office had complained at delays in inputting manual Bills of Lading in the Sydney office. This was the applicant's responsibility.

Complaints had been received concerning documents which disclosed careless, incomplete or incorrect codes. This was the applicant's responsibility.

The applicant would be reluctant to refuse requests from customers to backdate or pre-date Bills of Lading. The applicant would refer the request to the Manager even though it was her responsibility to explain company policy to the customer. Customers would then call and complain.

On one occasion, the applicant had complained about a staff reduction and had threatened to resign. Ms Chung had pacified her and talked her out of resigning.

34 Other than these incidents, Ms Chung considered her relationship with the applicant to be harmonious and friendly. Ms Chung had not known of the applicant's grievances against her.

35 Ms Chung said that she and the applicant exchanged Christmas gifts in 2000. Ms Chung said that on many occasions the applicant had praised her in front of others. She referred to a dinner party at Mr Dahl's home to celebrate Ms Chung's fifteen years' service with the company. The applicant wrote an article for the OOCL magazine praising Ms Chung and thanking Mr Dahl for the party.

36 In a performance appraisal in December 2000 Ms Chung rated the applicant as "fully competent".

37 Ms Chung said that the applicant had never raised any issue of shouting and lack of respect in the office. The applicant had never mentioned that the working environment was affecting her health.

38 Ms Chung denied that Ms Selina Prescilla had resigned because of "abuse, shouting and mistreatment". Ms Chung denied shouting at Ms Prescilla on a regular basis and seldom had direct contact with her.

39 There had been one incident in which Ms Prescilla, on the applicant's instruction, had acted in serious violation of the company's documentation procedure. After the applicant denied giving such instruction, a meeting was held with all staff to explain the correct procedures. Ms Chung said there was no shouting and she had not accused the applicant of lying about the instruction. In cross examination, Ms Chung said Ms Prescilla was very sensitive and was often in tears after talking to customers.

40 Ms Chung gave her version of the Bill of Lading incident involving Mr Boyce of Kerr McGee in April/May 2000. She said that Mr Boyce had sought to change the OOCL global documentation procedure. When she refused, he became very angry and called her "a bloody Chinese bitch". Ms Chung became angry and told Mr Boyce that only Mr Dahl was empowered to make commercial decisions overruling the standard procedures.

41 Ms Chung told the applicant about the phone conversation and Mr Boyce's filthy language. Mr Boyce complained about Ms Chung before she had told Mr Dahl that she was very upset that Mr Boyce had made filthy and discriminatory comments.

42 Mr Dahl overruled the procedure for commercial reasons. Mr Dahl instructed Ms Chung to instruct the applicant to complete Mr Boyce's request because she could do a better job. Ms Chung said that at no time had she scolded, shouted at, frightened the applicant, or banged on her desk over this incident. Ms Chung said she had never described the applicant as stupid or incompetent.

43 Ms Chung was closely questioned on this incident. She outlined the role of the Bill of Lading in the shipping industry.

44 Ms Chung made the point that backdating or predating bills of lading occurs all the time. However, this was not what Mr Boyce had requested. She believed his request to be "illegal". However, Mr Dahl could overrule the company procedure and did so. Ms Chung was asked about a number of other requests from customers. She couldn't remember the details, as the company had many customers. However, Mr Boyce's request was different to any other.

45 Ms Chung rejected the applicant's complaint over training for Megan Suerbier. In any event, Ms Suerbier hadn't even transferred to the department in June when the applicant said this incident occurred.

46 Ms Chung denied the applicant's version of the incident concerning Phuong's leave approval. Ms Chung had sought to consult with the applicant as Phuong's direct supervisor. Ms Chung said that while there was an indicative holiday leave plan, all leave requests must be in writing and formally approved.

47 In cross examination, Ms Chung said she did not refuse the applicant's request for leave or tear up her leave form. Ms Chung said she was actually encouraging the applicant to take leave - so why would she reject it?

48 Ms Chung was questioned as to the company's procedures for dealing with employee grievances. Official complaints would be made to Human Resources. However with minor matters, Ms Chung would intervene and try to resolve them.

49 Ms Chung was asked about her working relationship with a number of other employees - Maria Carmona, Mr Ling and Doris Yeung. She agreed that she shouted at Mr Ling when he called her a bitch. However, at the time no one knew he was dying from a brain tumour and this was the reason for his strange behaviour.

50 Ms Chung gave her version of this incident. She said that some days earlier she had observed three male staff dismantling panels in the office. Ms Chung asked what was happening. They said the applicant had told them to do so. The applicant then told Ms Chung it would be more convenient for her to talk to Phuong if the partitions were removed. Ms Chung told her that no employee had authority to remove partitions without approval from management.

51 A few days later the applicant reported to Ms Chung that Phuong was complaining about where she was sitting and had asked if she could be moved or the partition removed.

52 Ms Chung took the matter to Ms Donnellan and Mr Dahl. It was agreed they would investigate the feasibility of moving Phuong and the costs involved. Ms Chung suggested two alternative temporary arrangements.

53 On 28 June Ms Chung found Phuong sitting in the sales area, having been directed to do so by the applicant. Phuong willingly moved back to her old seat. Ms Chung later learnt that Phuong had never complained about her seating arrangements. The whole issue had been initiated by the applicant.

54 Ms Chung called the applicant and asked why Phuong was not sitting where she was told. The applicant said it had been Mr Dahl's instruction for Phuong to move. Ms Chung told her that this was not so.

