Geoffrey Robbins v Central Highlands Water

[1995] IRCA 108

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 888 of 1994

BETWEEN:

GEOFFREY ROBBINS
Applicant

AND

CENTRAL HIGHLANDS WATER
Respondent

REASONS FOR JUDGMENT

16 March 1995  Judicial Registrar Staindl

Geoffrey Robbins (“the applicant”) commenced employment with the Ballarat Water Board in 1989.  He was employed as a public relations officer and remained there until 20 June 1994.  During this time the Ballarat Water Board had become the Central Highlands Regional Water Authority, also known as Central Highlands Water (“the respondent”).

The respondent argued that it had not dismissed the applicant but that he had resigned and accordingly the Court has no jurisdiction to determine this matter.  Given this submission it is necessary to review carefully the circumstances leading up to and including 20 June 1994.

Resignation Or Termination At the Initiative Of The Employer

On 10 May 1994 the applicant saw his treating doctor, Dr Peter Faull.  Dr Faull arranged for some blood tests to be conducted, but when these were conducted they showed no abnormality.  Dr Faull wrote a medical certificate dated 11 May 1994 stating that the applicant was unfit for work from 12 May 1994.  As provided to the respondent, the medical certificate stated that the applicant was suffering from “a medical illness including mild case of glandular fever, staph infection”.  This description is significant and will be referred to later.  The medical certificate purported to be for a period of one month.  The applicant submitted an application for leave, such leave to commence on 12 May 1994.

The applicant in fact remained on leave until 20 June 1994.  Although I was not impressed with the applicant’s explanation for him extending his period of leave I do not take this into account in reaching my decision.  Prior to 20 June 1995 the applicant had been told to report to the office of Mr Damian O’Doherty, the secretary of the respondent.  Present at this meeting were Mr O’Doherty, the applicant and Mr Robert Ford.  Mr Ford is the respondent’s engineer‑in‑chief and attended the meeting at the request of Mr O’Doherty.  He took brief notes of the conversation which occurred.  There is considerable agreement as to what was said at the meeting, and I now detail my findings as to the conversation.

Mr O’Doherty commenced the meeting by asking the applicant whether there was any reason why he shouldn’t be dismissed for fraud against the Authority.  The applicant asked for details and was told that Mr O’Doherty had two invoices from Campbell Media which had been inflated by $5,000.00 and that the amount of $5,000.00 had been paid back to the respondent.  The applicant said that he had not done anything wrong but asked for some time to get advice and prepare a defence to the allegations.

The applicant said this was a personal matter between himself and Mrs Campbell and had nothing to do with the Authority.  Mr O’Doherty said he had an affidavit and placed two invoices on the table which he said had been inflated by the total amount of $5,000.00.  The applicant replied that he could give Mr O’Doherty an affidavit as well and that he had handled many invoices for large amounts for the Authority and he had acted properly in those matters.  Mr O’Doherty then said that he would give the applicant an opportunity to resign or else he would put the matter in the hands of the police.  The applicant replied that he had been grossly hurt but if he (Mr O’Doherty) believed he had sufficient evidence then there was no choice but for him (the applicant) to resign.  Mr O’Doherty handed the applicant a letter of resignation which had already been prepared.  The letter is dated 20 June 1994 and reads (in so far as is relevant):

“I wish to tender my resignation effective Tuesday the 14th of June 1994, and ask that you waive the usual conditions of notice under the circumstances.”

The applicant signed this and returned it to Mr O’Doherty.  The applicant returned his keys and there was some discussion about pay owing to him.  At one stage the applicant gave evidence that during this meeting he felt that signing a resignation was “far better than being sacked from the place”.  I am prepared to accept that the applicant felt that his employment was in jeopardy:  it would be surprising if it were otherwise given Mr O’Doherty’s opening question about why the applicant shouldn’t be dismissed for fraud.  However I do not accept that resignation or dismissal were the only options.  It was never put on this basis and further Mr O’Doherty was asked by me if he could have foreseen that the applicant was not guilty of fraud.  He replied:

“Yes there was.  He could’ve said to me, and I was actually anticipating that he would say to me, ‘Put the matter in the hands of the police’, and he could’ve done that and then I had in the back of my mind that I would then suspend him until such time as the matter had been cleared.”  (p. 206 of Transcript).

