Transport Workers’ Union of New South Wales (on behalf of Diane McKenzie) and WSN Environmental Solutions [2010] NSWIRComm 27

Industrial Relations Commission (NSW)|2010-07-01|Before: Sams DP, Mr J

CITATION: Transport Workers' Union of New South Wales (on behalf of Diane McKenzie) and WSN Environmental Solutions [2010] NSWIRComm 27

APPLICANT Transport Workers' Union of New South Wales on behalf of Diane McKenzie PARTIES: RESPONDENT WSN Environmental Solutions

TERMINATION OF EMPLOYMENT - applicant's resignation - whether applicant constructively dismissed - permanent employee requests transfer - alleged temporary transfer to new location - requirement for internal recruitment process - delay in interviewing candidates - errors in pay - new uniforms requested - failure to provide pay slips - conversations with managers - conflict of evidence - stress and anxiety caused by uncertainty - resignation withdrawn five days later - principles of constructive dismissal - whether unilateral withdrawal of resignation requires consent of both parties - procedural unfairness - principles considered - reinstatement sought, without loss of continuity or remuneration. CATCHWORDS: CONSTRUCTIVE DISMISSAL - applicant's treatment appalling - no guarantees of returning to former position - applicant preferred candidate - other candidates withdraw applications - applicant told no job for her to go back to - evidence of applicant preferred - reasonable that applicant would be anxious, stressed and upset - applicant only remaining candidate - respondent accepted the applicant was upset and behaving out of character - delay in recruitment process inexplicable - resignation given in state of emotional stress - withdrawal of resignation warrants departure from general rule - no reason why withdrawal should have been considered - actions of employer demonstrate that it was the real and effective initiator of the termination of employment - constructive dismissal established - dismissal 'harsh, unreasonable and unjust' - procedural unfairness established - rejection of claims of impracticality of reinstatement - reinstatement primary remedy - orders for reinstatement, no loss of continuity and lost remuneration.

LEGISLATION CITED: Industrial Relations Act 1996

Achal v Electrolux Pty Ltd (1993) 50 IR 236 Allison v Bega Valley Council (1995) 63 IR 68 Birrell v Australian National Airlines Commission (1984) 9 IR 101 Byrne & Frew v Australia Airlines Ltd (1995) 185 CLR 410 Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489 Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 CASES CITED: New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89 Outboard World Pty Limited t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 P O'Meara and Stanley Works Pty Ltd (U2006/2874), 11 August 2006, PR973462 Peters v Jenolan Caves Reserve Trust (1998) 86 IR 162 Sydney Ferries Corporation v Seamen's Union of Australia, NSW Branch on behalf of Levy (2009) 186 IR 99 Thomson v Orica Australia Pty Ltd [2002] FCA 939 Ward v Mobile Innovations Limited [2002] NSWIRComm 287

APPLICANT Mr O Fagir Transport Workers' Union of New South Wales LEGAL REPRESENTATIVES: RESPONDENT Mr J Darams of Counsel Solicitor: Ms C Robinson Clayton Utz Lawyers

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by Transport Workers' Union of New South Wales of a dispute with WSN Environmental Solutions re alleged dismissal

Transport Workers' Union of New South Wales (on behalf of Diane McKenzie) and WSN Environmental Solutions

Application by Transport Workers' Union of New South Wales on behalf of its member Diane McKenzie re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 These two matters - a dispute notification filed by the Transport Workers' Union of New South Wales ('the Union') on 7 October 2009, pursuant to s 130 of the Industrial Relations Act 1996 ('the Act') and an unfair dismissal application, pursuant to Pt 6 Ch 2 of the Act, filed by the Union on the same day, concern essentially the same subject matter; namely, a claim by the Union that its member, Ms Diane McKenzie, felt she had been forced to resign from her position as a weighbridge operator with WSN Environmental Solutions ('the respondent'). Her resignation was said to have been brought about by the stress and anxiety she suffered which was caused by the lack of security in her position, following misrepresentations made to her by the respondent's management. Ms McKenzie's resignation was expressed in a letter from her, dated 14 September 2009, in the following terms: Dear Garry, I wish to give you 2 weeks notice of my resignation from WSN. Last working day being Thursday 24th Sept 2009. Yours Truly, Diane McKenzie.

2 The respondent strenuously denied asking, encouraging, or otherwise seeking Ms McKenzie's resignation and it had accepted her resignation. Accordingly, the respondent maintained that as it had not terminated her employment, there was no dismissal and the Commission had no jurisdiction to determine the matter. 3 Notwithstanding the parties' positions, the Commission chaired private conferences with them after joining the two matters on 15 October 2009. However, no settlement could be reached. The Commission made a finding of unsuccessful conciliation, pursuant to s 87 of the Act, and issued a certificate of unsuccessful conciliation, pursuant to s 135 of the Act, in respect to the dispute notification. Directions were issued for an arbitration of the matter on 8 and 9 December 2009. THE EVIDENCE Applicant's Evidence 4 Ms McKenzie had been employed as a weighbridge operator for three and a half years; firstly as a casual employee and then as a permanent employee from 14 May 2006. Ms McKenzie first worked at the respondent's Ryde site from 5:30am to 2:00pm, Monday to Friday and 6:30am to 5:30pm on Sunday. In April 2009, Ms McKenzie transferred to the respondent's Artarmon site, working night shifts from Sunday to Friday. 5 Ms McKenzie said she became interested in working night shifts for family reasons (caring for two grandchildren). On becoming aware of an available night shift at Artarmon, she had called the then Manager, Mr Thomas Kelly, and asked if the position was available. As the nature of Ms McKenzie's transfer is a particularly relevant issue in this matter, I record her evidence of this conversation with Mr Kelly: Kellie (sic): Diana, the position is becoming available towards the end of May. Are you interested?

I knew that positions at WSN were usually always offered to internal staff first so I asked:

McKenzie: Has the position been offered to the staff at Artarmon?

Kellie: It will just be a simple transfer. You can start there in late May. The paperwork will follow.

Kellie: Karen Fletcher from Chullora will take your position, it will be like a "domino effect".