55 Ms Chung said that the applicant had raised her voice and provoked her during this argument. She told the applicant in a "very stern voice" that Phuong was to remain in one of the two areas discussed on the previous Friday. When the applicant continued to argue, Ms Chung became very annoyed and raised her voice. Ms Chung said she was extremely upset by the applicant's shouting and insubordination.

56 Ms Chung was extensively cross examined on this incident. The significant and relevant matters deposed by her were as follows.

57 Ms Chung said she was not upset when she discovered the partitions being removed. Rather, she was curious to find out why. She reaffirmed her comment to the applicant that, neither she, or the applicant had authority to remove partitions. Ms Chung was asked if she overruled the applicant's instructions. She said she "told the boys to put them back". Ms Chung denied there was any shouting or any heated exchange at this time.

58 A few days later Ms Chung noticed that Phuong was sitting where she was not supposed to be. The applicant told Ms Chung that it was Mr Dahl's instruction for her to sit in the sales department. Ms Chung said this was not correct and that Mr Dahl had told her (Ms Chung) and Ms Donnellan to sort it out (this reference was not in Ms Chung's affidavit).

59 Ms Chung said the applicant told her she was wrong and became hysterical in front of two other staff members. The word "hysterical" was not used in her affidavit. Ms Chung said she didn't know if the applicant was still upset by the partitioning incident.

60 Ms Chung was asked what she did about the applicant's upset and emotional state. She said she told her to calm down and restrain herself. She thought there was no point in dragging on the argument and believed it was better to deal with the matter the next day. She couldn't do so because the applicant was sick and not at work until 4 July. Ms Chung did not discuss the incident with Ms Donnellan that day or the next. She did not consider the incident to be "a big deal". Ms Chung believed it wasn't worth resigning over.

61 Ms Chung was not aware until Monday, 2 July, that the applicant had made serious complaints against her and intended to resign. Ms Chung told Mr Dahl about the seating argument.

62 Ms Chung told Mr Dahl the applicant had threatened to resign on three earlier occasions. She said that the earlier threats had been verbal and related to incidents involving other staff. On these occasions, Ms Chung had talked the applicant out of resigning. Even though this time it was a written resignation, Ms Chung still wanted to talk to the applicant. She didn't believe the decision was final.

63 Ms Chung received the applicant's resignation letter on 4 July. When handed the letter, the applicant was polite and thanked Ms Chung for her support. Still Ms Chung didn't think the decision was final. She said the applicant worked for two more weeks. They had spoken in a mature way during this time. Ms Chung gave instructions for a staff collection to buy the applicant a farewell present.

64 Ms Chung rejected the claim that Sonia Zlatich was a personal friend who had been trained to replace the applicant. She said Ms Zlatich phoned her on 9 July looking for a job. She offered Ms Zlatich the position as she had known her for some time. However, Ms Zlatich didn't commence employment until 23 July 2002.

65 Ms Janine Donnellan has been employed as the respondent's Human Resources Manager since July 1999.

66 Ms Donnellan gave her version of the seating incident. Ms Donnellan deposed that in the months leading up to the incident, the applicant appeared to be quite happy. This incident was the first occasion Ms Donnellan was aware of problems between the applicant and Ms Chung.

67 Ms Donnellan said that Phuong never came to see her about the seating arrangements - it was the applicant. There was an informal meeting with the manager a few days later. No notes were taken. It was not considered a major issue. There was no problem at this point with the applicant. The applicant then moved Phuong into the sales area (Ms Donnellan couldn't recall exactly when this occurred).

68 Ms Donnellan recalled that after the argument with Ms Chung the applicant was very emotional and upset and had said the work situation was making her ill and affecting her family. The applicant wanted to speak to Mr Dahl to inform him she could not work with Ms Chung and that something had to be done about her. The applicant said she would resign and sue the company.

69 Ms Donnellan said she was concerned for the applicant's well being and wanted her to wait until she was in a reasonable state of mind. Ms Donnellan had phoned Mr Dahl in Melbourne. They both agreed it would be best if the applicant went home and took the next day off to recover. The issue was to be addressed when Mr Dahl returned from Melbourne.

70 Ms Donnellan rejected the applicant's claim that she (Ms Donnellan) was dismissive of her problem. She had spent a considerable time consoling the applicant.

71 Ms Donnellan met with Ms Chung on the day of the incident. Ms Donnellan said Ms Chung was also upset by the incident.

72 On 2 July Ms Donnellan received the applicant's e-mail about the incident. She and Mr Dahl agreed to wait until the applicant returned to work to discuss the problem with both employees. They were concerned with the applicant's health and agreed to keep the e-mail confidential as requested by the applicant.

73 The applicant returned to work on 4 July and after meeting Mr Dahl handed in her resignation. Ms Donnellan had two conversations with the applicant and asked her not to resign, but to talk to Ms Chung and try to resolve the problem. Ms Donnellan said the applicant refused to do so. Ms Donnellan gave the resignation letter to Mr Dahl. Later that day, Ms Donnellan told the applicant the resignation had been accepted. The applicant came back to Ms Donnellan very disappointed and told her that something should be done about Ms Chung. Ms Donnellan said she had no authority to dismiss Ms Chung.

74 On 18 July, Ms Donnellan had lunch with the applicant. The applicant was still upset and said she wasn't well and that she needed a rest and a holiday. The applicant told Ms Donnellan she was going to look for a new job.

