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[2016] QIRC 34
General information, not legal advice.
Queensland Industrial Relations Commission
2016-03-24
Mr J
Original judgment source is linked above.
INDUSTRIAL LAW - DECISIONS GENERALLY - APPLICATION TO DISMISS - Where the jurisdiction of the Commission is not enlivened - Where there is no evidence the employee was dismissed - Where the applicant applied for an order for the substantive matter to be struck out - Whether the discretion to dismiss should be exercised.
Cook v CFP Management Pty Ltd [2006] QCA 215
Spencer v Dowling and Anor [1996] VSC 51; [1997] 2 VR 127
Allison v Bega Valley Council [1995] NSWIRComm 175
Ngo v Link Printing Pty Ltd (1999) 94 IR 375
Minato v Palmer Corporation Ltd (1995) 63 IR 357
Sovereign House Security Services Ltd v Savage [1989] IRLR 115
Marks v Melbourne Health [2011] FWA 4024
Commonwealth Bank of Australia v Stephen John Barker [2014] HCA 32
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Dr M. Spry of counsel, instructed by Crown Law for the applicant.
Mr J.D. Brown of McNamara and Associates for the respondent.
[1] The State of Queensland (South West Hospital and Health Service) ('the applicant') applies for orders pursuant to s 331(b) of the Industrial Relations Act 1999 ('the Act') to have the application for reinstatement under s 74 of the Act (TD/2015/108) filed by Ms Tania Crews-Bradley ('the respondent') struck out.
(a) An order from the Commission that the application for reinstatement be dismissed under s 331 of the Industrial Relations Act 1999 as:
(i) The application for reinstatement is incompetent for want of jurisdiction as there has been no 'dismissal' at the initiative of the employer; and
(ii) The Commission does not have the jurisdiction to order the remedies sought by the respondent;
(b) The respondent pay the applicant's costs of the application;
(c) Any other orders the Commission considers relevant in the circumstances.
[3] Sections 74(1) and 74(2) of the Act provide:
(1) If it is alleged that an employee has been unfairly dismissed, an application for reinstatement may be made to the Commission for the dismissal to be dealt with under this chapter.
[4] Section 331 of the Act provides:
The court or commission may, in an industrial cause -
(a) make a decision it considers just, and include in the decision a provision it considers appropriate for preventing or settling the industrial dispute, or dealing with the industrial matter, the cause relates to, without being restricted to any specific relief claimed by the parties to the cause; or
(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
(ii) further proceedings by the court or commission are not necessary or desirable in the public interest; or
(c) order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate."
[5] Ms Crews-Bradley was employed as a registered nurse (NG5) at the Cunnamulla Hospital, South West Hospital and Health Service.
[7] In her application for reinstatement she provides the following reasons for the dismissal:
"2. On 8 June 2015 the Applicant attended her place of employment at the Cunnamulla Hospital and met with the Director of Nursing, Ms Allison Evans. The Applicant requested two weeks leave. Ms Evans requested the Applicant sign a document which has effectively ended her employment.
[8] The following chronology sets out the relevant events:
Ms Crews-Bradley takes permanent position as a registered nurse at Cunnamulla Hospital
Ms Crews-Bradley attends the office of Ms Evans (Director of Nursing, Cunnamulla Hospital) with a medical certificate for 9 June 2015 - 21 June 2014. After discussion, Ms Crews-Bradley resigns, giving two weeks' notice, and Ms Evans accepts the resignation.
Ms Crews-Bradley is contacted later that day by Ms Evans and asked to provide letter of resignation. Ms Crews-Bradley provides letter to Ms Evans that afternoon.
Ms Crews-Bradley contacts Ms Schultz (CEO, SWHHS) and indicates she wants to be reinstated.
Ms Crews-Bradley contacts Ms Castles (HR Manager, SWHHS) and indicates she wants to be reinstated and have employments documents provided to her.