6 Before transferring to Artarmon, Ms McKenzie asked Mr Kelly and Mr Michael Mathers (Centre Manager, Ryde and Artarmon Sites) if there was any paperwork to follow, as she was expecting a letter of offer. She was told the paperwork was signed and ready to go. 7 Ms McKenzie said that within the first week of starting at Artarmon problems had arisen. Two employees at Artarmon told her that they were entitled to the position, because they were working there already. In addition, she said she had problems with her payslips in that she was not receiving them and there were incorrect calculations, particularly for the Sunday shift. She recorded a number of complaints made to Mr Kelly about her payslips and the incorrect calculations. On two occasions, she turned up for work on a Sunday, to find another employee performing her shift. 8 Ms McKenzie said that in late June 2009, she learnt that her position was to be advertised. She called Mr Kelly and had the following conversation: Diane: I've heard about my job being advertised. You told me it was going to be a simple transfer. I would not have come over here if I'd known there were two girls [Kristina and Scarlet] here that wanted it and have worked here for over 12 months. Wouldn't it be easier if I came back to Ryde? Kellie: You wanted the position. Aren't you happy? Diane: I'm very happy if it all runs well. Kellie: You have to go through procedure like anyone. Diane: What happens if I don't get it? Can I go back to Ryde? Kellie: You can't go back to Ryde, you just have to go through the procedure. 9 Ms McKenzie submitted an application for her position on 20 July 2009. She was aware that a Ms Scarlett McAlary had been interviewed shortly after the close of applications. However, a month had passed since and she still had not been contacted. 10 In early August 2009, Mr Gary Powers became the Site Manager and Ms McKenzie asked him about the position. She claimed she was becoming very stressed at not knowing what was happening. On 13 August 2009, she complained to Mr Powers that she could not cope with the stress and not knowing what was happening. Mr Powers agreed to interview her the following Monday. At the interview, Ms McKenzie told Mr Powers (and another person, Mr Bill Whybrew, Senior Operator) of the problems with her pay and said she did not want to work Sundays until her position became clear. She said it was a short interview and Mr Powers told her he had one more person to interview (Ms Kapagiannos). 11 Ms McKenzie deposed that she did not receive any feedback from the interview and was repeatedly told that the Managers had not made a decision. She said she became very stressed, as she did not know whether she would continue to have a job. 12 On 14 September 2009, Ms McKenzie called Mr Powers. She deposed to the following conversation: Diane: Have you made a decision yet? Powers: I can't tell you yet. Diane: I'm so stressed. I've had pay issue, staff working my shifts, I can't sleep. You won't make anything simple, you have to make it hard. I've been told I can't go back to Ryde, I may as well resign. 13 Ms McKenzie said that by this time she had become very stressed at the "total uncertainty with her position and problems with her pay, tension with the other employees and another employee doing her Sunday shifts". She said her decision to resign was a result of these circumstances. It probably was not the right decision. 14 Ms McKenzie said she sent a text message to Mr Powers on 19 September 2009, as follows: Gary, after considering my position I feel that due to high emotional stress I want to rethink my resignation if possible. I wish to stay on the books at WSN as a casual as I feel that they are needed on most sites. I would appreciate if you could contact me re this matter when you are free. Thanks Di. 15 On 24 September 2009, Ms McKenzie wrote to the respondent and said, inter alia: In May, 2009 I was transferred with my consent to the permanent position on afternoon shift at Artarmon. As a result I started working at Artarmon. I was told that the letter of offer was a formality and would follow shortly. After I was transferred to Artarmon I was then told my position there was to be advertised and that I had to apply again for the position, which I did. I have received no answer to that application. This was very unsettling to me as I had been happy and content with my work at Ryde and was happy and content with the transfer to Artarmon. Despite being an Artarmon employee and working the afternoon shift, my wages were not adjusted although I was meant to be on a higher pay due to penalty rates and meant to be on the books at Artarmon. The uncertainty at Artarmon has been upsetting me and making me very anxious. Despite an excellent record for attendance and punctuality at Ryde I have had to take a few days off at Artarmon due to the stress I am suffering as a result of the uncertainty at the Artarmon depot. This led me to offer my resignation, which I subsequently withdrew prior to it taking effect. I do not wish to leave WSN. I wish to remain as a permanent employee but I need certainty in my employment. On several occasions I have turned up for my shift and found that someone else has been rostered on in my place. I do not know whether I am paid for that time as my pay slips make no sense for the work that I am doing as they appear to relate to the hours and conditions at the Ryde depot. Perhaps it would be simplest for me to return to my position at Ryde where I had the certainty of my roster and of my pay scale. I understand that position has not been permanently filled. 16 Ms McKenzie referred to an incident with Mr Kelly in January 2009. As I do not consider it to be relevant to the outcome of these proceedings, I do not intend to refer to it. Ms McKenzie claimed she had notes of all of her conversations and could produce them if required.

17 In cross-examination, Ms McKenzie was asked about a conversation on 11 September 2009, with Mr Powers concerning the state of her uniforms. He had provided her with a new uniform request form. As she received the form in the week she was leaving, there was no need to fill it in. However, she said she had only ever spoken to Mr Kelly and others at Ryde about her uniforms; never to Mr Powers.

18 Ms McKenzie testified that she had been giving some thought to her resignation on the weekend before Monday, 14 September 2009, although she had not considered resigning at all until after having spoken with Mr Powers. She had told him that morning that her uniforms were disgraceful. She agreed that no one in Management had ever asked for her resignation. It was her intention to give two weeks notice and finish up on 24 September 2009. Ms McKenzie said that after she had told Mr Powers of her resignation on 14 September, she had told him her resignation letter would be under his door. Ms McKenzie said she had started to prepare her resignation letter towards the end of the conversation with Mr Powers. She denied preparing her letter prior to talking to Mr Powers on 14 September 2009. She denied Mr Powers' version of this conversation. 19 Ms McKenzie acknowledged she had an earlier discussion with Mr Kelly about resigning, but not with Mr Powers. It was at that time that Mr Kelly told her she could not go back to Ryde. She had asked where she was to go? Was she to resign? And he had said it was up to her. 20 Ms McKenzie said she could not remember saying to Mr Powers in a 90 minute conversation that "I can't take those people". She did not think the conversation had occurred. She believed Mr Powers confused her with someone else. 21 Ms McKenzie confirmed that incorrect calculations for her Sunday shifts had been fixed by the end of June. However, after that, she was not receiving her payslips. She was frustrated by this and by the fact that no arrangements had been made for her interview. 22 Ms McKenzie was questioned about a conversation with Mr Kelly on 20 June 2009, about her pay. She agreed she was frustrated and very upset. However, she denied swearing or telling Mr Kelly she was 'withdrawing my labour'. When she turned up for the very next shift, she found Mr Paul Holland performing her shift. She said she had never said she was not coming in. She denied telling Mr Kelly that she had withdrawn her labour and had then decided 'to rock up anyway'. 23 Ms McKenzie agreed that, prior to her resignation, no decision had been made as to who would be the successful candidate for the Artarmon position, and the process was continuing. She agreed she did not wait for the final decision before submitting her resignation. 24 Ms McKenzie said that Mr Powers had told her that Ms McAlary had not wanted the position; she had only wished to let the respondent know that she wanted permanent work. Ms Christina Kapagiannos had told her she had withdrawn her application because she had commenced working at Belrose. This had left her as the only candidate and yet they still could not give her an answer. Ms McKenzie denied that she was unaware of this at the time of her resignation. Ms McKenzie agreed that, as at 14 September 2009, her claim of tension with the other employees, could not have existed if they had not wanted the position.