75 Ms Donnellan deposed that the applicant was a very experienced and valued employee who was respected by management and staff. A collection had been taken up by everyone in the office to purchase her a gift when she left.

76 Ms Donnellan gave evidence of a company scholarship awarded to the applicant's daughter and the nomination of the applicant for the International Development Program in Hong Kong.

77 Ms Donnellan also referred to the private dinner party at Mr Dahl's home to celebrate Ms Chung's fifteen years' service. In an unpublished article for the company newsletter, the applicant praised Ms Chung.

78 Ms Donnellan was extensively cross examined on her role as Human Resources Manager and the steps she would take to address employee grievances.

79 Ms Donnellan said that as the Human Resources Manager she would have made every effort to address any of the applicant's concerns and had intended to discuss the issues with both Ms Chung and the applicant.

80 Ms Donnellan deposed that no other employee had ever complained about Ms Chung's behaviour or said that they would resign because of her behaviour. Ms Donnellan said she was not concerned at Ms Chung's management style as Ms Chung was managing her area "quite well".

81 Ms Donnellan was asked about the resignation of Ms Prescilla. She said that she didn't know Ms Prescilla had a problem with Ms Chung. Ms Donnellan gave evidence concerning a number of other employee resignations. While expressing concern with resignations, she said employees resign for all sorts of reasons - personal, career advancement etc.

82 Ms Donnellan said, if the applicant did have a problem with Ms Chung, she did not take advantage of the company's grievance procedures or dispute settlement procedures.

83 Ms Donnellan was questioned about problems associated with the introduction of the new computer system and employees who had resigned during this period. She had not taken notes of meetings with these employees. Ms Donnellan's note book was tendered in evidence. Ms Donnellan had not taken notes of her interview with the applicant on 28 June. She said she did not always take notes of meetings. It depended on the situation.

84 Ms Donnellan gave evidence that she was not involved in hiring the applicant's replacement as she was away at the time. Ms Donnellan was taken to her note book (it was not a diary) which showed a reference to new staff on the date "20 July". Ms Donnellan said this entry referred to a Tim Mason, not the applicant's replacement.

85 Ms Donnellan said she was never aware of the problems with Bills of Lading, as it wasn't her area of responsibility.

86 Mr Jens Dahl is the General Manager of OOCL (Australia) Pty Ltd. He has had thirty-six years' experience in the shipping industry in Australia, Denmark, Hong Kong, Malaysia, New Zealand and the USA.

87 Mr Dahl responded to the evidence of the applicant as follows: 1) The applicant had not raised the issue of staff morale with Mr Dahl " many times " as she alleged (see para 8 of the applicant's affidavit).

Mr Dahl was not involved in the resignation of Ms Selina Prescilla and was not aware of her reasons for resigning (see para 10).

The Bill of Lading incident concerned Mr Boyce asking Ms Chung to issue documents which were not according to OOCL procedure. When Ms Chung refused to do so, she and Mr Boyce had a heated telephone conversation. While Ms Chung was correct in not providing the documentation, Mr Dahl overruled her for commercial reasons. The applicant had then handled the documentation. Mr Dahl was grateful. He said it was not true that the applicant had told him that Ms Chung had instructed her not to help Mr Boyce.

At no time, prior to 4 July 2001, did the applicant approach Mr Dahl to discuss any problems she was having with Ms Chung.

There was no conversation with Mr Dahl and the applicant in December 2000 concerning Ms Chung's behaviour.

The applicant had not reported any incidents to Mr Dahl involving other staff and Ms Chung.

88 Mr Dahl described the applicant as cheerful, well liked and a dedicated hardworking employee. He accepted that the applicant was "growing in the job" and this "could have" created tension between her and Ms Chung. However, there was no indication, prior to 28 June 2001, that the applicant was unhappy in her job or that there were any problems with Ms Chung. The applicant had never complained to him about Ms Chung's shouting.

89 Mr Dahl deposed that he first became aware of the applicant's concerns with Ms Chung when Ms Donnellan called him in Melbourne on 28 June 2001. Mr Dahl suggested that the applicant go home, take the next day off so she could calm down and carefully consider her situation before making a hasty decision (to resign).

90 On his return to the office on 2 July, Mr Dahl discussed the incident with Ms Chung. He advised her not to conduct heated discussions with staff in the general office, but in the privacy of her own office.

91 Mr Dahl expressed surprise when he received the applicant's e-mail (see para 8). This was the first time he was aware the applicant was having health and personal problems allegedly caused by a stressful work environment. He was unable to comment on the state of the applicant's health.

92 Mr Dahl discussed the e-mail with Ms Donnellan. They agreed to wait until the applicant returned to work before discussing the matter with her and Ms Chung. Mr Dahl respected the applicant's desire for confidentiality of the e-mail's contents.

93 Mr Dahl accepted that the contents of the e-mail were, in Mr O'Connor's words, a "cry for help" from the applicant. He conceded that he and Ms Donnellan decided not to do anything until the applicant calmed down and returned to work. Mr Dahl believed that the applicant's response was an over reaction which would "blow over".

94 Mr Dahl regarded the reason for the applicant's clash with Ms Chung as a trivial issue. However, he accepted that the applicant's reaction was serious. Mr Dahl did not regard Ms Chung raising her voice in front of other staff as a trivial issue.

