Moore v Secretary, Ministry of Health on behalf Northern New South Wales Local Health District

Industrial Relations Commission (NSW)|2020-02-26

K Bowden of the respondent (respondent) File Number(s): 2019/339496

Judgment

Mitchell Moore was employed by the respondent as a Health and Security Assistant (HASA) at Kyogle Multi-Purpose Health Service (the Health facility). The Health facility falls under the auspices of the Northern New South Wales Local Health District, which in turn forms part of the New South Wales Ministry of Health.
On 22 October 2019 Mr Moore filed with the industrial registry an application for relief in relation to an unfair dismissal ("Application") pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act"). In the Application Mr Moore says that he was dismissed on 8 October 2019.
When this matter was before the Commission for conciliation the respondent raised a jurisdictional objection to the Application. It contended that Mr Moore had resigned his employment by way of email on 6 October 2019 giving two weeks' notice and that the respondent had accepted his resignation.
This decision determines the jurisdictional objection which has been raised by the respondent, namely, whether Mr Moore resigned his employment or if his employment was terminated at the initiative of the respondent. The matter will only proceed if the Commission finds that Mr Moore did not resign his employment.
The hearing of the respondent's objection took place on 26 February 2020. Mr Moore was represented by Mr Maroney of the Health Services Union (HSU) while the respondent was represented by Ms Bowden.

Background

Mr Moore commenced employment with the respondent in November 2014 on a full-time basis as a HASA. He is in his mid-30s and is a single parent.
On several occasions during the course of his employment, Mr Moore has had his hours reduced from full-time to part-time on a temporary basis.
In March 2019, Mr Moore injured his back at work and commenced a period of workers compensation leave.
The respondent had some concerns with respect to the performance of Mr Moore. In evidence were two letters dated 26 April 2019 and 30 April 2019 inviting Mr Moore to a corrective counselling meeting from Ms Martin. The letters are in the same terms except that they provide for different dates upon which Mr Moore is required to meet with the respondent for the meeting. The concerns were predominately about poor attendance, along with a, "Repeated concerns….regarding the poor standard of cleaning conducted by you."
The meeting with respect to those matters was delayed for reasons including Mr Moore's absence from the workplace due to his workplace injury and Ms Martin taking a period of leave.
Ms Martin gave evidence that the likely next step the respondent would have taken after meeting with Mr Moore with respect to the performance concerns would have been to place him on a performance improvement plan. Mr Moore gave evidence to the effect that he did not anticipate that there would be a formal disciplinary outcome flowing from the meeting.
In late September and early October 2019, Mr Moore had discussions with Mr Kelly about wanting to reduce his hours of work with the respondent and become a casual.
On Sunday, 6 October 2019 Mr Moore wrote to Ms Martin, Ms Diane Frank (one of Mr Moore's line managers) and Mr Kelly in an email titled, "reducing my hours to casual" in the following terms: Im emailing you to give my two weeks' notice to reduce myself from permeate to casual as of two day 6/10/19 as of my last doctor's appointment I was cleared to go to full time hours hurting myself at work after doing this new roster for over two years and complaining that I do not get to see my kids having this time off I have seen how much I have been missing out on and how the roster for the HAS is not at all good for a single dad like myself so I have decided I want to go back to casual after five years when I started this job was perfect I could work full time and see my boys these last few years have been hard and ive missed out on so much. i do love working here the saff are amazing and I know I have been missed by them .but i have to do what I think is write bye my kids as they are only young once I do hope I will get called if there are shifts for a casual thanks for your support and look forward to being a casual on the roster best wishes Mitchell Moore ill be in the usa so if you need to contact me feel free to call or email me at mooremuscle@hotmail.com (The email has been reproduced as it appears in the evidence)
Monday, 7 October 2019 was a public holiday and Mr Moore commenced a pre-planned overseas holiday on approved leave.
At 11:28 am, Tuesday, 8 October 2019, Ms Martin responded to Mr Moore's email above as follows: Thank you for emailing your resignation from your permanent fulltime Health and Security Assistant position. I wish you all the very best in your future employment opportunities. All positions, including casual positions, are recruited through a comparative merit selection process. You may apply for a casual HSA position when we next advertise.
Ms Martin did not copy anyone else into this email.
On the same day this email was sent, Mr Moore sent a text message to a work colleague that, "Nancy has sacked me can you please get peter to sort this out as I was told I could go back to casual. .now she is getting rid of me … plz get peter straight on to this for me".
The message was forwarded to Mr (Peter) Kelly by the work colleague the same day.
On Wednesday 9 October 2019, Mr Kelly called Ms Martin at around 9 am. Mr Kelly deposed that a conversation to the following effect took place: Me: Why are you not allowing Mitch to continue with casual employment? I would like this fixed for Mitch. If it is not, the Union will lodge a dispute for discrimination with respect to Mitch's union activity. Ms Martin: I will get back to you