25 Mr Thomas Jones Kelly has been employed by the respondent for five and a half years and has worked in the waste management industry for 12 years. He first met Ms McKenzie about four years ago. Mr Kelly recalled the conversation with Ms McKenzie in which she expressed interest in the afternoon or night shifts at Artarmon. After the position became available in April 2009, Mr Kelly contacted her and told her the position was becoming available. Mr Kelly said Ms McKenzie transferred from Ryde to Artarmon on a 'temporary basis' pending the outcome of an application process. (Ms McKenzie refutes being told the position was 'temporary'). That process required all vacant positions to be advertised internally, with an application and interview process to follow. He said that no one can be 'promised' a vacant position. 26 The position was advertised on 20 July 2009. Mr Kelly said that prior to him leaving the site, he passed on three resumes to the new manager, Mr Powers, and had a number of conversations with Ms McKenzie in which she asked if she had the job. He told her she was 'certainly the favoured candidate', but everyone had to be treated equally. Mr Kelly said he also told Mr Powers that she was the best person for the job as she had extensive night shift experience and he never had any issues with her. Mr Kelly believed the recruitment process was delayed because one of the applicants (Ms Kapagiannos) was working at Belrose. 27 Mr Kelly recalled that Ms McKenzie, on several occasions, had raised issues about her pay and payslips. However, her concerns had been addressed. Mr Kelly related the terms of a phone conversation he had with Ms McKenzie on 20 June 2009, in which she was very upset and angry: DM: Thomas, my fucking pay is wrong again. TK: Diana, Steve Serena from payroll is conducting a full pay reconciliation, and you will have the results of that on Tuesday with your next payslip. DM: I just want my fucking pay fixed, I'm withdrawing my labour until its done. TK: Does that mean you won't be coming back until Tuesday? DM: Yes. TK: Ok, well if it's official I'll notify payroll . 28 Mr Kelly said he then informed Mr Mathers and arranged for Mr Holland to cover her next shift. A contemporaneous note corroborates Mr Kelly's version of the conversations and his covering of her shift by Mr Holland (although he uses the expression 'withdrawing her services'). When Ms McKenzie turned up to find Mr Holland working her shift, she phoned him and said: DM: What is going on? Why is someone else doing my shift? TK: Diana, you withdrew your labour, you weren't coming in and now you've decided to rock up. 29 Mr Kelly deposed that he had never had any issues with Ms McKenzie prior to this incident and he thought her behaviour was 'out of character'. He did not take any disciplinary action against her for her inappropriate language because he believed she was experiencing problems and stresses in her personal life which could have explained her behaviour. 30 Mr Kelly denied telling Ms McKenzie she could not go back to Ryde; rather, he said he told her: TK: You do realise that we have moved people around to suit yourself. It's extremely difficult for us at the moment to reverse all the actions already put in place. DM: Ok, well it looks like I'm stuck here. TK: If you don't want the position, let me know. DM: Ok, well then I'll stick it out. 31 Mr Kelly said there would be significant operational difficulties with Ms McKenzie returning to her former position at Ryde, as other persons had been employed in her former role. Ms McKenzie said that she believed this person is a casual. 32 In cross-examination, Mr Kelly conceded he had not been specific about the terms of the conversation with Ms McKenzie when he told her she would be transferring to Artarmon on a temporary basis, pending the outcome of a recruitment process. However, he believed that this is what he would have told her, even though the recruitment process had not commenced. Mr Kelly denied telling Ms McKenzie she would receive a letter of offer soon after her arrival at Artarmon. However, he agreed that there was no document setting out Ms McKenzie's status at Artarmon. 33 Mr Kelly said Ms McKenzie's payslips were faxed to her on several occasions. Mr Kelly reaffirmed his evidence of what Ms McKenzie said on 20 June 2009. Mr Kelly agreed that it was 'bizarre' that Ms McKenzie would withdraw her labour then turn up for work and complain that someone else was doing her job. 34 Mr Kelly also described the incident in which Ms McKenzie and Mr Holland were double booked. He paid Ms McKenzie a minimum of four hours, even though she went home. He believed this was only fair, notwithstanding it was not an award entitlement. Mr Kelly said he also knew Ms McKenzie's uniform was 'thread bare' and ragged and she had been asking for a new one for some time. 35 Mr Gary Arthur Powers has been the Site Manager at Artarmon since July 2009. Mr Powers confirmed the respondent's policy on internal recruitment and said his role was to interview the three applicants for the Artarmon position. Mr Powers said that Ms Kapagiannos and Ms McAlary were both casuals and had said at their interviews that they did not want night work. Their applications were made simply because they wanted the Company to know they were interested in permanent work. 36 Mr Powers said he interviewed Ms McAlary on 20 August 2009, and over a two week period attempted to arrange an interview with Ms McKenzie. On one occasion she had left early and on another day she was sick. Both he and Mr Whybrew were happy with her for the position, but he still had to interview Ms Kapagiannos who was at Belrose. This took several weeks to arrange (10 September 2009). Mr Powers was aware Ms McKenzie was agitated by the delay. However, he had told her she was the favoured candidate and he still had to interview Ms Kapagiannos. Mr Powers said he was also aware of Ms McKenzie's complaints about her pay. 37 Mr Powers recalled two phone conversations in which Ms McKenzie had threatened to resign. He said he received a tearful call from her on 30 July 2009, in which she said: DM: I can't take it any more, I can't take those people, I've gotta go. GP: Where are you? DM: I'm in my car on the freeway home. 38 On 14 August 2009, he had a 90 minute conversation with her in which she had said: DM: I'm not getting anywhere with this company, the company doesn't care about me. Everyone is out to get me. I might as well resign. GP: What do you mean? Are there any particular incidents? As far as I'm aware everyone likes you. 39 Mr Powers said Ms McKenzie never provided him with any details of her complaints. Mr Powers said that in early September 2009, Ms McKenzie became increasingly 'emotionally unstable at work'. On 11 September 2009, Mr Powers received a uniform request order and she had been very upset and angry. Mr Powers said that on 14 September 2009, as he was driving to work, Ms McKenzie phoned him and said: DM: There's a letter of resignation on your desk. You're not going to talk me out of it this time. It's final. I've had enough of this company, I've got ongoing pay issues, and the final straw was your uniform order. GP: I can't talk you out of it? DM: My decision if final. GP: Okay, well if your decision is final I'm not going to talk you out of it. DM: I will work out the 2 weeks, and leave on the Friday.