95 When the applicant returned to work, Mr Dahl met with her and discussed the e-mail. He expressed concern for her health. However, he told her that he could not promise that Ms Chung would change her manner or management style. He denied this was tantamount to forcing the applicant's resignation. Mr Dahl did not accept that he had to choose between keeping the applicant or Ms Chung.

96 Mr Dahl denied telling the applicant she should resign. Rather, he told her the decision was up to her. He had the impression the applicant was surprised that he had left the matter for her to decide. He did not attempt to talk her out of resigning and he did not agree his behaviour was inappropriate.

97 Mr Dahl agreed he did not offer the applicant counselling or access to the respondent's disputes procedure.

98 After this meeting, the applicant tendered her resignation with two weeks' notice. Mr Dahl offered to pay her two weeks' pay if she felt uncomfortable working out the notice. The applicant said she was happy to work the two weeks. Mr Dahl said that the applicant worked the next two weeks as usual without any problems. The staff organised a farewell present for her and he offered to take her to lunch.

99 Mr Dahl could not recall when the applicant's replacement, Ms Zlatich, was hired. He recalled receiving Ms Zlatich's CV about a week or ten days prior to her commencement. He agreed it was a quick replacement. However, the fact she was a friend of Ms Chung had no impact on his decision to hire her. He disagreed with questions suggesting that Ms Zlavitch was in Ms Chung's mind to be hired before the applicant resigned.

100 In cross examination, Mr Dahl was asked about his e-mail to Miranda Lou in Hong Kong and his phone call to her concerning the applicant's resignation. He could not recall the exact conversation he had on the phone. However, it was outlined in the e-mail.

101 Mr Dahl was asked about an incident five years ago in which the applicant had been upset and offered to resign. The applicant said she raised this matter with Mr Dahl. However, the applicant must have been clearly mistaken as Mr Dahl said he had not even started with the company at that time. Nevertheless, Mr Dahl accepted the incident could have happened.

102 Mr Dahl was unaware of another incident involving a former employee, Deware Twist and the applicant. He said he couldn't do anything about it, because he didn't know about it. In any event, Mr Dahl said the company had a procedure to deal with these situations. Mr Dahl was also unaware that the applicant had offered to resign on another occasion over the appointment of permanent staff.

103 Mr Dahl referred to the company's scholarship awarded to the applicant's daughter two years in a row and the nomination, on Ms Chung's recommendation, of the applicant to attend the management seminar in Hong Kong during May 2001.

104 Mr Dahl also referred to the private dinner at his home in March 2001 to celebrate Ms Chung's fifteen years' service. The applicant was invited, appeared to enjoy herself and even sent a thank you note to him.

105 Mr Dahl was asked in cross examination about the incident involving the removal of office partitions. He deposed that he could not recall if he gave the applicant permission to remove them. Nor was he aware that Ms Chung and the applicant were upset about the matter. He said no one ever raised the issue with him.

106 Mr Dahl also gave evidence of a brain storming exercise he conducted a week after he arrived at OOCL. He said employees had raised staff morale as an issue. He addressed the problem and reduced employee turnover from 26 per cent to the industry norm of below twenty. This was achieved through the introduction of regular management meetings and encouraging managers to have open dialogue with their employees. Mr Dahl rejected the specific proposition that he did nothing about employee stress.

107 Mr Dahl described the function of a bill of lading. He said it is a document of title describing goods to be shipped. The bill was like a cheque and could be negotiated and endorsed to somebody else. It can be altered by agreement with the owner of the cargo.

108 Mr Dahl strenuously denied any illegality in Mr Boyce's request to alter the bill of lading. He said it was contrary to standard company practice and, for commercial reasons, he overruled Ms Chung. Mr Dahl did not believe that this incident was an "impossible situation" for the applicant. The applicant was not stressed by it, nor was it a stressful situation. In fact, he said, at no time had the applicant expressed any reservations or concerns about Mr Boyce's request.

109 Mr O'Connor opened his submissions by placing the case "in a sociological context". He said that, given Mr Dahl's age and background, he had resolved a perceived trivial problem between the applicant and Ms Chung by reverting to the task and focusing on productivity. Mr Dahl was insensitive to human relationships in the office as was evidenced by his response to Ms Chung shouting at employees in front of staff. He told her to do it in the privacy of her own office.

110 Mr O'Connor invited the Commission, in areas of evidentiary conflict, to prefer the applicant's evidence. The applicant was open and forthright with her evidence.

111 On the other hand, Ms Chung, Ms Donnellan and Mr Dahl were evasive or their recollections were incomplete.

112 Mr O'Connor put that the evidence disclosed a stressful workplace in which tensions were ignored and problems had to be worked out by the employees themselves. Management was not equipped to manage the workplace environment. Mr Dahl and Ms Donnellan dealt with the problems "by omission". Mr Dahl had admitted that the applicant's 2 July e-mail was "a cry for help". However, he conceded that he couldn't change Ms Chung. The only thing he did about Ms Chung's conduct was tell her not to scream outside her office.

113 Mr Dahl accepted that the applicant's health was suffering and said "well if you have bad health you better resign".

114 Mr O'Connor submitted that the applicant would not have resigned if the respondent had done something about the situation she had been complaining about for some time. It was understandable that the applicant did not take up the grievance procedure as she would be putting her job on the line if she did. The applicant's resignation must be seen in the context of her "cry for help". The respondent said "too bad" and encouraged her to resign.

