King v Transport Workers Union of Australia

[1996] IRCA 291

DECISION NO:  291/96 

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - RESIGNATION - whether termination at the initiative of the employer

Industrial Relations Act 1988, ss 170EA, 170DE(1)

CORINE KING v TRANSPORT WORKERS UNION OF AUSTRALIA
VI 5103 of 1995

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  24 JUNE 1996

IN THE INDUSTRIAL RELATION COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5103 of 1995

B E T W E E N:

Corine KING
Applicant

A N D

TRANSPORT WORKERS UNION OF AUSTRALIA
Respondent

MINUTES OF ORDERS

24 June 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. The application is dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATION COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5103 of 1995

B E T W E E N:

Corine KING
Applicant

A N D

TRANSPORT WORKERS UNION OF AUSTRALIA
Respondent

REASONS FOR DECISION

24 June 1996  PARKINSON JR

This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as an administrative officer. She was employed on 6 October 1992 and her employment terminated on 30 June 1995. A letter confirming that the employment had terminated was sent to the applicant on 3 July 1995. That letter constitutes written notice of termination of the employment. The application in this proceeding was filed on 4 October 1995. The application was filed out of the time prescribed by s170EA of the Act and the applicant requires an extension of the time for filing. The explanation given for the filing out of time by the applicant was her state of health at the time of the termination of the employment, including the fact that she was hospitalised shortly thereafter for a brief period of time. She also informed the court that she did not have knowledge of her entitlements in the jurisdiction until she was subsequently advised by her solicitor, Mr Nowicki, in a chance meeting. As to this latter matter, there was however evidence in the proceedings that the applicant had an awareness of “unfair dismissal” laws as she described them. I am not satisfied that in the present case the claim to ignorance of entitlements would of itself be sufficient to justify an extension of time where the period which elapsed between the date of the termination of the employment and the date of filing was over three months. However, I do accept that the circumstances of the hospitalisation of the applicant shortly after the termination together with the recent sadness in her domestic life may have contributed to the delay in pursuing her entitlements. I am not satisfied that significant prejudice arises to the respondent to justify a refusal to grant leave to the applicant to proceed and I propose to extend the time for filing of the application to 4 October 1995.

I turn now to the substantive aspects of the proceeding. At issue in these proceedings is whether the applicant voluntarily terminated the employment by resignation or whether the termination of the employment was at the initiative of the employer and thus of the type contemplated by s170EA of the Act. The respondent is an organisation of employees registered pursuant to the Industrial Relations Act 1988. The applicant had been employed during the term of office of the then Victorian Branch Secretary, Mr Mauchlin. The position of Secretary of the respondent is an elected position. In 1994 Mr Noonan was elected to the office of Secretary of the Branch. The applicant’s evidence is that she felt ostracised as a result of the change of leadership and that she understood that she would ultimately have to leave or have her employment terminated. The applicant continued to work for the respondent after Mr Noonan’s election and after the election of a new committee of management. During the course of the employment, she was the subject of warning letters directed to her work performance. These letters were dated 10 June 1993 and 18 August 1994.

The first warning letter was issued on 10 June 1993 during the incumbency of Mr Mauchlin, the predecessor to Mr Noonan. The evidence of the applicant was that this letter was issued to all administrative employees as a result of a concern as to their ongoing work performance. She did not suggest that this letter was issued to her as part of a process designed to remove her from her employment. The evidence of the respondent as to the warning letter was that it was a letter specifically directed to the applicant as a result of her conduct and work performance. The respondent alleges that the applicant was, in the course of the employment, disruptive of the workplace and unco-operative with colleagues, and failured to perform certain tasks or duties. The second warning letter was issued on 18 August 1994. This letter draws to the applicant’s attention a number of concerns in relation to her performance, including matters of a similar nature to those matters complained of in the letter of 10 June 1993, together with concerns that she made serious errors in the performance of her work. These errors were complained of by other employees such as the occupational health and safety officer and the receptionist. These letters both referred to an expectation of ongoing improvement in work performance. Neither these letters nor their contents are relied upon by the respondent as forming any basis for termination of employment, nor are they relied upon as establishing a valid reason for termination of the employment for the purposes of s170DE(1) of the Act. The respondent’s case is that there was not a termination at the initiative of the employer.

In the course of the employment the applicant had been subject to frequent absences on account of illness or injury.  During the period of the employment she also underwent surgery and was absent from work for periods of up to a month at a time.  However no issue had been taken by the respondent as to these absences, some of which were not the subject of sick leave entitlements.  It is clear that the respondent took no steps at any time to prejudice the applicant’s employment as a consequence of her various periods of illness or hospitalisation. In June 1994, when the applicant had ceased to have any entitlement to sick leave or any annual leave entitlements, the respondent wrote to her advising her that nevertheless her employment remained secure and that she was able to return to work as soon as her health allowed.  It appears that no further incidents of a disciplinary nature arose between August 1994 and the date the employment ceased, although it is clear from the evidence that the applicant did not relate well to her supervisor, the office manager Ms Joanne Manos, and that there was some tension in the work environment, principally between the applicant and other administrative employees.

