Kym Shuttleworth v Neat `N' Trim Uniforms Pty Ltd

[1995] IRCA 385

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2202 of 1995

B E T W E E N :

KYM SHUTTLEWORTH
Applicant

AND

NEAT ‘N’ TRIM UNIFORMS PTY LTD
Applicant

Before:       Judicial Registrar Murphy
Place:         Melbourne
Date:          10 August 1995

REASONS FOR JUDGMENT (Ex Tempore)
Revised from Transcript

Part VIA of the Industrial Relations Act requires that there be a termination of employment at the initiative of the employer. In this case the Applicant argues that her employment was terminated at the initiative of the Respondent. The Applicant is a young woman who commenced duties with the Respondent in November 1994. In January 1995 she was transferred to the data entry section of the Respondent. At that time she was told that the position was a critical position within the Respondent’s operation and a reliable person was required. Over the period January to March 1995 the Applicant had a number of periods off work due to illness. She provided medical certificates covering the periods that she was absent from her employment.

Her absence caused the Respondent difficulties in its operation and this culminated in a meeting between the Applicant, Ms Thompson the National Stockist Manager of the Respondent and Ms Kasimis the Applicant’s superior on Friday 17 March 1995.  For the two weeks prior to that meeting the Applicant had been absent from work due to illness and 17 March was her first day back at work.  Prior to the meeting Ms Thompson, who also discharged personnel duties within the Respondent, discussed with Mr Ryan, the Respondent’s System Manager, and the Applicant’s management superior, the purpose of the meeting.  It was agreed that the purpose of the meeting was to address the backlog in the data entry section of the Respondent consequent upon the absences of the Applicant from work.

The Respondent had formed the view that the Applicant may be having difficulties with her duties, would do so in the future due to the backlog, and that these difficulties were being manifested in the periods that she was having off work.  It was agreed that Ms Thompson and Ms Kasimis would attend the meeting to discuss these matters with the Applicant.  It was also agreed that the Applicant would be offered the option of other positions within the Respondent if she felt she was unable to discharge the duties as a data entry operator.  On instructions from senior management within the Respondent the Applicant was also to be advised that she would be given the opportunity to seek alternative employment outside the Respondent and that for a period of three weeks she would be offered time off work to attend interviews. 

The crucial question in this proceeding is whose version of what happened at the actual meeting is to be accepted.  It was the Applicant’s version that at the meeting she was given three weeks notice by Ms Thompson.  She gave evidence that she was told that she had to either accept the transfer to other duties within the Respondent in the despatch area, do filing or obtain another position within three weeks or there would be no job for her.  She gave evidence that immediately after the meeting she was told by Ms Kasimis that she would no longer be doing data entry work.  Ms Kasimis denied that. 

The Respondent’s version of the meeting was that it was a short talk to discuss the difficulties that the Respondent perceived that it faced with the Applicant and to ascertain whether the Applicant was happy in her duties.  It was purely to explore with the Applicant options if she felt that the pressure of her duties were too much and she wished to do alternative duties.  Ms Thompson's evidence was that the Applicant was invited to consider the options that had been discussed with her over the weekend and to discuss the matter again on the Monday.  It was also Ms Kasimis' evidence that if the Applicant had been unable to obtain alternative employment at the end of three weeks then there would also be a discussion at that time.

On Monday 20 March the Applicant attended work at approximately 8.30am and sought to see the chairman of the company.  He was unavailable.  She then saw her management superior, Mr Ryan, and advised him that she wished to resign forthwith.  It was the Applicant’s version that she told Mr Ryan that she had been told she would have to leave in three weeks and she wished to leave immediately.  Mr Ryan said there was no reference to three weeks in his conversation with her and that as he was unfamiliar with the position when someone wished to resign he took her to the paymistress in order to address the appropriate paper work.