115 Mr O'Connor said the applicant continued to work the two weeks' notice because she knew her stress was coming to an end. She was in fact giving the employer two weeks to invite her back.

116 Mr O'Connor referred to the stress caused to the applicant when Ms Chung asked her to perform an "illegal act". There was no doubt Ms Chung was concerned and upset by Mr Boyce's request. However Mr Dahl did nothing about it. This was indicative of his approach to stress management over a long period.

117 Mr O'Connor submitted that because the company was "growing the applicant" in her job, Ms Chung felt threatened. This increased the tension between them and explained Ms Chung's outbursts. It became an impossible situation for the applicant. He said giving the applicant an overseas trip was designed to pacify her - not cure the problem.

118 Mr O'Connor submitted that the applicant was not the initiator of the termination of employment; see Mohazab v Dick Smith Electronics, 62 IR 205. The respondent refused to address the problems raised in the applicant's detailed e-mail. Mr Dahl recognised that the applicant was surprised that nothing was to be done. The effective initiator of the termination was the omission to act by the employer. Mr O'Connor said the ongoing failures of the employer to deal with workplace stress, was a warning to the applicant that nothing would be done.

119 Mr O'Connor addressed the attendance of the applicant at Ms Chung's fifteen-year service dinner, by submitting that it would have been seen as an insult if she did not attend.

120 Mr O'Connor cited a South Australian case concerning constructive dismissal through resignation - Francesca v Prime Security (1993) SA IR 112, 31 August 1993.

121 Ms McManus submitted that this s84 application was not competently before the Commission. The applicant freely resigned without any pressure. There was no evidence that the applicant was forced to resign. There was no dismissal.

122 Ms McManus emphasised that there was no evidence that the applicant's duties were the reason for her resignation. Claims of being asked to perform "illegal acts" were wrong. Indeed, nowhere in the applicant's affidavit evidence, nor at any other time, had she claimed she was being asked to perform illegal duties or that she was stressed by such a belief.

123 The applicant claimed that since 1997 she suffered an intolerable working relationship with Ms Chung. Ms McManus said this was simply untrue and highlighted the following evidence. Ms Chung had: a) first offered employment to the applicant; b) assisted and promoted her through employment; c) nominated the applicant for an international executive development program only two months before the applicant's resignation; d) invited the applicant to her fifteen year private dinner party, after which the applicant wrote an unsolicited article praising Ms Chung; e) exchanged gifts and discussed personal matters with the applicant. This conduct was hardly consistent with a relationship in which Ms Chung was alleged to be "threatening, bullying and intimidating".

124 Ms McManus acknowledged that the relationship between the applicant and Ms Chung was not perfect. However, it was not so bad as to force her to resign, nor did the applicant bring any of these matters to the attention of management until immediately before her resignation. The first opportunity the respondent had to address the issue was on the day the applicant gave notice of resignation (2 July 2001).

125 Further, the applicant's claim of an intolerable workplace is inconsistent with her working during the notice period. Ms McManus cited Western Excavating (ECC) v Sharp (Lord Denning (1978) ICR 2213), which demonstrated that the applicant affirmed the contract of employment after giving notice of resignation and did not treat herself as being discharged by the respondent.

126 In citing Allison v Bega Valley Council, 63 IR 68, Ms McManus said that at no time did the respondent tell the applicant to resign. Mr Dahl made it very clear it was a decision only the applicant could make. It was relevant that the applicant had threatened to resign on previous occasions and was talked out of it by management. The applicant was surprised when she was not talked out of it on this occasion.

127 Mr Dahl had responded appropriately, and honestly to an issue which he regarded as trivial. However, he did not treat the consequences as trivial. He took steps to address the problem. He had counselled Ms Chung about her behaviour. Mr Dahl could not, however, promise Ms Chung would change her manner.

128 Ms McManus referred to my decision in Buckleigh v Western Sydney Regional Public Tenants Council [2000] NSWIRComm 238 and submitted that, like that case, the applicant had freely exercised her right to resign. She had told Mr Dahl of her intention on 28 June. She stated it again in the 2 July e-mail and followed through by letter of resignation on 4 July.

129 It was an unequivocal resignation, amounting to a repudiation of the contract of employment. It was not given in the "heat of the moment".

130 The respondent had respected her decision and even allowed her time off to reconsider. In the circumstances, the respondent could do no more.

131 Ms McManus said, even the applicant's resignation letter was couched in friendly language, demonstrating it was given freely, without any influence from the employer. Moreover, Ms McManus submitted the respondent's witnesses had all considered the applicant to be a valued employee, in whom, considerable time and money had been invested.

132 Ms McManus put that the applicant had other options than resignation. For example, despite many years of friendship, the applicant never sought to resolve her differences with Ms Chung. Nor did she avail herself of the respondent's grievance procedure. The conflict was never raised with Ms Donnellan or Mr Dahl even though the evidence indicated both of them had a caring and amicable relationship with the applicant.

133 Ms McManus said there was no evidence that Ms Chung had lined up a replacement for the applicant prior to her resignation.

134 Ms McManus referred to the principle of "a fair go all round". In this case, the respondent was given no warning of the applicant's grievances with Ms Chung. It obviously could not address the issue. The respondent regarded Ms Chung's behaviour as inappropriate. It had respected the applicant's request for confidentiality. However, the applicant resigned before the respondent could pursue the matter further.