On 21 June 1995 the applicant’s mother died.  The applicant was clearly extremely distressed by her loss.  The respondent was informed of the matter and the absence of the applicant. It was subsequently informed of the likely duration of the absence by the applicant by telephone, although the applicant’s manager, Ms Manos, was not directly informed.  Whilst Ms Manos in a later telephone conversation indicated to the applicant that she ought to have advised her directly, nevertheless she also advised the applicant that she was to take all the time she needed to resolve matters relating to her mother’s death and “not to come in until you are ready”.  The applicant conceded that this was the case.  Ms Manos struck me as a sensible and moderate person who I accept would act reasonably in such circumstances.  The applicant returned to the workplace on 30 June 1995.  She was clearly upset by her recent experience.  No incident occurred at the workplace upon her return which was a catalyst for the termination of the employment on that day.

On that day the applicant says she was approached by Mr Ryan, an employee of the respondent, who said “I have been asked by Bill Noonan to ask you to resign”, and further “if you don’t resign you will be sacked on Monday”.  The applicant says that she agreed, and was then assisted by Mr Ryan in writing out her resignation letter.

The evidence of Mr Ryan is that he did not approach the applicant, but that she approached him expressing a desire to resign, in view of the pressures she had been under recently.  The recent death of her mother was at the forefront of her mind at the time of the discussion.  Mr Ryan’s evidence was that he then advised the applicant to think carefully about this before she did anything hasty, and that the applicant then left his office and returned some short time later to confirm her desire to resign.  Mr Ryan’s evidence was that he then contacted Mr Noonan and obtained his agreement to an ex-gratia payment for the applicant to assist her until she obtained other employment.  The evidence of Mr Noonan was that such a payment is a usual one when an employee of the respondent ceases employment, whether voluntarily or otherwise.

The applicant contends that she was told that she either resign with a payment being made, or that her employment would be terminated on the following Monday when Mr Noonan returned from interstate.  The evidence does not suggest a basis for this ultimatum to be put, or any context in which it might reasonably be concluded to have occurred.  This is because the incidents which were the subject of warning letters had occurred in the previous years.  No further warnings or recent disciplinary action had been taken against the applicant.  The applicant concedes that arrangements for absence as a consequence of illness and for her recent bereavement were made with the respondent and with its assistance.  The evidence does not satisfy me that there is any relation between the warning letters and the events of 30 June 1995.  Nor does the evidence satisfy me that there was a campaign or a design on the part of the respondent after the election of Mr Noonan, to engineer a situation whereby it could terminate the applicant’s employment.  The evidence suggests that the respondent had genuine concerns as to the applicant’s work performance and conduct and that these, whilst being the subject of written warnings, were never relied upon as a basis to terminate her employment.  The warning letters originated in both the period of Mr Noonan’s predecessor as Secretary of the Branch and in the period of Mr Noonan’s incumbency.  There is no evidence to suggest that these written warnings were contrived.

The evidence in these proceedings is that the respondent, through its branch committee of management, took steps to confirm with the applicant her security of employment in the circumstances of her absences for hospitalisation.  I am also satisfied that all administrative staff, including the applicant, were informed that they would not be affected by the change of Secretary and that they ought not feel concerned for their positions.  The respondent also agreed to make payment for the applicant’s course fees for both 1994 and 1995.  Despite this assurance, the applicant appears to have maintained a suspicion of the intentions of the respondent and I am of the view that this affected her perception of the workplace and her participation in it.

Both the applicant and Mr Ryan gave credible accounts of their recollection of the circumstances of 30 June 1995.  In the circumstances however I prefer the evidence of Mr Ryan as being a more reliable account of the events surrounding the termination of the employment.  The applicant’s evidence was that she wrote the resignation letter under duress and that it was dictated by Mr Ryan.  Whilst I accept that the applicant queried with Mr Ryan what the letter should contain, and that he assisted in this regard, I accept his evidence that he did not dictate its contents.  Further, the applicant’s evidence as to her knowledge of an employee’s entitlements at the time of the resignation, suggests to me that it would be unlikely she would meekly and without incident tender her resignation simply at the request of Mr Ryan.  I do not accept that this was the case.  I prefer the evidence of Mr Ryan in this regard and am of the view that the circumstances are supported by the evidence of Ms Manos as to the events of the day and the contemporaneous advice she received of the resignation.  Whilst it is clear that at the time of the resignation being tendered the applicant was upset as a result of her recent bereavement, this factor of itself does not oblige the respondent to take steps other than those taken by Mr Ryan, to clarify the applicant’s true intentions regarding the continuation of the employment.  Those steps were taken by him and the applicant was given adequate time to reconsider the resignation.

I am not satisfied that the termination of the employment was a termination at the initiative of the employer. Consequently, the termination of employment is not a termination of the type contemplated by s170EA of the Industrial Relations Act 1988. For the reasons set out herein I dismiss the application.

I certify that this and the preceding seven (7) pages
are a true copy of the reasons for decision
of Judicial Registrar Parkinson.

Associate:
Dated:   24 June 1996

APPEARANCES

Solicitors for the applicant:  Harry Nowicki & Co
Counsel appearing for the applicant:  Ms J Patrick

Counsel appearing for the respondent:  Mr W Friend

Date of hearing:  2 May 1996