John Eric Hudson and Rice Growers Co-Operative

[1995] IRCA 152

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 2101 of 1994
VICTORIA DISTRICT REGISTRY

B E T W E E N

JOHN ERIC HUDSON
Applicant

A N D

RICE GROWERS CO-OPERATIVE
Respondent

Reasons for Judgment
(Delivered ex tempore - revised from the transcript)

17 March 1995  PARKINSON JR

I now turn to deal with the matter upon which I reserved my decision at the conclusion of yesterday's proceeding, that is, an application which whilst foreshadowed as an application for a no-case dismissal of the proceedings was, in reality, an application directed towards the jurisdiction of this court to hear and determine any matter arising out of the termination of the applicant's employment. 

The matter arises as follows. The applicant was employed by the respondent in June 1994.  He was employed after an initial interview with a person who was to become his immediate supervisor, and a further subsequent interview interstate with senior managers of the respondent, whereupon his employment was entered into and a letter of confirmation of that fact was provided to him. 

The applicant's evidence is that until 28 October 1994 no matters of concern in relation to his work performance had been raised with him, although there had been an incident relating to the responsibilities of another employee which had raised some difficulties in the employment. 

The applicant's evidence is that on 28 October 1994 he was called in by his supervisor who informed him that he was not satisfied with his work performance or his speed in picking up aspects of the job.  The applicant says that he was thereupon given two weeks' notice of termination.  The applicant's evidence was that his employment was terminated at that time.  The respondent submits that no such termination occurred, either actually by the supervisor or by way of authority in the supervisor to terminate the employment.  The respondent says that there was never any termination of the employment.

The applicant consulted solicitors on 2 November 1994 and an application was lodged with this court pursuant to S170EA of the Act.  The applicant remained at work during the notice period.  Upon receipt of that application the respondents advised the applicant, and subsequently his solicitors, in writing (exhibit Y4) that the employment of the applicant had never been terminated by his supervisor either actually or with authority.  Notwithstanding this advice and discussions held with the senior manager of the respondent, the applicant ceased work with the respondent at the conclusion of business on the day the period of notice expired, being 11 November 1994.

On 9 November 1994 the applicant advised the respondent's manager, Mr Schwarzer, that this was to be his response.  The applicant's evidence was that a farewell party was held by other staff of the respondent for him that day.  On 14 November, the applicant received further correspondence from the respondent advising him that his employment had never been terminated (exhibit Y6), and further correspondence in the same nature on 24 November 1994.  This latter correspondence advised the applicant that a failure to return to work would be treated by the respondent as an abandonment by him of his employment.

On 25 November 1994 solicitors for the applicant wrote to the respondent advising them that the applicant had treated, and continued to treat, the termination of his employment as a termination by the respondent as at the expiration of the notice period on 11 November 1994 (exhibit Y8).  But the letter further advised that subject to terms set out therein, the applicant would be prepared to resume his former position if the difficulties leading to the dismissal were resolved.  On that same day the respondent replied (exhibit Y9) advising that the applicant had not been terminated and that he was expected to return to work forthwith, but undertaking to address issues of concern to the applicant with a view to resolving them.

At a meeting held on 5 December between the applicant and a senior personnel manager of the respondent, terms were agreed upon for his return to work.  Those terms were, on the evidence of the applicant:  (1) that difficulties with a casual employee of the respondent be resolved; (2) that continuity of employment be maintained; and (3) that the applicant receive payment for the period of absence between 11 November and his return to work.  There was still an outstanding issue as to the relationship between the applicant and his immediate supervisor, and on-going tension in this regard, but the applicant was advised of this and was aware that there would be tension which he would have to work towards overcoming.

The applicant returned to work with a temporarily modified and clarified job description being provided to him, clearly setting out the expectations of the employer as to his performance requirements and job priorities.  Whilst there is clear authority for the proposition that once notice of termination is given it cannot be unilaterally withdrawn, see: Birrell v Australian National Airlines Commission (1984) 5 FCR 447, I am not satisfied that if there was a termination on the occasion of 28 October it was unilaterally withdrawn. I am satisfied that the subsequent negotiations between the parties resulting in

settlement, removed from the termination of the employment - however it is described - any quality of unilateral withdrawal occurring on or after 11 November 1994.

The evidence of the applicant was that at the interview on 5 December he had been told that he should contact either the respondent’s personnel manager Ms Couprice directly, or other managers, if problems continued to arise after his return to work.  There is no evidence before me at this stage that the three terms of resumption were not complied with, however, an issue remains as to whether or not it was a term that the supervisor's behaviour upon the applicant's resumption of employment be acceptable to the applicant.  An issue arises in these proceedings as to the nature of the employment relationship which arose as a result of the return to work by the applicant.

On the applicant's submission there had been a termination of the employment on 28 October and the resumption therefore must be treated as a resumption on terms of settlement of the alleged unlawful termination claim.  On the respondent's submission, the applicant had never been dismissed and it was merely a resumption of employment after what could, for convenience, be described by me as at 5 December as an authorised absence.

