Perkins v Grace Worldwide - [2002] NSWIRComm 347 - NSWIRComm 1998 case summary — Zoe

NSWNSWIRComm

Perkins v Grace Worldwide

[2002] NSWIRComm 347

Industrial Relations Commission (NSW)|1998-05-28|Before: Sams DP, Schmidt JJ, Schmidt J, Walton VP

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1998-05-28

Before

Sams DP, Schmidt JJ, Schmidt J, Walton VP

Source

Original judgment source is linked above.

Judgment (75 paragraphs)

[1]

CITATION : Tania Lever and Aboriginal Children's Services Ltd [2002] NSWIRComm 347 APPLICANT: PARTIES : Ms T Lever RESPONDENT: Aboriginal Children's Services Ltd FILE NUMBER: 2934 of 2002 CORAM: Sams DP Termination of employment - unfair dismissal - applicant resigned - principles of constructive dismissal - whether termination "harsh, unreasonable or unjust" - reinstatement sought - appropriate relief. CATCHWORDS : Held, applicant's authority and status undermined - applicant forced to resign - employer the effective initiator of the termination of employment - conflict of interest - resignation amounted to constructive dismissal - dismissal "harsh, unreasonable and unjust" - reinstatement impractical - compensation orderd. LEGISLATION CITED : Industrial Relations Act 1996 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Hollingsworth v Commissioner of Police (No.2) (1999) 88 IR 282 Bankstown City Council v Paris (1999) 93 IR 209 Outboard World v Muir (1993) 51 IR 167 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273). Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 Ward v Mobile Innovations 2002 IRComm 287 Allison v Bega Valley Council (1995) 63 IR 68 CASES CITED : Spanish Club Ltd v Bounouar (1999) 94 IR 173 Social and Community Services Employees (State) Award 329 IG 833 Mohazab v Dick Smith Electronics (1995) 62 IR 205 Minato v Palmer Corporation Ltd (1995) 63 IR 357 Grout v Gunnedah Shire Council (1994) 125 ALR 355 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 St Vincents Hospital Sydney Limited 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 Police Service of New South Wales v Batton (2000) 98 IR 154 HEARING DATES: 10/29/2002 DATE OF JUDGMENT: 12/17/2002

[30]

26 The applicant believed that her treatment by the Board and the redundancy of her sister were part of a decision by the Board to dismiss her. However, she decided to resign. Her letter of resignation was expressed in the following terms: Dear Board Members, It is with deep regret that I have no choice but to resign as the Principal Officer of the Aboriginal Children's Service. This has come about after the treatment of the Board at the last Board of Directors meeting. At that meeting I was humiliated a number of times in front of a room full of people and a comment was made by one Director that they were going to get rid of dead wood. I was also disappointed with the way the Board did not treat my position fairly when dealing with the issue of travel allowance payable to family members. I have worked long hours and worked extremely hard to fulfil the requirements of the Principal Officers position but because of the lack of respect, the screaming abuse, the lack of natural fairness, my confidence in myself and my ability to do my job has been damaged. I have worked for Aboriginal Children's Service for over 13 years and have always been committed to the children of this service. I had hoped that with counselling I would be able to return to work however, I have now learnt that my sister has, on short notice, been made redundant from the organisation. I see this as a personal attack on me and my family when I know that Yvette has performed her duties. I cannot see how I can continue working with Aboriginal Children's Service when there is discrimination by the Directors against my family and this action has hurt myself and my family deeply and as I could not bear to see any further stress and harm come to them I have no choice but to resign. I would like to give two (2) weeks notice from today's date being 8th May 2002, my employment ceasing with the service on the 24th May 2002. It would be greatly appreciated if all my entitlements could be paid into my bank account prior to the 24th May 2002.

[50]

45 The frequently cited authority is Allison v Bega Valley Council (1995) 63 IR 68 where a Full Bench of the Commission said at pp 72 and 73: 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.