The letter of resignation was on his computer keyboard when he arrived at work. Arrangements were then made to recruit a replacement operator. 40 Mr Powers said that on 19 September 2009, he received a text message from Ms McKenzie in which she said words to the following effect: Gary, what I would like to do after I leave is to be kept on the books as a casual . Mr Powers took this text to mean that she had resigned her permanent position, but would be willing to work casual shifts, as required. He had then unsuccessfully attempted to call her on four occasions. The day before her last rostered shift, Ms McKenzie phoned him and was very upset. She had agreed she would work that night, but had not turned up. 41 Mr Powers referred to Ms McKenzie's letter of 24 September 2009. He said that as far as he was concerned she had resigned 10 days earlier and it was too late to withdraw her resignation. He had conducted an exit interview with her by phone the next day. 42 In response to Ms McKenzie's evidence, Mr Powers said that he had told her she had not been transferred from Ryde, but was 'simply on loan' until the recruitment process was finalised. Mr Powers said that when Ms McKenzie kept raising the interview process, he had told her: GP: Diana, you are permanent. I cannot fire you except for cause. Either way, at Ryde or here, you have a job. 43 In reply, Ms McKenzie said that she was not a new appointment, but had been transferred. She was only told of the recruitment process after she had moved over to Artarmon. She said that Mr Powers did not proactively seek to interview her. She was forced to contact him on several occasions. Ms McKenzie denied speaking to Mr Powers for 90 minutes and denied saying "I can't take those people". 44 Ms McKenzie further denied any problems with co-workers. In fact, being on night shift, she did not really see anyone else. Her problems were with Management and administrative matters. She believed the respondent raised this issue of her personal problems as a means to deflect from their own responsibilities. 45 Ms McKenzie said that if Mr Powers had said she could have returned to Ryde if her application was unsuccessful, she would have been greatly comforted and would not have resigned. She had no reason to resign, other than the stress she was under and the uncertainty over her position. 46 In cross-examination, Mr Powers said he became involved in the recruitment process around 20 July 2009, when he received the three internal applications. He explained that it took four weeks to interview Ms McKenzie because of issues relevant to the site, including a plant shut down and his need to familiarise himself with the site. He agreed that from the respondent's records, there was no indication of Ms McKenzie leaving the site early and she had one day off sick from 11 July to 12 August 2009. 47 Mr Powers said that in her interview, Ms McKenzie had said she did not want to work Friday nights. He said he told her she was the favoured candidate during the interview. 48 Mr Powers claimed he explained to Ms McKenzie why the Sunday shift was actually on a Monday. However, he conceded she may not have always received her payslips, in a timely manner. Mr Powers said that at the time Ms McKenzie called him on 14 September 2009, her resignation letter was already on his desk. Mr Powers said that the site supervisor unlocks his office and her letter was on his computer keyboard when he arrived. 49 Mr Powers agreed that, by this time, he had interviewed all three applicants and had decided Ms McKenzie was the favoured candidate. However, he needed to talk further with Mr Whybrew. Mr Powers said that the whole basis of the conversations he had with Ms McKenzie were that she was adamant her decision was final and she told him he could not talk her out of it. Mr Powers said he took Ms McKenzie's later text message to mean that she was resigning from her permanent position, but would still be available for the odd casual shift. Mr Powers believed Ms McKenzie had been extremely anxious about a number of things and the uniforms issue 'tipped her over'. 50 Mr Powers said he had not reconsidered Ms McKenzie's resignation because he did not believe, given her behaviour, it was in the respondent's or her interests in keeping her in the role. Mr Powers agreed the position was not filled for two and a half months.

51 Ms Patricia Hancock has been the Human Resources Manager for the respondent since October 2007. Ms Hancock also described Ms McKenzie's move to Artarmon as being 'temporarily transferred… pending the formal recruitment process'. 52 Ms Hancock said she personally conducted a pay reconciliation of Ms McKenzie's records shortly after her resignation. The reconciliation covered the period from 11 May 2009 to 23 September 2009, and had discovered Ms McKenzie was actually overpaid $248.30. After further discussion with her, and further calculations having been made, it was shown Ms McKenzie was owed $1,237.53 gross. This amount was paid to her in November 2009. 53 It was Ms Hancock's view that Ms McKenzie's reinstatement would be impractical because: · her role at Artarmon was filled shortly after her resignation by one of two internal applicants; and · her former role at Ryde would disaffect two other employees, one a casual, the other a permanent. This could result in further grievances from other employees.

Ms Hancock added that there were no other vacant casual or permanent positions across the respondent's operations.

54 In cross-examination, Ms Hancock did not agree that there had been a mismanagement of Ms McKenzie's transfer to Artarmon - notwithstanding the problems with her pay and errors in the system. However, all the difficulties had been resolved. Ms Hancock said she hoped the respondent's recruitment process would not usually take eight weeks, but if certain events intervene, delays may occur. 55 In reply, Ms McKenzie said she would be very happy to work for the respondent again and would be prepared to travel to any site as required. She had got along well with customers and co-workers and had never had any personal issues with Management. SUBMISSIONS For the Union 56 Mr O Fagir submitted that the issue before the Commission was whether Ms McKenzie was dismissed by the respondent. If the answer is 'yes', then a finding of unfairness would quickly follow. 57 Mr Fagir said Ms McKenzie was a permanent employee who was transferred to Artarmon, her position was advertised and she was told she could not go back to Ryde. A termination of employment at the initiative of the employer occurred at that point. In the alternative, Mr Fagir put that nevertheless, there had been a constructive dismissal of Ms McKenzie: See Easling v Mahoney Insurance Brokers Pty Ltd (2001) 78 SASR 489; Thomson v Orica Australia Pty Ltd [2002] FCA 939; Ward v Mobile Innovations Limited [2002] NSWIRComm 287 and Allison v Bega Valley Council (1995) 63 IR 68. 58 Mr Fagir submitted that the conduct of the respondent when judged reasonably and as a whole, was more than Ms McKenzie was expected to put up with, thereby making the employer the real and effective initiator of the termination of employment. He said this conduct fell into four broad categories:

The prolonged uncertainty in relation to the status of Ms McKenzie's employment and the respondent's obfuscation when she queried her status.

The aggravation of Ms McKenzie's anxiety by the respondent failing to conduct the recruitment process in a prompt, timely or efficient manner.

The creation of a stressful and frustrating work environment, by its repeated administrative failures.