135 Ms McManus submitted that there was no constructive dismissal; see Doumit v ABB Engineering Construction Pty Limited (AIRC 1609/96 Print N6999, 9 December 1996) and Allison v Bega Valley Council. The applicant refused to discuss the matter and her decision was based on perceptions. The applicant's resignation was voluntary. Moreover, if the situation was so bad as to force her resignation, it is unlikely she would have worked out her notice.

136 Ms McManus put that the applicant's evidence was inconsistent, exaggerated and unsubstantiated. Ms McManus submitted that the claim was frivolous and/or vexatious and foreshadowed an application for costs pursuant to s181(2)(c) of the Act. Should the Commission find against the respondent, reinstatement would be impractical and any compensation should be at the lower end of the scale.

137 In reply, Mr O'Connor rejected the respondent's claim that it was common ground that the applicant had resigned. Further, it was not the applicant's case that she resigned because she was asked to perform an illegal act.

138 Mr O'Connor submitted that the applicant had given the respondent an opportunity to address the problem. However, it failed to do so. Mr Dahl had recognised it would be futile to try to do anything about the stressful workplace environment. Mr O'Connor said Mr Dahl was indifferent to the applicant's problems.

139 Mr O'Connor submitted that none of the cases, cited by Ms McManus contradicted the applicant's case of constructive dismissal. She was forced to resign by the inaction of the respondent to do anything about a stressful workplace environment.

140 Finally, Mr O'Connor sought costs on an indemnity basis.

141 An employee's resignation may be found to constitute a constructive dismissal in circumstances where the employee is either forced to resign or, as is alleged in this case, be left with no option but to resign.

142 The principles of constructive dismissal are now well established. For the lead authority on the question one need go no further than Allison v Bega Valley Council. There the Full Bench said: It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning.

In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment.

Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?

It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue.

In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer. Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed.

See also Clark v Pittwater RSL Club Ltd (1998) 84 IR 309, Claric 218 Pty Ltd t/as Sanity Music v Meldrum , 91 IR 296, St Vincents Hospital Sydney Pty Ltd v Harris (unreported) Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998, Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999, Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000 and Police Service of New South Wales v Batton [2000] 98 IR 154.

143 The essential question to be determined in this case is whether the effective initiator of the termination of employment was the employer or the employee. The expression "termination of employment at the initiative of the employer" was discussed by a Full Bench of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics. The Full Bench said at p205: It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.

144 In this case the applicant claimed she was forced to resign. It will be immediately apparent that a forced resignation cannot be said to be a termination of employment agreed to by the employee. At this juncture, I would refer to the comments of Macken J in Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392: Just as it is a fundamental requirement for an employment contract to be entered into by the genuine consent of both parties to the contract - a consent untainted by any hint of pressure or threat - so too, it must be terminated by a resignation equally untainted by any such threat. Where a contract is terminated otherwise, it amounts to constructive dismissal.

145 On the other hand if there is no dismissal of the employee at the initiative of the employer, de juris, there can be no unfair dismissal. The Commission therefore has no jurisdiction to determine the matter and such an application must be dismissed.

146 Sometimes, a termination of employment at the initiative of the employer, might arise in circumstances where the employer has created an intolerable workplace environment or permitted such an environment to flourish, in which the employee is left with no alternative but to resign.

147 It might be said that, although the employer did not directly force the resignation, the acts of the employer, or alternatively its failure to act in particular circumstances, initiated the termination of employment. This notion was considered in Italiano v Bethesda Hospital [1998] 712 FCA 19 June 1998. The Federal Court said at p2 of the judgment: The question in this proceeding is whether having regard to the expression " termination at the initiative of the employer " there was an express termination of employment by the respondent, or a resignation by the applicant. If it is found to be the latter, it is then necessary to determine whether the resignation was initiated or resulted from the actions of the employer. I am of the view that whilst it is not necessary for the employer to directly coerce the resignation, the acts of the employer must be of sufficient seriousness and proximity to the act of resignation, that it can truly be said that the conduct of the employer " initiated " or " set in train " the termination of the employment. In this respect the applicant bears the onus of establishing on balance that there was a termination of employment at the initiative of the employer; that being the type of termination of employment in respect of which the Court has jurisdiction pursuant to s170CK(2)(f) of the Act.

148 Notwithstanding that an employee may have genuinely felt there was no alternative but to resign, the question must arise, I think, as to whether the employee's belief was reasonably held. This raises the consideration, as expressed in Italiano v Bethesda Hospital, of the seriousness of the employers' act and its proximity to the act of resignation. If, upon an objective analysis, it is found that resignation was an unreasonable response or overreaction to a particular incident, the employer can hardly be held responsible for the act of resignation.