Mr O’Doherty gave evidence which was measured and careful and I accept what he says.  Given the above factual background I now consider whether the termination of employment was a termination at the initiative of the employer.

Individual circumstances in particular cases may determine whether or not a termination of employment amounts to a termination by the employer.  Slight differences in the facts may result in different outcomes.  However in general terms there will be a termination by the employer where an employee resigns following an ultimatum of “resign or be dismissed”.  It is conduct by the employer which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, in the words of Lord Denning MR (see Western Excavating Ltd -v- Sharp [1978] ICR 221 at 226).

In Australia, industrial tribunals have held that a resignation in the face of a threat of dismissal is a dismissal.  See, for eg, W. Silverschneider -v- MRSA Earthmoving Pty Ltd [1988] AILR 65 (Full Bench of W.A. Industrial Relations Commission), Roberts -v- Prince Alfred College [1979] AILR 320 (S.A. Industrial Court), Weller -v- Transport Superannuation Board (Industrial Relations Commission of Victoria, unreported, 2 August 1991, Decision No. D90/2217), David Jones Ltd -v- AWU [1978] AILR 309(3) (NSW Industrial Commission), and Ampol Ltd -v- TWU (1993) 54 IR 134 (Full Bench of the Australian Industrial Relations Commission).

These tribunals have described such a termination of employment as a “constructive dismissal”. Division 3 of Part VIA of the Industrial Relations Act 1988 deals with a termination of employment at the initiative of the employer. (See Article 3 of the Termination of Employment Convention). It may be that the concept of a termination of employment at the initiative of the employer is somewhat broader than the concept of a constructive dismissal, although I do not attempt a detailed analysis of the two concepts.

In the present case I am of the view that there has not been a termination at the initiative of the employer.  Mr O’Doherty has not said to the applicant “resign or be dismissed”, but rather “resign or I’ll put the matter in the hands of the police”.  According to Mr O’Doherty he would then have suspended the applicant’s employment if the applicant had not resigned.  However, the respondent was clearly entitled to refer the matter to the police:  there was nothing inconsistent with this action with the continuation of the contract of employment.  Dismissal was an option which was open as a possibility for Mr O’Doherty depending on what occurred during the meeting but it was only one possibility.  If the applicant truly believed in his innocence of any wrong doing then he could have had the matter investigated by the police.  He chose not to do this but to resign.  In my view the present case is not one of termination at the initiative of the employer and accordingly this Court does not have jurisdiction in this matter.

Valid Reason For Termination

In case I am wrong about the above finding I briefly record my view as to the merits of the applicant’s case.  The applicant was accused of serious misconduct in that he had inflated invoices for personal benefit.

In late 1991 or early 1992 the applicant had awarded a significant project to Irwin Campbell Design Associates Pty Ltd (later Campbell Media).  Irwin Campbell and Dianne Campbell were the directors of this company.  The project was known as the “education project” and related to the research, design, writing and production of education kits concerning the role of Central Highlands Water.  This project was to run over a two or three year period and there would be a budget allocation during this time.  Accounts were to be submitted throughout the course of the project.

In April 1994 Irwin Campbell lent the applicant $25,000.00 to assist him with his personal finances.  It was the respondent’s case that the applicant intended to reduce his indebtedness by inflating the invoices tendered by Campbell Media to the respondent.  Mr Campbell gave evidence that two invoices were inflated by a total amount of $5,000.00.  Mrs Campbell gave evidence about retyping the invoices for higher amounts, although she did not appreciate the significance of this task at the time.  However, her evidence supports that of her husband in respect to the invoices being altered at the instigation of the applicant.