The respondent's refusal to acknowledge or admit that it had done anything wrong or that there were any problems of its making. 59 Mr Fagir referred to the evidence to support these propositions. It was Ms McKenzie's evidence that she first learned her position was to be advertised after she had assumed the role. The Commission would reject Mr Kelly's evidence that he had told her it was temporary and dependent on a recruitment process. This was not in Mr Kelly's statement and did not make logical sense anyway; that is, why someone would leave a permanent position to an uncertain, temporary one. Mr Kelly had told her she could not go back to Ryde. 60 Mr Fagir said it took four weeks to interview Ms McKenzie and another four weeks to interview the other two candidates. The position still had not been filled as at 26 November 2009. 61 Mr Fagir said that Ms Hancock's evidence demonstrated a whole series of errors in Ms McKenzie's pay, including seven shifts paid incorrectly, meal allowances not paid, annual leave and sick leave incorrectly processed. These were serious matters which added to Ms McKenzie's anxiety and frustration. Even Ms Hancock said it took her two weeks to find out what was going on. In addition, there were two occasions when Ms McKenzie arrived for work to find another person performing her job. Added to Ms McKenzie's anxiety was the abject failure of the respondent to admit any fault or wrongdoing. 62 As to unfairness, Mr Fagir observed that almost inevitably a constructive dismissal will be found to be unfair. Ms McKenzie was a good employee, she was denied procedural fairness and there was no valid reason for her dismissal. Mr Fagir added that Ms McKenzie withdrew her resignation five days after it was given in the text message to Mr Powers. 63 Finally, Mr Fagir said that Ms McKenzie seeks reinstatement and payment for lost remuneration as there is no reason why reinstatement would be impractical. For the respondent 64 Mr J Darams of Counsel helpfully set out a written outline of the respondent's case which I set out hereunder: It is trite law that the power of the Commission to grant any remedy under Part 6 of the Act is only enlivened in circumstances where an employer dismissed an employee from their employment. That is, where the employer terminates the employment contract ( Allison v Bega Valley Council (1995) 63 IR 68 at 72). The Respondent's primary submission is that it was the Applicant who terminated the employment contract between her and the Respondent. The Applicant gave 10 days notice in writing on 14 September 2009. The termination was effective upon the effluxion of the notice on 24 September 2009. Furthermore, the Respondent submits that there were no vitiating circumstances or matters at the time that the Applicant gave notice that affected the validity of the notice nor was the Applicant "constructively dismissed" from her employment. The giving of notice of termination of employment by either and (sic) employer or an employee is a unilateral act. Its exercise does not in any way depend upon the acceptance or rejection of the notice. The contract of employment is determined by the effluxion of the period of notice. Once given, the notice cannot be unilaterally withdrawn. It can only be withdrawn by agreement of the other party ( Birrell v Australian National Airlines Commission (1984) 9 IR 101 at 109-110; State of NSW v Paige (2002) 60 NSWLR 371 at 407-408 per Spigelman CJ; at 416 per Mason P and at 420 per Giles JA). The above is an important common law principle ( Paige at 409). It serves to enable the person receiving the notice to make other arrangements ( Birrell at 110). However, it has been recognised that notice given by an employee can be withdrawn if the notice itself was given "in the heat of the moment" and it is withdrawn quickly (see Birrell at 111 ; Achal v Electrolux (1993) 50 IR 236; Ngo v Link Printing (1999) 94 IR 375). In Paige (at 409 [286]), Spigelman CJ, after referring to the above decisions, held that: " By reason of the significant purposes served by the common law principle, the qualification should be restricted to circumstances in which the act of the resignation was not, in truth, a manifestation of the personal autonomy of the person ." It is submitted that Spigelman CJ's statement as to the restriction on the common law principle that the notice of termination of employment is a unilateral act and cannot be withdrawn unless it is not in truth a manifestation of personal autonomy, mirrors the concept of "constructive dismissal" recognised by industrial courts and tribunals. It has been said that the term "constructive dismissal" can deflect attention from the real inquiry. That is, did the employer behave in such a way so as to render its behaviour the real and effective initiator of the termination of the contract of employment ( Allison at 72; Ward v Mobile Innovations [2002] NSWIRComm 287 at [4]). Put another way, as per Spigelman CJ in Paige , can it be said that the act of termination was not a manifestation of the personal autonomy of the employee. In order for an employer's conduct to be regarded as such it " must be so onerous or unreasonable " prior to the termination ( Mobile Innovations at [6]); Jarvis v Costandi [2005] NSWIRComm 311 at [63]). Moreover, conduct alone cannot suffice. The employer's conduct or action must be that which is intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end ( O'Meara v Standley Works Pty Ltd , Full Bench, 11 August 2006 PR973462 at [23]). In summary, in order for the resignation from employment by an employee to be regarded as being at the initiative of the employer, it must be found, objectively viewed, that: (a) the employer's conduct was so onerous or unreasonable ; (b) it was, subsequently, the real and effective initiator of the decision by the employee; and (c) it was engaged in for the intention of bringing to an end or had the probably (sic) result of bringing to an end the employment relationship. Anything less and the resignation will simply be that. A termination of employment at the initiative of the employee. This is not a case where it can be said that the Applicant gave notice in the heat of the moment. Nor did the Applicant withdraw that notice immediately. The notice that was given was regular and valid. It was not open to the Applicant to withdraw the notice before it expired. The Respondent did not agree to the withdrawal of the notice. Nor is this a case in which it can be said that the Applicant was constructively dismissed. Whilst there were matters that existed during the Applicant's employment. It cannot be said that they were of such a character that the giving of notice by the Applicant was other than an exercise of the Applicant's personal autonomy. Even viewed in the extreme, the Respondent's actions were not intended or aimed at bringing the employment relationship to an end. The Respondent's conduct was not the real and effective initiator of the decision by the Applicant. In the circumstances, the Commission should find that the exercise of the right to give notice by the Applicant was one of her own free will and volition, free from any vitiating factors. That being the case, there was no dismissal by the Respondent and the application should be dismissed. 65 In oral submissions, Mr Darams outlined the respondent's view of the evidence. He said that Mr Powers had told Ms McKenzie that if she had been unsuccessful with her application for Artarmon, she would have to go back to Ryde, because she was a permanent. 66 As to Ms McKenzie's threat of 'withdrawing my labour', Mr Darams said the Commission would accept Mr Kelly's version of the conversation. He was a credible witness who gave concessions about his own conduct. As a good employer, the respondent had chosen to address Ms McKenzie's concerns, but she would not wait. It was reasonable for Mr Powers to consult further and make additional inquiries. The process of recruitment had not been completed when Ms McKenzie abruptly resigned on 14 September 2009. Mr Darams put that whether Ms McKenzie's frustration was warranted or not, there was no conduct by the employer which had intended the result of the termination of employment. In reply 67 Mr Fagir submitted that the conversation between Mr Kelly and Ms McKenzie about returning to Ryde was not clear. Ms McKenzie was entitled to feel very uncertain about her future. Mr Kelly had told her she could not go back to Ryde and this only increased her anxiety. 68 As to the 'withdrawal of labour' comment, Mr Fagir noted that as Ms McKenzie turned up for work the next day it could only mean two things; she had not used those words at all or she was planning an elaborate charade, pretending to be upset and surprised to find Mr Holland working her shift. Mr Fagir said that employers do not usually say "have a few days off and come back when you feel like it". 69 Mr Fagir commented on the principles discussed in Birrell v Australian National Airlines Commission (1984) 9 IR 101, where there is an exception to the general rule where an employee is in a highly emotional state and a resignation is withdrawn. Ms McKenzie's emotional state had been developing over a number of months. By using the word 'rethink' in her message she had intended to withdraw her resignation. CONSIDERATION 70 The Commission has had the benefit of detailed and thoughtful submissions of both parties as to the applicable law in respect to a constructive dismissal and what might constitute the resignation of an employee 'in the heat of the moment'" and the employee's subsequent withdrawal of that resignation. As to the latter point, Mr Darams submitted that a resignation given 'in the heat of the moment' must be withdrawn (very) swiftly for it not to constitute an act of the employee which terminates the contract of the employment: See Birrell v Australian National Airlines Commission. It followed that as Ms McKenzie's withdrawal of her resignation was, at best, five days after her resignation letter, such a delay could not possibly constitute an exception to the general rule; that a withdrawal of a notice of termination of a contract of employment can only be affected by the consent of both parties. I shall return to this fundamental proposition shortly, following discussion of the general principles of constructive dismissal. 71 The lead authority in this jurisdiction is that found in Allison v Bega Valley Council. At pages 72 to 73, the Full Bench said: 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.

72 In the Australian Industrial Relations Commission, a Full Bench in P O'Meara and Stanley Works Pty Ltd (U2006/2874), 11 August 2006, PR973462, after considering the decision of the Federal Court in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200, said this: In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether " the act of the employer [resulted] directly or consequentially in the termination of the employment ." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab . In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.