149 An employee's resignation, of course, can sometimes be given "in the heat of the moment". Upon quiet and rational reflection, the resignation will be very much regretted and sought to be withdrawn. Where this occurs and the employer refuses to accept the withdrawal of resignation, a constructive dismissal might be found to have occurred. The question of a resignation in the heat of the moment was discussed in Cherry v Allied Express, 73 IR 305 at 309-310: The first and central consideration in this matter seems to me to be whether or not there was ever an intention on Mr Cherry's part to resign from his contract of carriage with Allied. Whilst I have come to the view that his actions in relation to Mr Poppleton were stupid and uncontrolled, in that he could have brought the matter to a ready end at two clear points in his conversation with Mr Poppleton, and his wild reaction merely added fuel to the fire, I do not consider that it can be said he manifested by his language, even if he used the words "stick it", that he intended to permanently sever the relationship; his language was ambiguous. I think the preferable view is that he created a mess for himself which resulted in Allied treating him as having that intention although on what is probably an insecure foundation. … The authorities to which I was taken suggest that where an employee is thought by the employer to have resigned in the course of a heated exchange, and by the use of ambiguous language, the employer who accepts words seemingly of resignation faces the risk of having a contrary finding of fact made. In Minato v Palmer Corporation Ltd (1995) 63 IR 357, Murphy JR extracted and applied the principle adopted in Britain where seemingly unambiguous words of termination are used. The judicial registrar's decision reads (at 361-362) The central issue here, as far as the respondent is concerned, is whether the applicant had resigned. ... The legal position is set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said: In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise ... However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight. Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows: If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objectively. The Commission has to determine the position which developed at the time and in this regard I conclude that Mr Cherry did not intend to, nor did he, offer his notice of termination of his contract of carriage. 150 I turn now to consider these principles in the context of the facts and circumstances of this case.

151 The applicant maintained that, since 1997 she was forced to endure an intolerable workplace environment, largely brought about by the aggressive and intimidating behaviour of her supervisor, Ms Chung. It was further alleged that the respondent ignored the intolerable workplace environment and thereby forced the applicant to resign.

152 Much was made of an incident in May 2000 concerning Bills of Lading. I shall deal with this matter shortly. The final incident, which led to the applicant's resignation, was the argument with Ms Chung over the office seating arrangements on 28 June 2001.

153 I would observe from the outset that I have no doubt that the applicant felt aggrieved, upset and unhappy with the deterioration in the relationship with Ms Chung. They had been friends (although the applicant says they were "colleagues").

154 However, one material fact seems to have been lost. Ms Chung was the applicant's supervisor. In my opinion, the applicant, at best, displayed uncooperative conduct and, at worst, insubordination in directly questioning and criticising her supervisor's authority. The applicant exceeded her own authority by removing office fixtures and instructing other staff where to sit without express approval.

155 I have no doubt Ms Chung is an excitable and, occasionally, highly charged individual. This was evident from her demeanour in the witness box. However, I am not satisfied that these traits can be characterised as amounting to aggressive or intimidatory behaviour. She conceded she often spoke loudly and waved her hands in conversation. She acknowledged that, in some instances, she might have been wrong in raising her voice against the applicant.

156 Overall, however, I found Ms Chung to be a truthful and believable witness. Attempts to discredit her through detailed and intensive cross-examination about largely irrelevant matters did not dent my faith in Ms Chung's testimony.

157 A number of incidents were identified over a period of many years in which it was alleged Ms Chung was aggressive and conducted herself inappropriately. Mr O'Connor pursued such questions as going to the credit of witnesses. With respect, this was nothing more than clutching at straws to bolster an otherwise weak case against Ms Chung's credit.

158 One such matter was the allegation that Ms Chung had refused the applicant's request for leave. Mr O'Connor referred to an e-mail (Ex"3") in which Ms Chung was asking her to take leave. As Ms Chung said in evidence "it doesn't make sense" that she would ask the applicant to take leave and then refuse her request. I would agree. Mr O'Connor sought to discredit Ms Chung over whether there was a holiday leave plan. I accept there was a practice of indicative leave requests, but there was no formal leave plan.

159 Mr O'Connor sought to draw parallels between the unfortunate overreaction of Ms Chung to the applicant's emotional response during the 28 June argument. He said the applicant's emotional reactions were understandable in these circumstances. He drew an analogy with pacifying a child who might be upset or distressed. The implication was that Ms Chung did not take steps to resolve or ameliorate the applicant's distress. With respect, the analogy takes the applicant's case nowhere. Let me state the bleedingly obvious - the applicant is not a child. She was required to behave as a reasonable adult employee.

160 Mr O'Connor asked some curious questions of Ms Chung. For example he questioned Ms Chung about tearing up the applicant's original leave application for two weeks' leave coinciding with her trip to Hong Kong (T.p15). Where this suggestion comes from is a complete mystery. Nowhere in the evidence of the applicant is this matter ever mentioned.

161 Similarly, Mr O'Connor asked Ms Chung if she had "influence" in the company. I confess that I have no idea what this questioning was directed to prove.

162 Mr O'Connor asked Ms Chung about a report she was alleged to have asked the applicant to prepare. It was obvious that Ms Chung had no idea what Mr O'Connor was talking about. She said there were hundreds of reports prepared. When he described it as a "super user" report, Ms Chung didn't even know what this was (T.p79). It was obvious to me Mr O'Connor was just plucking issues out of the air in the hope of discrediting Ms Chung.

163 Of course it was wrong for Ms Chung to lose her temper during the argument on 28 June 2001. She conceded as much; as did Mr Dahl. However, I can find no sound basis for concluding that this incident warranted the extreme step of the applicant's resignation. Her resignation was a complete overreaction.

164 Moreover, I do not accept that this incident was the culmination of a long and persistent deterioration in the applicant's relationship with Ms Chung. The evidence simply does not support this claim. For example: 1) In December 2000, the applicant and Ms Chung exchanged Christmas gifts. The applicant explained this away by claiming she did so because she was in fear of Ms Chung. This explanation, in my opinion is errant nonsense. 2) The applicant said Ms Chung would call her "stupid and incompetent." However on 30 December 2000, Ms Chung conducted a performance review of the applicant and appraised her as ''fully competent". Ms Chung's comments were: Well demonstrated TIP attitude but need to improve in confidence in decision making and empowerment to subordinate. The applicant's comment on her appraisal was: Thank you for Amelia's invaluable comment and motivation. I will do my personal best to improve and strengthen myself.