As the two were going to see the paymistress the Applicant passed a friend of hers who worked there, Ms Gill.  She was personal assistant to the managing director.  She told her that she was leaving, was sick of her treatment and had had enough.  The Applicant and Mr Ryan then proceeded to the paymistress.  The Applicant then signed a document which stated that she was leaving on that day and gave as her reason for leaving:

"By mutual agreement Kim resigned on 20 March 1995 at her request.  No moneys will be held in lieu of notice nor will any moneys be paid in lieu of notice."

The Applicant then left. 

Before the Applicant had attended Mr Ryan and the paymistress she had seen her co-worker and lifelong personal friend, Ms Convey.  She had given Ms Convey the impression that she intended to resign.  She had also had a discussion with Ms Convey on 17 March immediately after the discussion with Ms Thompson and Ms Kasimis at which she had told Ms Convey that she had been offered other positions within the company and that they thought that she was not happy in her position with the company.  She also told Ms Convey on that day that she had been offered time off to look for other positions.

Ms Convey gave evidence that it was not her impression from the discussion on 17 March that the Applicant would not be working in the future in data entry.  Ms Convey gave evidence that the Applicant’s attitude on 20 March was that she was going to resign and she looked annoyed.

In assessing whose version of events is likely to be the more credible, I place particular reliance on the fact that the Applicant at no stage told Ms Convey that she had been given three weeks notice of termination of her employment.  She also did not tell Ms Gill that.  Ms Gill gave evidence that she was also a personal friend and she had originally secured her the position.  Further, Mr Ryan, who was her management superior, and the one who gave evidence that he found that when she was discharging duties she did them well, at no stage gave evidence that he had made any decision that she was to be terminated or even that she had been given notice of termination.

It follows from this that the more probable version of events at the meeting of 17 March is that given by Ms Thompson and Ms Kasimis.  Both were impressive witnesses.  Their evidence was that the meeting did not have the flavour of a disciplinary meeting.  It was a meeting purely to attempt to assist the Applicant and to ascertain the Applicant’s attitude to her position in the light of the experience with illness that the Applicant had been having and the backlog that the Applicant faced in the continual discharge of her duties as a data entry clerk. 

It follows from this that I find that at no stage on 17 March did the Respondent take any action which could constitute a repudiation of the contract of employment between the parties.  On the contrary, I find that the Respondent was only seeking to assist the Applicant by offering her options without manifesting any intention to move her from her current position or requiring her to leave the Respondent at the end of three weeks.  I find that the only reference to three weeks was that she was offered the option to seek alternative employment and that for the short period of three weeks the Respondent was prepared to give her time off to attend interviews.  I find that on 17 March she was offered these options and invited to consider her position over the weekend.

I therefore reject the argument that there was any termination or notice of termination of her employment on 17 March.

It was also argued that there was a constructive dismissal on 20 March.  I reject that argument.  I find that the Applicant had the opportunity to consider the matters that had been discussed on 17 March over the weekend and she formed the view that she intended to resign her employment.  She then discussed that with Mr Ryan.  Then by agreement between the parties she was not required to give any notice of termination of her employment.  The parties agreed that the resignation could take effect then and there.  The Applicant then signed the document which is in evidence to that effect.
It follows from this that there has been no termination of her employment at the initiative of the employer and that the application must be dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. The application is dismissed.

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

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:            
Dated:  17 August 1995

Solicitors for the Applicant:            Ryan Carlisle Thomas
Counsel for the Applicant:               Ms L. Gyfteas

Representatives for the Respondent: Australian Chamber of
  Manufactures
Counsel for the Respondent:            Mr A. Turnbull

Date of hearing:  10 August 1995
Date of judgment:  10 August 1995

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - RESIGNATION - CONSTRUCTIVE DISMISSAL

KYM SHUTTLEWORTH -v- NEAT ‘N’ TRIM UNIFORMS PTY LTD

No. VI 2202 of 1995

Before:  Judicial Registrar Murphy
Place:  Melbourne
Date:  10 August 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2202 of 1995

B E T W E E N :

KYM SHUTTLEWORTH
Applicant

AND

NEAT ‘N’ TRIM UNIFORMS PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Murphy  10 August 1995

THE COURT ORDERS:

1. The application is dismissed.

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