Ms Crews-Bradley files Application for Reinstatement with Queensland Industrial Relations Commission
[9] The factual background is conveniently set out in the affidavit of Alison Jean Evans. In that affidavit she deposes:[1]
"On 9 June 2015, in the morning at approximately 10:00am, I was in my office at the Cunnamulla Hospital. Ms Crews-Bradley knocked on the door of my office and asked if she could see me. I said yes and Ms Crews-Bradley entered my office and sat down.
Ms Crews-Bradley had not made an appointment to see me and I was not expecting her. Ms Crews-Bradley was not rostered on to work on 9 June 2015.
Ms Crews-Bradley handed me a medical certificate. She informed me that she was taking two weeks' sick leave and that as of that day she was resigning.
I was shocked at Ms Crews-Bradley's statement that she was resigning. I asked Ms Crews-Bradley if everything was alright and if there was anything I could do to help her. Ms Crews-Bradley informed me that she could no longer work as a nurse as her hearing and sight were deteriorating and she had lots of family issues.
This was the first time Ms Crews-Bradley had ever mentioned issues with her hearing and sight to me. I informed Ms Crews-Bradley that she could take time to think about the decision to resign. However, she declined this offer and said this was her final decision. (Emphasis added)
I told Ms Crews-Bradley that she had to do what was right for her and her family. Ms Crews-Bradley then got up and left my office. She did not say where she was going.
I was shocked about what had occurred and once Ms Crews-Bradley left my office, I contacted Ms Ann Thomas in the Service's Human Resources Department. I relayed to Ms Thomas what had taken place and informed Ms Thomas that Ms Crews-Bradley advised that she wanted to resign. I asked Ms Thomas what I should do. Ms Thomas informed me that Ms Crews-Bradley needed to put her intentions in a letter and give the letter to me.
After I spoke with Ms Thomas, I contacted Ms Crews-Bradley by text message and informed her words to the effect that if she wished to resign as of that day, then she needed to provide me with a letter of resignation. Ms Crews-Bradley responded by test message and informed me that she would drop in and provide me with a letter that afternoon. I have not kept a copy of my test messages to and from Ms Crews-Bradley on 9 June 2015.
In the afternoon on 9 June 2015, at approximately 4.30pm, Ms Crews-Bradley came to my office. Ms Crews-Bradley provided me with a letter of resignation.
I was aware from my human resources training that Ms Crews-Bradley also needed to sign a Separation Advice form. I therefore asked Ms Crews-Bradley to sign a Separation Advice form. I explained to Ms Crews-Bradley that this Separation Advice form went with the resignation letter she had provided me and pointed out where on the form she needed to sign.
I thanked Ms Crews-Bradley and wished her all the best. Ms Crews-Bradley then left my office."
[10] The resignation letter of 9 June 2015 read as follows:
It is with regret that I tender my resignation effective from the 21/6/2015, due to being on sick leave from today. I am committed to leaving the accommodation Don House in a clean and tidy order.
I would ask that all my pay owed would be handed over on the following pay day please. Thank you for having me and my family."
[11] It is the submission of the respondent is that she was constructively dismissed in the context that the applicant behaved in a way which rendered the applicant's conduct the real and effective initiator of the termination of her employment.
[12] In Cook v CFP Management Pty Ltd,[2] a decision of the Court of Appeal, Williams JA (with whom de Jersey CJ and Helman J concurred) at [17] wrote:
"The expression 'constructive dismissal' has not been widely used in Australian jurisprudence. It has been used in a number of English decisions where the court was concerned with statutory provisions extending the meaning of 'dismissal' to include circumstances where the employee was entitled to terminate or was justified in terminating the employment contract because of conduct of the employer. But the expression is not recognised by the common law, and there are no applicable statutes here extending the definition of dismissal. In most Australian cases where there has been limited reference to 'constructive dismissal', the reference has essentially been to conduct on the part of the employer which would constitute repudiation of the contract.
Hayne JA referred to some of the English cases dealing with the concept on pages 159-161 of his reasons in Spencer v Dowling and Anor [1996] VSC 51; [1997] 2 VR 127. At 160 he said:
'But the fundamental question presented by the so-called 'constructive dismissal' cases is whether the employer has evinced an intention no longer to be bound by the contract of employment, i.e. whether the employer has repudiated the contract of employment. No doubt the question whether conduct does evince such an intention is to be judged objectively.'