73 It seems to me that the words 'some action on the part of the employer which… has the probable result of bringing the employment relationship to an end', comprehend (as in this case) circumstances in which the employer may not have deliberately intended to bring about a termination of employment, but conducted itself in such a fashion that the termination was the probable result of such conduct. Further, in this regard, I refer to a Full Bench's decision in Ward v Mobile Innovations at par 6, in which it was said: "…It may be that the conduct of an employer is so onerous or unreasonable prior to a termination that a termination will be found to lay in the hands of an employer, even where the employer has not expressly required an employee to offer resignation or threatened dismissal in lieu of such an offer. However, this notion merely accords with that which has already been formulated in Allison ." 74 In a decision of the Supreme Court of Australia, the Full Bench in Easling v Mahoney Insurance Brokers, Olsson J, with whom Doyle CJ and Bleby J did not disagree, said: "Suffice to reiterate that the notion of constructive dismissal implies the existence of conduct on the part of an employer which is plainly inimical to a continuance of a contract of employment according to its express or implied terms. The authorities establish the concept that there is implied in a contract of employment a term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. An intention to repudiate need not be proved. Rather, it is a matter of objectively looking at the employer's conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it." 75 I shall return later to the specific facts and circumstances of this case to demonstrate this point.

76 Returning then to the authority referred to me by Mr Darams in Birrell v Australian National Airlines Commission, it is necessary to quote the relevant paragraphs at page 110 and 111, in full: These authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible. In principle, this conclusion must be correct. The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties. This conclusion is consistent with authority to the effect that unilateral withdrawal by a landlord of notice to quit is not possible: see Tayleur v. Wildin (1868) L.R. 3 Exch. 303. Dr Jessup relied on Martin v. Yeoman Aggregates Ltd (1983) I.C.R. 314, a decision of the Employment Appeal Tribunal, as establishing an exception to the general rule as to withdrawal of notice of termination, where the notice was given by a person in a highly emotional state, and retracted upon recovery from that state. In that case, a director of an employer company had engaged in an argument with an employee, which resulted in the director telling the employee he was dismissed. Within five minutes, the director cooled down and retracted the dismissal. The employee insisted that he was dismissed, and sought to pursue his statutory remedies for unfair dismissal. The Employment Appeal Tribunal held that it was possible to have second thoughts, and that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat died down. In the present case, I have no hesitation in accepting that the applicant was in a state of emotional turmoil; over the weekend of 7 and 8 May 1983, he was involved in making a choice between accepting termination or resigning, a choice which might have profound effects on his livelihood, his family and his future standing as a pilot. All this having been said, I regard the decision in Martin v. Yeoman Aggregates Ltd as confined to its facts, and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly. A principle such as that does not at all fit the present case. The applicant did not speak in the heat of the moment, but rather took the considered and deliberate step of giving notice to terminate his contract of employment. At the time when he handed over the letter, he did intend to resign. His subsequent reconsideration of this step, in the light of what he took to be the reaction of TAA to it, does not approximate to the action of a person who, realizing that he has said something in anger which he did not intend, immediately makes amends. 77 The first observation I would make, is that there is no definition as to what constitutes retracting the resignation 'swiftly'. The case referred to by his Honour involved a retraction made within five minutes. Presumably, what his Honour meant by the word 'swiftly' is that it must be within minutes, maybe hours, but probably not days. Even so, it seems to me that the decision in Birrell v Australian National Airlines Commission can be distinguished in much the same way as was done by Hall CIC in Achal v Electrolux Pty Ltd (1993) 50 IR 236. There it was said at pages 238 to 239: Further if I be wrong in the view that the Applicant did not resign and was dismissed, it seems to me that by her facsimile to the company secretary dated 8 February 1993 the Applicant made it perfectly plain that she was setting aside the transaction of 3 February so far as it lay in her power to do so, and perfectly plain that (health permitting) she intended to resume work on 10 February. There is now a respectable line of English authority for the proposition that a resignation given in heat or in a state of emotional stress or as a result of being jostled into a decision by the employer, may be withdrawn, see Sothern v Franks Charlesly and Co [1981] IRLR 278 at 280 per Fox LJ, and Barclay v City of Glasgow DC [1983] IRLR 313, at 315. The latter case was not cited to Gray J in Birrell v Australian National Airlines Commission (1984) 9 IR 101 when his Honour held (at 110 to 111): "All this having been said, I regard the decision in Martin v Yeoman Aggregates Ltd [1983] ICR 314, as confined to its facts, and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly. A principle such as that does not at all fit the present case. The Applicant did not speak in the heat of the moment, but rather took the considered and deliberate step of giving notice to terminate his contract of employment. At the time when he handed over the letter, he did intend to resign. His subsequent reconsideration of this step, in the light of what he took to be the reaction of TAA to it, does not approximate to the action of a person who, realizing that he has said something in anger which he did not intend, immediately makes amends." Birrell's case (ibid) was not a case of resignation in a distressed rather than an angry state. It was not necessary for his Honour to decide, and I do not understand his Honour to have decided, that an employee whose distress is real and obvious and whose employer jostles her into resigning whilst in that state may not withdraw the resignation unilaterally on recovering her composure where the employer will not be prejudiced thereby, save to the extent that the advantage flowing from the resignation evaporates. That in my opinion was the situation here. The Applicant's duties were being performed by others, as doubtless were the duties of any other employee who was absent, but the position had not been filled. There is medical evidence that it would take the Applicant until 10 February to pull herself together. The likelihood is that the Applicant was traumatised by the events of the early part of the first week of February. By each of them taking employment, the Applicant and her husband were able to meet mortgage payments on their matrimonial home, and to give their daughters what they presumably considered to be the advantage of a private school education. The removal of the privilege of bringing the children into the workplace after school removed an essential brick in the structure of their family life. I propose to follow the English authorities. It follows that in refusing to permit the Applicant to resume her employment, as by its solicitors letter of 8 February 1993 the Respondent plainly did, the Respondent repudiated the contract of employment and "dismissed" the Applicant within the meaning of s 11.37(1) of the Industrial Relations Act 1990.

Like here, I note in the decision above, that the time gap between the giving of the resignation to its withdrawal was five days. 78 I can envisage a number of situations in which a retraction of a resignation, not given 'swiftly', might still amount to a constructive dismissal. For example, an employee may be so traumatised by the experience that they may be hospitalised or medicated for some days and unable to make rational decisions or they may not be able to swiftly contact the appropriate person in authority to accept the retraction. Plainly, each case must be decided on its own facts and circumstances. Attempting to prescribe short time periods in the circumstances described above (and in others) may not ensure that the interests of justice are served, when all of the relevant circumstances are taken into account. 79 There was some debate as to whether Ms McKenzie actually withdrew her resignation in the message left on 19 September 2009, or in the letter of 24 September 2009. In my view, there can be no doubt Ms McKenzie had changed her mind in respect to resigning by the use of the words in the text message: "after considering my position due to high emotional stress, I wish to rethink my resignation, if possible". This was more than a simple withdrawal - it was a respectful plea to Mr Powers for her job back.