Mr Kelly received messages directly from Mr Moore on 9 October 2019, again asserting that Ms Martin was trying to terminate his employment: Moore: Did you see Nancy is just trying to get rid of me That's fucked she carnt do that Mr Kelly: Yep I'm on to it now. Just spoke to her and awaiting a response Moore: Cheers bro

At 12:26 pm on 9 October, Ms Martin emailed Mr Kelly in the following terms: Dear Peter, Further to your phone call earlier today with respect to Mr Moore, I note we have no evidence you are authorised to raise concerns on his behalf. I am not prepared to discuss confidential employment matters with you without appropriate consents. I suggest you refer any queries through to NNSWLHD - Industrial@ health.nsw.gov.au Nancy
Mr Kelly responded to Ms Martin at 12:45 pm on the same day as follows: Hi Nancy, I have the authority to represent Mr Moore. Again the HSU asks that our member be allowed to be placed into the casual pool for HSA's. Please respond to this request within 48 hours. Regards Peter
A further exchange between Mr Kelly and Mr Moore occurred on 11 October 2019 wherein Mr Moore followed up Mr Kelly with respect to the situation and indicated that he was "stressed out" that he will not have a job.
Mr Kelly followed up Ms Martin at 12:45 pm on the same day as follows: Hi Nancy, It has now been 48 hours. Can you or Richard provide a response? Regards, Peter
A response to the email above was provided by Richard Buss, Director of Workforce at 1:18 pm the same day as follows: Peter I note that Nancy has sent a reply on the 9th October requesting that you correspond through the industrial email address NNSWLHD - Industrial@ health.nsw.gov.au. The assumption was that you would provide a level of detail to your initial request so that this could be assessed by the District. My understanding is that a resignation was received and this has been accepted by the LHD. This is usual practice and process. It would be useful if you have any ongoing concerns if you could formally provide these to the District. Many thanks Richard
At 1:28 pm the same day, Mr Kelly responded to the email from Mr Buss above as follows: Richard Our member asked to be placed on the casual pool upon resigning his permanent employment due his parental responsibilities. We ask that he simply be placed on the casual pool and then the matter can be settled. Regards Peter
At 1:29 pm on 11 October 2019, Mr Kelly wrote to Mr Wayne Jones, Chief Executive forwarding the email of Mr Moore dated 6 October 2019 in the following terms: Hi Wayne I refer to the below email. Our member has resigned his permanent employment as he can no longer continue to work to the roster due to him being a single parent. A request was made for him to be able to be placed on the casual list. This has been denied by Nancy Martin and Richard Buss. There should be some compassion showed towards a single parent. I asked that it be allowed. Regards Peter
Mr Kelly received a response from Mr Jones in the following terms at 4:49 pm on the same day: Peter, This particular staff member has some performance matters that were not concluded by the time he resigned from his position. We do not usually retain staff as casual employees in the circumstances. Regards Wayne Jones
On 14 October 2019 Mr Moore wrote to Ms Martin in the following terms: Hi Nancy I formally ask to that my resignation of 6 October 2019 be withdrawn. I wish to remain an employee and I request a meeting with you on my return from overseas to discuss my responsibilities as a single parent and how you might assist me to be able to fulfil those responsibilities. Regards Mitchell Moore
This communication was sent to both Ms Martin (by Mr Moore) and Mr Buss (by Mr Kelly). In short, the respondent would not retract the steps it had taken to end Mr Moore's employment, asserting that Mr Moore had resigned his employment and confirming they would not allow him to retract it.
Mr Moore has not been made a casual by the respondent and is no longer employed by them.
It is in these circumstances that the matter is before the Commission.