The respondent produced a document which it alleged added support to its version of events.  This was a handwritten document with the letter “CHW” and then various figures on it including the following:

“5,000 - 6,000
10,000
10,000
25,000”

Mr Campbell gave evidence that the applicant was the author of this document and that it represented his calculations of how the sum of $25,000.00 was to be repaid by way of overpayments to Campbell Media.  “CHW” referred to Central Highlands Water.  Mr Campbell said that the applicant wrote this out whilst present at the office of Campbell Media.  In this regard it is noteworthy that it is on the back of a photocopy of a pamphlet for John Valves.  Mr Campbell said this was a photocopy of a pamphlet that he had produced for John Valves and was left in the office of Campbell Media.

The authorship of this handwritten document became a significant issue.  On two occasions - in examination in chief and in cross examination - the applicant categorically denied that he was the author.  The respondent called a very experience and well qualified hand writing expert, Mr Neil Holland.  He gave evidence that the applicant was the author of this document, and that he had no doubts about it.  In his subsequent questions and submissions the applicant at least conceded the possibility that he was the author.

I accept that the applicant was the author of this document.  Mr Holland was an impressive witness who was unshaken in his opinion:  in addition to that is the evidence of Mr Campbell and the implicit concession of the applicant himself.  It does provide some support to the respondent’s case, and it has adverse implications for the applicant’s credit.  In this regard, I note that what I have called the applicant’s implicit concession was only made after the evidence of Mr Holland.

There is one further issue which significantly affects the applicant’s credibility.  As noted earlier the applicant produced a medical certificate from Dr Faull dated 11 May 1994 to the respondent.  It stated that the applicant was suffering from a “medical illness”.  It also purported to be for a period of one month.  The applicant gave evidence that he had not tampered with the medical certificate in any way.  Dr Faull was called to give evidence by the respondent.  He gave unchallenged evidence that the words “including mild case of glandular fever, staph infection” and the words “one month” were not written by him.  In his final submission the applicant stated:

“I have no explanation for the certificate except to say that on obtaining the certificate it was added to by me which obviously misrepresented my illness to my employer.  I was not aware because of the very few occasions on which I have had to obtain a medical certificate that medical practitioners do not often provide detail about illness unless specifically requested to do so as it is a matter between Dr and patient,”

The applicant’s evidence was frequently inconsistent with the evidence of other witnesses and at times was inherently improbable.  I reject his evidence whenever it conflicts with other evidence.  In my view the respondent had a valid reason for terminating the applicant’s employment, being his serious misconduct relating to the inflation of invoices.

In making my findings about whether or not the respondent had a valid reason for terminating the applicant’s employment I have approached the matter on the basis that the respondent bears the onus of proof on the balance of probabilities, although I bear in mind what was said by Mr Justice Dixon in Briginshaw -v- Briginshaw (1938) 60 CLR 336 at 362:

“... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.  But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequence flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”

Thus, in view of my findings the only order of the Court that is necessary is that the application be dismissed.

The Court Orders That:

1. The application be dismissed.

I certify that this and the preceding nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl.

Associate:

Dated:               

Solicitors for the Applicant: Counsel for the Applicant:	Kenna Croxford & Co. Mrs A. Nordlinger for 9 & 10 November 1994.  Thereafter the Applicant appeared in person.
Solicitor for the Respondent: Counsel for the Respondent:	Phillips Fox Mr B. Lacy
Dates of hearing:	9, 10, 24 & 25 November 1994
Date of Judgment:	16 March 1995

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - resignation or termination at the initiative of the employer - dishonesty of applicant - valid reason for termination.

Industrial Relations Act 1988, Schedule 10, Article 3.

Western Excavating Ltd -v- Sharp [1978] ICR 221

W. Silverschneider -v- MRSA Earthmoving Pty Ltd [1988] AILR 65

Roberts -v- Prince Alfred College [1979] AILR 320

Weller -v- Transport Superannuation Board (Industrial Relations Commission of Victoria, unreported, 2 August 1991, Decision No. D90/2217)

David Jones Ltd -v- AWU [1978] AILR 309(3)

Ampol Ltd -v- TWU (1993) 54 IR

Briginshaw -v- Briginshaw (1938) 60 CLR 336

GEOFFREY ROBBINS -v- CENTRAL HIGHLANDS WATER

NO. VI 888 of 1994

Before:  STAINDL JR

Place:    MELBOURNE

Date:     16 MARCH 1995