Was there a constructive dismissal? 80 At the outset, I would wish to emphatically state that I consider Ms McKenzie was treated appallingly by the Management of the respondent. I would adopt the words of Olsson J in Easling v Mahoney Insurance Brokers that "it is a matter of objectively looking at the employer's conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it". 81 I do not accept the evidence brought by the respondent, through Mr Kelly, that he had told Ms McKenzie, when offering her the transfer to Artarmon, that she would have to undergo a recruitment process. On his own evidence, he described it as a 'temporary measure' pending the outcome of the application process. If this was so, it would have obviously held out the prospect that if she had been unsuccessful, she would have simply been returned to Ryde. I find it curious that Mr Kelly could not identify a date on which he told her of this and, unlike his other evidence, which is in conversation form, he did not use this form in his written statement about this crucial conversation. Moreover, no recruitment process had been put in place at that time and was not to start for a number of weeks. 82 I also do not accept that Mr Powers had told Ms McKenzie, prior to her resignation, that as she was a permanent she would therefore be returned to Ryde if she was unsuccessful with her application. If this was so, I have no doubt that Ms McKenzie would have been completely contented with this assurance and would have had no other basis for submitting her resignation. However, I am well satisfied, notwithstanding her position as a permanent employee, that Ms McKenzie was left with the hopelessly untenable position that if she was unsuccessful with her application, she had no job to go back to at Ryde. It follows that I accept her evidence that Mr Kelly had told her that there was no job for her to go back to. Even his own version of this conversation (see par 30) was hardly a ringing endorsement that her job was safe. She was given no documentation or a letter about the transfer which might have thrown some light on any guarantee that she would return to Ryde, if she was unsuccessful with her application. In my opinion, she had nothing to give her any comfort as to her future. Even if I be wrong about Ms McKenzie's constructive dismissal, I would conclude on the evidence, that Ms McKenzie had been effectively dismissed when Mr Kelly told her in late June 2009 there was no job for her to go back to. 83 During the course of argument, I raised with the respondent my serious reservations with what the Commission was being asked to accept based on the respondent's case. That is, it makes absolutely no sense at all to me, why someone would move from a safe, permanent position to a temporary one, in circumstances where: · two other persons had applied for that permanent position; · applications and interviews were to be conducted; and · there was no guarantee of a return to the former position, if she was unsuccessful. 84 Is it any wonder that Ms McKenzie was anxious, worried and upset about her future? In my view, it is unsurprising that she offered her resignation and was in a highly emotional state when she did so. But there was, of course, other issues which contributed, rightly or wrongly, to her anxiety. Given the circumstances, it was somewhat disingenuous for the respondent to suggest that all Ms McKenzie needed to do was wait for the recruitment process to be completed. I do not accept the respondent's submission that had she waited, she would have either obtained the position or have been sent back to Ryde. As I said earlier, that was plainly not what she was told - in fact, quite the contrary. 85 It seems to me that Ms McKenzie's transfer to Artarmon was more akin to a 'wink and a nod' that she would get the position; despite the internal process. Mr Powers even acknowledged that he had told her she was the preferred candidate. The respondent needed to follow its own internal policy process and when this process was delayed (unacceptably, as I will explain later), Ms McKenzie became worried and concerned about her future. The other issues exacerbated her anxiety. It was acknowledged that her pays were wrong, her payslips were not sent and she complained, to no avail, about the sorry state of her uniforms. I consider it to be entirely understandable that Ms McKenzie would have felt very uneasy, agitated, confused and worried by her situation. She described her own condition as being highly emotional. Moreover, she told Mr Powers that she was in a state of high emotional stress in her text message of 19 September. That the respondent was aware of her emotional state at the time is further amply demonstrated by the other evidence of Mr Powers and Mr Kelly. Mr Powers' evidence was that he believed Ms McKenzie was 'emotionally unstable' and behaving strangely at the time (the early part of September 2009). Mr Kelly described her behaviour as 'out of character' as he had never had any issues with her before. In my view, Ms McKenzie's acknowledged emotional state may go a long way to explain some of the more bizarre incidents referred to in the evidence. 86 One of these incidents was the threat to Mr Kelly on 20 June 2009, that she was 'withdrawing my labour' and then she turned up to the next shift and found someone else in her position. I have some doubts that Ms McKenzie used the term 'withdrawing my labour', as even Mr Kelly's contemporaneous note referred to her withdrawing her 'services'. Moreover, it seems a highly improbable expression for an employee to use and, even more improbable, that an employer would simply acquiesce to such a threat. I find myself in agreement with Mr Fagir's explanation that it makes no sense why she would withdraw her labour and then be completely astonished and upset when she turned up to work for her next shift to find someone else in her position. Even if this threat was made, it would only demonstrate, to my mind, that Ms McKenzie was in a highly emotional state brought about by the uncertainty of her future, a fortori, when she found someone in her position. 87 Secondly, Ms McKenzie denied telling Mr Powers in two phone conversations on 30 July and 17 August 2009, that 'I can't take it anymore', 'I can't take those people', 'I've gotta go', 'everyone is out to get me, I might as well resign'". Even if she did, the respondent would have known that these concerns were more a vent to her anxieties and frustrations, than real workplace grievances. Indeed, Mr Powers describes her state in both conversations as being "very upset and she had been in tears". In my view, there must be real doubts as to whether Ms McKenzie uttered these expressions. I arrive at this conclusion for the following reasons: · I find it difficult to believe that the second conversation could have lasted 90 minutes as contended for by Mr Powers. There were no phone records put in evidence to corroborate this claim; · as Ms McKenzie worked the night shift, it was unlikely she would be in contact with other employees; and · there was no evidence of any incident or incidents with other co-workers (except for her own grievances with Management). There was no evidence that the respondent sought to investigate these claims of victimisation. 88 Thirdly, I do not consider that Ms McKenzie's credit was impugned by differing with Mr Power's evidence as to where he had found her resignation letter. His evidence was that his office would have been unlocked and the letter was on his keyboard. Of course, it is reasonable to assume that anyone walking by or entering his office seeing the letter on the floor, might pick it up and put it on his computer keyboard. The Recruitment Process 89 As I said earlier, I consider that Ms McKenzie was treated appallingly by the respondent. This conclusion was no better demonstrated than by her treatment during the recruitment process. Even Ms Hancock, the respondent's Human Resources Manager, conceded that she hoped it was not common for the Company to take eight weeks to interview three candidates. In my opinion, the extraordinary delay in the recruitment process was completely inexplicable and mismanaged. It did nothing to ease Ms McKenzie's anxiety. The delay is inexplicable in circumstances where: · the respondent acknowledged Ms McKenzie was the favoured candidate for the Artarmon position; · Mr Powers was aware that two of the three candidates were not even interested in the night shift position; they had only wished to make the respondent aware that they were interested in permanent positions; · two of the candidates worked at Artarmon and the other was at Belrose, yet it took eight weeks to complete the interview process; and · the night shift position was only filled two weeks before the arbitration of this matter, having been vacant since Ms McKenzie's departure. 90 With these considerations in mind, and appreciating Ms McKenzie's state of anxiety at the time, I find it difficult to understand why Mr Powers refused to accept the withdrawal of her resignation. In some respects, it was quite extraordinary that he did not jump at the chance to take her back. 91 From the foregoing consideration, I am able to comfortably conclude that Ms McKenzie's termination of employment was brought about at the initiative of the employer. The employer had created an environment in which the probable and actual result, was the termination of Ms McKenzie's employment. For the reasons I have already given, I consider that the withdrawal of her resignation, five days later, constituted an exception to the general rule that a notice of termination of a contract of employment can only be effected by consent of both parties. It follows that I accept that the text message (see par 14) amounted to the withdrawal of her earlier resignation of 14 September 2009. 92 Having established the jurisdiction of the Commission to determine this matter, I now proceed to consider whether Ms McKenzie's constructive dismissal was 'harsh, unreasonable or unjust' within the meaning of Pt 6 Ch 2 of the Act. In this regard, I respectfully adopt the comments of Connor C in Peters v Jenolan Caves Reserve Trust (1998) 86 IR 162 at 171 to 172: I note in that respect the decision of the Full Bench of the State Industrial Relations Commission (Cahill J - Vice President, Hill J and Connor CC) in its unreported decision of Wednesday, 3 July 1996 in McCabe v New South Wales Police Service (unreported, NSW Industrial Relations Commission, Matter No 3112 of 1994, 3 July 1996) and, in particular, the comments of the Full Bench (at p 19), viz: "… We deal with the question of procedural fairness… Mr McCabe would … have been entitled to some form of hearing or inquiry to determine whether he should or should not be dismissed if (the matter) had run its normal course. Presumably, he would have been entitled in any such hearing to produce oral or written testimony on his own behalf; importantly he would have been given notice about the inquiry and particulars of the alleged grounds, reasons or matters relied upon and in respect of which he was to 'show cause'. The constructive dismissal, conveniently for the respondent, short circuited that process and denied him his entitlements to natural justice. Such entitlements as were extended to him… in respect to recommendation for dismissal certainly did not meet the requirements of a proper opportunity to 'show cause' and consequently those of procedural fairness…" Those comments, which are I consider equally relevant for Ms Peters, highlight the position which so often pertains once it is established that a resignation constitutes a constructive dismissal: by its very nature, a finding that a resignation is a constructive dismissal leads almost inevitably to the conclusion that the constructive dismissal is unfair. That is especially the case with employees in the public sector whose dismissal would properly follow established procedural steps before it may be effective. 93 As to the meaning of the expression 'harsh, unreasonable and unjust' within the meaning of Pt 6 Ch 2 of the Act, I rely on the following extract from Byrne & Frew v Australia Airlines Ltd (1995) 185 CLR 410, where the expression 'harsh, unjust and unreasonable' was considered by the High Court, albeit in an award context: "--- It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." The expression was further discussed in Outboard World Pty Limited t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 182, where a Full Bench said:

"--- First we deal with argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: "unfair" rather than "harsh, unreasonable or unjust" dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term "unfair") to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s 246 rather than the catch-all hearing, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase "harsh, unreasonable or unjust", we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s 275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, the appearing in s 88F of the 1940 Act, the Commission in Court Session (Perrignon, Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (new) 399 AT 418 (Cahill J delivering a separate judgment) said: "The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davies v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power." In much the same way, we consider that, while strict definitions of "harsh", "unreasonable" and "unjust" may produce a degree of circularity of meaning, turning on the notion of "fairness", it may be a given case that a dismissal may be viewed as coming within the ambit of one of the three objectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made." See more recently Sydney Ferries Corporation v Seamen's Union of Australia, NSW Branch on behalf of Levy (2009) 186 IR 99. 94 As identified in Peters v Jenolan Caves, a constructive dismissal will invariably fall foul of the provisions of s 88 of the Act, which deal particularly with procedural fairness. It could not be disputed that the applicant was given: · no reason for her constructive dismissal; · no opportunity to defend her position; and · no warnings of unsatisfactory performance. 95 Further, I note that by withdrawing her resignation she was effectively seeking reinstatement or re-employment (s 88(e) of the Act). For reasons, which I do not comprehend, the respondent rejected this request. 96 Accordingly, I find that the constructive dismissal of Ms McKenzie was 'harsh, unreasonable and unjust' both substantively and procedurally. Remedy 97 It is trite law that reinstatement is the primary remedy available under the Act, when an employee successfully establishes that he/she was unfairly dismissed. In this respect, I refer to the following passage from New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89, where the Full Bench said at par [67]: 67 Having found that the Commissioner erred in determining the dismissal of Ms Rudder was not harsh, unreasonable or unjust, there is no doubt that reinstatement of the appellant should be considered as the appropriate remedy. We refer to what was said in Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at paras [105] to [110]: 105 It is trite law that reinstatement is the primary remedy. It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: see Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94]. 106 In Plummer v Stannard Bros Launch Service (2005) 145 IR 111 the Full Bench stated the position as (at 115): Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at [125] . Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453. 107 The Full Bench in Little (No 2) considered the test to be applied as to the practicability of reinstatement of re-employment. At paragraph [91] the Full Bench stated: 91 It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342). 108 The focus in Perkins was on the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable and it is worth repeating what the Full Bench of the Federal Court had to say: Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited (Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act.

If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. 109 This approach was also accepted in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282. 110 As to the approach to be taken in assessing the practicability of reinstatement, the comments of Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50 are relevant: In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this: "This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody." 98 It was the evidence of Mr Kelly and Ms Hancock that the reinstatement of Ms McKenzie would cause operational difficulties at both Artarmon and Ryde, as other employees had already been internally appointed to those positions. Presumably, this amounted to a defence of the impracticality of reinstatement. In my judgement, this evidence must be rejected. If an employer could successfully argue the impracticality of a dismissed employee's reinstatement, based on the fact that the former position had been filled, then it would be rare indeed for any unfairly dismissed employee to be reinstated. This could not possibly have been the intention of the legislature or the policy imperative under the Act, to provide for reinstatement as a primary remedy, pursuant to s 89. In addition, there was no evidence that Ms McKenzie's performance was unsatisfactory or that she had been involved in any disciplinary issues during her three and a half years of employment with the respondent. Given these conclusions, I have no hesitation in ordering Ms McKenzie's reinstatement or re-employment. I also consider this to be a case which warrants orders for the payment of lost remuneration and for the continuity of her employment. ORDERS 99 Accordingly, pursuant to s 89 of the Industrial Relations Act 1996, the Commission orders that:

The respondent, WSN Environmental Solutions Pty Ltd, shall reinstate or re-employ Ms Diane McKenzie to her former position at Ryde, or such other position, at another location as may be mutually agreed by the parties.

Ms McKenzie's employment is not to be taken as broken by her constructive dismissal on 14 September 2009.

The respondent, WSN Environmental Solutions Pty Ltd, is to pay to Ms McKenzie an amount equivalent to her lost remuneration from 14 September 2009 to 5 March 2010, less any remuneration she received during this period.

The above orders shall take effect within 14 days of today.

Any dispute as to the terms of these orders shall be referred to the Commission for determination.

Proceedings in dispute notification IRC 1577 of 2009 and matter number IRC 1578 of 2009 are concluded, subject to the preceding order.

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.

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