On the previous page (159) he stated what, in my respectful view, is the appropriate test. In considering whether or not there had been a dismissal of the complainant, he said: "Of course, that is not the form of what happened; the complainant tendered her resignation. But the point is not [to] be determined according to the form of what occurred. Was the substance of it that the respondent dismissed the complainant?" That, to my mind, is the correct approach in law. One does not look merely to the form which the termination took, but rather one looks for what was the substantial cause of the termination. If by conduct the employer had repudiated the contract of employment without giving a formal notice evidencing that the employment was terminated, the employee is entitled to give a notice in effect electing to accept the employer's repudiation."
[13] In Allison v Bega Valley Council,[3] the Full Bench of the Industrial Relations Commission of New South Wales wrote:
"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."
[14] There is no evidence before the Commission to support a conclusion that the employer has evinced an intention to no longer be bound by the contract of employment, and there is no evidence of conduct on the part of the employer that might be considered to have prompted the resignation.
[15] It was submitted by the respondent that "At the time of resignation the Respondent did not intend to resign from her position, but felt she had no option considering her condition. Had the Respondent been given an opportunity to consider her resignation and how the resignation would effect [sic] her future then she would not have resigned."
[16] The respondent told Ms Evans that she was resigning because she could no longer work as a nurse as her hearing and sight were deteriorating and that she had a lot of family issues.
[17] The uncontested evidence of Ms Evans was the respondent was asked whether she would like time to think about her decision to resign. However, the respondent declined the offer and said her decision was final.
"The legal position was 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 ...' "
[19] In Ngo, the Commission also dealt with the question of what constituted a reasonable amount of time for the employer to give the employee to reconsider their decision. In that case, the employee resigned in the afternoon, finished his shift and went home, and when approached by his employer at work at 11.30 am the following day, indicated he had changed his mind. The Commission found the employee had enjoyed ample time during which he might have reconsidered his decision to resign. In the case presently before the Commission, the respondent resigned at approximately 10.30 am on the morning of 9 June 2016 and then attended again at approximately 4.30 pm to hand in her written resignation. She did not contact her employer in the days immediately following. It cannot be said the respondent did not have time to reconsider her decision.
[20] The respondent made no contact with her employer between 21 June 2015, the date upon which her resignation took effect, until she telephoned Ms Glynis Schultz on 17 July 2015.
[21] The reason the respondent sought reinstatement is evidenced in the affidavit of Ms Katie Castles, the Manager for the Human Resource Service at the SWHHS by telephone on 23 July 2015. In her affidavit she deposes:
"I recall that during my telephone discussion with Ms Crew-Bradly on 23 July 2015, she informed me that she had learned since her resignation that she had been unable to claim QSuper because payments to QSuper had stopped since her resignation. Ms Crew-Bradley asked me if she could be reinstated from the date of her resignation so that she could access her QSuper income protection benefit."[6]
[22] I accept that the purpose for which the respondent sought reinstatement was to access her QSuper income protection benefit. An order for reinstatement made by the Commission is designed to restore the employment relationship after a finding that an employee has been unfairly dismissed. It is not designed to allow an applicant to gain reinstatement in order to obtain a benefit that they have lost as a consequence of resignation.
[23] No evidence has been submitted to the Commission to support a conclusion that she was dismissed.
[24] The respondent also submitted that the letter of resignation was not an effective notice of resignation. To support the contention, the respondent relies on Marks v Melbourne Health[7] ('Marks').
[25] The case of Marks concerned an application brought under the Fair Work Act 2009 (Cth) alleging the termination of employment was unfair within the meaning of s 385 of that Act. The employer objected to the application on the basis of jurisdictional grounds; namely, the employee had resigned rather than being dismissed. The employer argued two emails sent by the employee were evidence of a notice of resignation. However, the Commission found the emails could not be regarded as a resignation or notice of resignation. The Commission concluded that at most, the emails were an expression of future intent to resign at an indeterminate date. Importantly, the Commission concluded that the employer was aware that employee was mentally ill, he was under treatment for his illness and his professed intention to resign should, in the circumstances, not have been relied upon.