On 9 March 2001, Ms Chung celebrated fifteen years' service at a party hosted by Mr Dahl. Ms Chung specifically asked the applicant to attend. The applicant later wrote a glowing, unsolicited account of the event for the company newsletter in which she lavished praise on Ms Chung's character. This was an extraordinary response from someone who claims Ms Chung was intimidating and controlling.

Only six weeks before resigning Ms Chung promoted and nominated the applicant for leadership training in Hong Kong. The applicant thanked Mr Dahl and Ms Chung for the opportunity to attend (Ex"A"). In cross-examination, the applicant said she had been happy to attend this program and was very thankful Ms Chung had sent her. 5) Ms Chung recommended the applicant for promotion three times in six and a half years. 6) The conversation between the applicant and Ms Chung at the time of her resignation was calm and cordial. The applicant even thanked Ms Chung for her support.

165 Notwithstanding the vehemence and passion of her 2 July e-mail, in which she threatened to resign and take legal action, the applicant did not actually resign for another three weeks. If the workplace environment was as bad as she now makes out, I am astounded that she was willing to work for three more weeks; even after Mr Dahl offered her two weeks pay in lieu of notice.

166 This evidence does not sit comfortably with the applicant's words that the situation was "intolerable and insufferable" and she "felt intimidated and controlled by Ms Chung".

167 I would resolve the conflict of evidence between Ms Donnellan and the applicant clearly in Ms Donnellan's favour. I found Ms Donnellan to be a sincere and truthful witness. I prefer Ms Donnellan's accounts of conversations with the applicant. Specifically the applicant claimed she complained on many occasions about Ms Chung to Ms Donnellan. Ms Donnellan said this was not so. I accept Ms Donnellan's evidence.

168 Mr O'Connor put a series of questions to Ms Donnellan about incidents and conversations referred to in the applicant's affidavit and which did not involve Ms Donnellan. Ms Donnellan answered honestly that if these conversations did occur, they would have an (adverse) effect on the applicant. However, the questions were predicated on an assumption that the conversations were accurate. I do not accept that they were. The questions and answers therefore proved nothing.

169 Mr O'Connor put a number of questions to Ms Donnellan, arising from what was deposed to by the applicant, about certain intolerable situations and about how she (the applicant) felt. He asked Ms Donnellan for "yes" or "no" answers about situations Ms Donnellan wasn't even involved in. While the Commission allowed the questions, this evidence, in my opinion, had very little probative value.

170 Mr O'Connor sought to discredit Ms Donnellan's role as Human Resources Manager. He suggested she sat in her office waiting for employees to bring grievances to her. This was not true. Mr O'Connor distorted what Ms Donnellan had said.

171 He even asked about an employee, Doris Yeung, who had been denied leave some years earlier. Ms Donnellan hadn't commenced employment with the company at the time. Why ask her about such matters in order to adversely reflect on her role? It was utterly irrelevant.

172 Mr O'Connor asked questions of Ms Donnellan based on a assumption that other employees were upset with Ms Chung. There was no evidence that this was the situation at all.

173 Mr O'Connor closely questioned Ms Donnellan about the argument over the seating arrangements. Ms Donnellan could not recall the precise details of the discussion a week or so before the 28 June incident. Mr O'Connor appeared to be critical of her lack of recollection of detail. However, he confused this with her precise recollection of the detail of the 28 June incident. He said "suddenly you remember now do you?" However, these were about two completely different events. It was a most unwarranted and unfair question.

174 Despite Ms Donnellan's repeated evidence that she knew the applicant was upset on 28 June, Mr O'Connor persisted in asking Ms Donnellan the same question, over and over, for which an answer had been plainly given without qualification.

175 Mr O'Connor asked if Ms Donnellan was concerned with Ms Chung's management style. Having answered no, he then asked if the first occasion she was concerned about Ms Chung's management style was when Ms Chung went on a conflict resolution course. Then he attempted to twist Ms Donnellan's subsequent evidence in order to suggest she was concerned with Ms Chung's management style. It was a very unfair approach to questioning. Ms Donnellan had clearly stated that she had no concern with Ms Chung's management style.

176 Mr O'Connor asked Ms Donnellan a number of hypothetical questions - for example, if employees were forced to commit illegal acts, would that be of concern and would it affect an employees' wellbeing? There was no evidence of any illegal acts. It was a question, I should say, of very dubious relevance.

177 Without informing the Commission or the witness, Mr O'Connor then referred to his own notes - not the evidence - of what the applicant had said about "illegalities". He then proceeded to completely confuse two separate and distinct incidents by asking questions from his notes about an incident in the applicant's affidavit, which was totally unrelated to another paragraph in the same affidavit (paras 23 and 47 of the applicant's affidavit). Such questioning was less than helpful.

178 The cross-examination of Mr Dahl was no better than that of Ms Donnellan or Ms Chung. Mr O'Connor repeatedly twisted Mr Dahl's answers by asking him follow up questions based on what he had not said.

At a glance

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Judgment (236 paragraphs)

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Cases Cited (3)

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