On the evidence before me at this point in the proceedings, I am not satisfied that the employment of the applicant was not terminated on 28 October 1994.  I have not yet heard the evidence of the respondent supervisor who allegedly terminated the employment, and I therefore decline to dismiss the application on that basis.

However, the issue of whether or not termination occurred on 28 October was overtaken by events which occurred subsequent to the resumption of the

work by the applicant.  This is because between the period of his resumption of work on 7 December pursuant to the terms set out earlier herein, and 12 December 1994 the applicant alleges that his working environment was made unbearable by the conduct and attitude of his supervisor.

He relies upon the following matters:

1. that the supervisor wrote notes to him on three occasions  to give him instructions rather than speaking to him personally, and that his supervisor ceased to respond to pleasantries, or to speak to him other than when absolutely necessary;

2. that his supervisor checked on his starting and finishing times on an occasion when he attended at other of the respondent's premises to conduct a stocktake;

3. that he observed his supervisor checking the contents of a delivery docket to ensure that the applicant was complying with a direction as to lead times.

The applicant became upset by these matters and left work early on 12 December. He attended a doctor who advised that he was unfit for work until 23 December 1994 due to stress.  Sick leave arrangements were made for the applicant by the respondent, and the applicant was in receipt of paid sick leave to 16 December.  On 22 December the applicant decided he was not able to return to his place of employment at the expiration of sick leave.  Correspondence to this effect was sent to the respondent by the applicant's solicitors (exhibit Y13). 

The letter stated that the applicant had envisaged that upon his return to work after 5 December relations between he and his immediate supervisor would be amicable.  The three matters of complaint as to the supervisor's conduct discussed earlier herein were also referred to in the letter.  At no

time between the date of resumption of the employment on 7 December 1994 and the  letter of 22 December 1994 had the applicant raised any matters of concern with the personnel department of the respondent.  At no time, despite discussions during that period with Ms Couprice, did the applicant foreshadow that he was unable to return to work.

In the letter of 22 December, the applicant advised the respondent that he would be proceeding with the unfair dismissal application in this court.  He was referring in my view to the application lodged in respect of the “first alleged termination”.  That is the state of the evidence before me at this time.  The respondent says that the letter of 22 December constituted an election by the applicant not to return to his employment.  The respondent says that neither on 28 October or at any time thereafter, including after 7 December, was there a termination of employment at the initiative of the employer.  The applicant says that the conduct of the supervisor after his return to work constituted either a failure to abide by the terms of settlement arising out of the termination of 28 October, and/or a subsequent constructive dismissal.

As I have earlier stated, I am not satisfied that there was not a termination of the employment of the applicant on 28 October.  However, I am of the view that any such termination was withdrawn, and that that withdrawal was not a unilateral withdrawal in the same sense considered in Birrell's case.  It was a withdrawal which was accepted by the applicant as evidenced by his return to work, subject to terms which I find were complied, with on 7 December 1994.  In finding that those terms were complied with, I am referring to the three specified terms in this decision.

The only outstanding issue in relation to the jurisdiction aspect of this matter is the question of whether or not there was a constructive dismissal of the

applicant arising out of the conduct of the respondent or its supervisor in the period 7 to 12 December 1994.  The only evidence before me at this time relates to the applicant's view of, and reaction to, the supervisor's alleged conduct.  In the absence of hearing evidence from the respondent as to that matter I am unable to determine this aspect of the jurisdiction question.  This is because there is at least some evidence on the part of the applicant as to conduct which he alleges made his work place unbearable, and some evidence as to the stress and upset it caused him.

Whether this was reasonable in the circumstances, or indeed sufficient to constitute conduct on the part of the employer amounting to constructive dismissal, are matters that in my opinion can only be determined conclusively by hearing from the respondent's witness as to the events which occurred in relation to those matters, and which are said by the applicant to constitute constructive dismissal.  I therefore decline at this stage to dismiss the application for want of jurisdiction. 

Having regard to my reasons in relation to the issue of the alleged termination of the employment on 11 November 1994, the parties may wish to consider whether they wish to call evidence in these proceedings in relation to matters other than those matters touching upon the issue of whether there was a constructive dismissal some time between the period of the applicant’s return to work on 7 December 1994 and the letter of 22 December 1994.

They are my reasons in relation to the application of the respondent that the matter be dismissed for want of jurisdiction.  As I have said, I decline to dismiss the matter for want of jurisdiction at this stage.  I intend to adjourn

the proceedings for 15 minutes to allow the parties to consider their positions in relation to any further evidence they may wish to call. The proceedings are adjourned.

I certify that this and the preceding seven (7) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson as recorded in the draft
transcript and revised by the Judicial Registrar on
10 April 1995.

Associate:
Dated:    17 March 1995

Solicitors for the applicant:  Ryan Carlisle Thomas
Counsel appearing for the applicant:  Ms M Young

Representatives for the respondent:  Australian Chamber of   Manufactures
Counsel appearing for the respondent:  Mr J Murphy

Date of hearing:  16 March 1995
Date of judgment:  17 March 1995