Consideration

The single question that must be determined by the Commission in this matter is whether Mr Moore resigned his employment or if he was dismissed by the respondent.
It is precondition to the Commission's jurisdiction under s 84 that an employee has been dismissed by their employer. The terms "dismissal" and "dismissed" are not defined in the Act.
In the oft quoted case of Allison v Bega Valley Council (1995) 63 IR 68 at 72 the Full Bench stated that the question to be posed is "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?".
To a similar effect, in Kelleher and Wagga Wagga Base Hospital [2004] NSWIRComm 187 Sams DP stated at [96]: "The correct test is whether by the actions or inactions of the employer, it was the effective initiator of the termination of employment."
To establish a resignation, as opposed to a dismissal, it is necessary to demonstrate that Mr Moore voluntarily left his employment: Gunnedah Shire Council v Grout (1995) 62 IR 150.
The parties addressed the Commission with respect to a recently decided matter by Commissioner Sloan in Richie Robles v Health Secretary in respect of Western Sydney Local Health District [2019] NSWIRComm 1028 which considered whether a registered nurse resigned in very similar circumstances to the present case: see in particular [27]-[52] of the decision.
The respondent contends that Mr Moore's email of 6 October 2019 amounted to a resignation from his employment.
During the hearing Ms Martin reiterated that Mr Moore could be taken to have resigned, as there was no automatic transfer from a permanent to a casual position.
In my view, the email of Mr Moore dated 6 October 2019 does not constitute a statement of resignation. Mr Moore was relinquishing his full-time, permanent position, but he clearly intended that the employment relationship continue, with him moving into a casual role with the respondent. I do not accept the respondent's argument that by stating "I do hope I will get called in if there are shifts for casuals" Mr Moore was demonstrating that he understood that casual employment was not guaranteed. This is clearly a reference to the fact that work is not guaranteed to casual employees.
Moreover, an analysis of the evidence supports the conclusion that Mr Moore did not intend to resign from his employment and was operating, erroneously according to the respondent, on the assumption that he was able to convert his employment from full-time to casual. This is clear from the terms of the 6 October 2019 email itself and consistent with the communications he had with a work colleague and Mr Kelly (on several occasions) upon receiving Mr Martin's confirmation of his "resignation": see [22]; [25] and [28] above. It is also consistent with his attempt to undo the email of 6 October 2019 with his request to the respondent on 14 October 2019 to withdraw the purported resignation: see [34].
I reject the respondent's submission that Mr Moore in fact intended to resign his employment with the respondent due to the performance concerns raised by the respondent which from their perspective, remained outstanding. This was not supported by the evidence, especially as Mr Moore gave evidence (which I accept) that he did not understand that the performance issue would go away by converting to a casual employee.
The respondent submitted that Mr Moore was unable to "unilaterally" transfer his employment to casual. Ms Martin gave evidence that she accepted and completed Mr Moore's resignation on 8 October 2019. She sought advice about whether Mr Moore was able to convert to casual which confirmed in her mind that he could not.
The initial evidence of Ms Martin was that Mr Moore would have to go through a merit based selection process to obtain employment as a casual. However, it became clear at the hearing that the respondent's processes did not preclude the respondent from changing an employee's engagement from full-time to casual, nor require a merit based selection process to take place. However, due to the outstanding performance concerns with Mr Moore, a decision was made by the respondent they would not allow him to simply convert to a casual employee.
What is obvious from the form and content of Mr Moore's email of 6 October 2019 is that it is not written with the precision one would expect from a person experienced in Human Resource matters, such as a Union Official or lawyer. Especially in light of this, it would have been prudent for the respondent, once deciding that it would not convert Mr Moore to a casual, to contact him directly, explain this decision to him and ask whether he intended to resign his employment from the respondent nonetheless. This is particularly the case given the 6 October 2019 email concludes by stating that "if you need to contact me feel free to call or email me….". Instead, the respondent accepted the purported resignation prior to any communication with Mr Moore.
I note also, the confusion that has led to the termination of Mr Moore's employment may also have been avoided if he had spoken to Ms Martin or another manager and confirmed if he was able to convert from a full-time employee to casual before sending the email of 6 October 2019.
However, in all of the circumstances I find that Mr Moore did not resign from his employment with the respondent. The evidence does not support a finding that he voluntarily left the employment. The employment relationship was brought to an end by the actions of the respondent, acting as though Mr Moore had resigned when he had not. These actions were the "real and effective" cause of the termination of the contract of employment.

Orders 1. The application made by Mitchell Moore pursuant to s 84 of the Industrial Relations Act 1996 (NSW) is accepted. 2. The matter is listed for directions at 2 pm am on 4 March 2020. Janine Webster Commissioner

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2020

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