[26] The facts in Marks contrast significantly from the matter presently before the Commission. As noted above, the letter from the employee to the employer indicated an intention to resign in the future, and was sent at a time when the employee was distressed and unwell, a fact known to the employer at time the resignation was offered. It was, therefore, not an effective notice of resignation but rather constituted a termination of employment at the employer's initiative.
[27] The respondent submitted, apparently in reliance on Marks:
"Hindsight would have been invaluable to both parties. Had the respondent known she was suffering from leukaemia, rather than just being stressed and fatigued, then she would never have resigned. Likewise, had the employer known she was suffering from leukaemia, it's possible they may have offered her extended unpaid leave. The fact that the employer now knows of the medical circumstances and refused to reinstate the respondent, even though there'd be no prejudice to the employer, shows that the applicant desired for the respondent's resignation and a desire for the resignation amounts to an -dismissal that's harsh, unjust and unfair."[8]
[28] The above submission, is in my view, misconceived and fatal to the respondent's ability to resist the application. It acknowledges that the respondent resigned because she was stressed and fatigued. It recognises that had the respondent been aware of the fact that she was suffering from leukaemia then she would not have resigned. Further, it acknowledges that the applicant was not, at the time of the resignation, aware of the respondent's "medical circumstances". More troubling, the respondent submits that the applicant was under some obligation to reinstate the respondent even though the respondent had, it would seem, freely resigned. Notwithstanding all of the above, and in the absence of evidence to support the contention, the respondent submits that the applicant desired for the respondent's resignation and as such, constituted a dismissal that was harsh, unjust and unfair.
[29] There is no evidence to support the submission the respondent "... presented to her employer in a vulnerable state." No evidence was submitted to the Commission to suggest that at the time of her resignation, the respondent's mental capacity was impaired and the applicant was aware of that fact.
[30] It was further submitted by the respondent that:
"It is an implied condition of employment that the employer will not conduct himself in a manner that is likely to damage the relationship of confidence and trust between the employer and employee. Breach of trust entitles an employee to treat himself as unfairly dismissed."
[31] Putting aside the fact that there is no evidence to support such a submission, the position in Australia is that a term of mutual trust and confidence should not be implied by law in employment contracts.
[32] The High Court in Commonwealth Bank of Australia v Stephen John Barker[9] expressed the view employment contracts do not contain a term that neither the employer nor the employee will, without reasonable cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between them. The High Court held that the term was not implied in law in employment contracts generally.
[33] Section 331(b)(ii) gives the Commission the discretion to dismiss the matter if further proceedings are not necessary or desirable in the public interest.
[34] In O'Sullivan v. Farrer[10] Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression "in the public interest". Their honours wrote:
Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgement to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounce] definitely extraneous to any objects the legislature could have had in mind'.
[35] The discretion conferred under s 331 must be exercised judicially.
[36] The evidence before the Commission does not support a conclusion that the respondent has been dismissed. As a consequence, the Commission's jurisdiction to hear the matter has not been enlivened.
[37] Having regard to all matters put to the Commission, and for the reasons set out above, I have formed the view this is an appropriate matter in which I should exercise my discretion, pursuant to s 331(b)(ii) of the Act, to dismiss a cause if it is not in the public interest to pursue the case further.
[38] I am of the view that there is no public interest in permitting TD/2015/48 to progress any further and, accordingly, by virtue of s 331(b)(ii) of the Act, I order that the appeal, being TD/2015/108, be dismissed.
[39] I will hear the parties in relation to costs in respect of this application (B/2015/48) and the substantive proceedings (TD/2015/108).
[1] Affidavit of Ms Allison Evans, [5]-[15].
[2] [2006] QCA 215 [17]-[19].
[4] (1999) 94 IR 375, [12].
[5] (1995) 63 IR 357, 361‒362
[6] Affidavit of Ms Katie Castles, [8].
State of Queensland (South West Hospital and Health Service)
Crews-Bradley [2016] QIRC 34
(1995) 63 IR 357
(1999) 94 IR 375
(1989) 168 CLR 210