Marek Czuba v Medical Dynamics Australia Pty Ltd

[1995] IRCA 200

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SYDNEY DISTRICT REGISTRY   No.NI 1018 of 1994

BETWEEN:

CZUBA
Applicant

AND:

MEDICAL DYNAMICS
Respondent

BEFORE:                 LOCKE JR
PLACE:  SYDNEY
DATE:  5 MAY 1994

REASONS FOR JUDGMENT

By application made pursuant to section 170EA of the Industrial Relations Act 1988 (the Act), the applicant contends that on 18 October 1994, his employment as Product/Regulatory Affairs Manager with the respondent was unlawfully terminated.

This was denied by the respondent who contended the applicant resigned.  Thus the issue for determination was whether the actions of the respondent on 18 October last, could be characterised as a termination of the applicant's employment at the initiative of the respondent - Section 170CB of the Act  and Article 3 of the Termination of Employment Convention.

Alternatively, the respondent argues that during the period of his employment, the applicant without the knowledge and consent of the respondent, was effectively employed by another organisation,the Therapeutic Goods Agency (the TGA).  The Pharmaceutical Industry is strictly regulated by this federal authority.  This is pertinent as the respondent markets specialist pharmaceutical products.

Witnesses called at the hearing were:

1.        the applicant

2.        Daryl Gregory Cullen, proprietor of the respondent company

3.        Mr John Middleton Bacon, manager of the respondent business.

Major functions of TGA include:

a.         The determination of standards for therapeutic goods.

b.        The establishment of an Australian Register of therapeutic   goods.

c.         To control the import, export and supply of therapeutic   goods;            and

d.        Licensing of Australian manufacturers of therapeutic goods.

Deposing in paragraph 7 of his affidavit of 28th May 1995, Mr Cullen said:

"The pharmaceutical industry is strictly regulated by.....TGA The agency administers the Therapeutic Goods Act 1989 (the Act). The role of the agency is expressed in the act to promote the development of a national system of controls relating to the quality, safety, efficiency and timely availability of therapeutic goods used in Australia or exported from Australia whether the goods are produced in Australia or elsewhere."

He continues at paragraph 4:

"As a supplier of therapeutic goods virtually every aspect of MDA's operations are subject to decisions by the Agency.  Indeed as a small pharmaceutical company with a limited number of products, a decision by the Agency which was adverse to the marketing of any of our products could well affect the financial viability of the company."

Mr Bacon in giving evidence described what type of business the company transacted in the following terms:

"Medical Dynamics is not a manufacturing company, we import all of our products from various manufacturers overseas, they're manufactured on our behalf.  The drugs which we import, we add value in the form of intellectual value, marketing and regulatory value.  An example of the products - we have several products, but an example would be, we have two products for treatment of patients with rare types of haemophilia and these drugs are used so that these types of haemophilia people can be - can undergo surgery while under treatment of these products, otherwise they would bleed severely during surgery, and those products are imported.  We have a product which is used during surgery and which is called fibrin glue, which is used to glue people together where suturing is very difficult.  An example would be the manufacturing of a very small liver from an adult liver for transplantation into a child.  Another product which we are working on is an asthma drug which is used for the diagnosis of asthma, and it's actually a testing drug where people have it sprayed into their lungs.  True asthmatics have a response whereas people who perhaps are true asthmatics would only have a very, very small response and they wouldn't need normal asthma drugs.  So they're very highly specialised drugs which we sell."

In late May 1994, the respondent advertised for the position of Product and Regulatory Affairs Manager.  The applicant, then employed by TGA proposed himself for the position.

An interview was held by the respondent with the applicant and on 4 July 1994 he commenced working with the respondent, on probation for three months at a salary of $56,000.00.

In order to facilitate the applicant's move from Canberra to Sydney, the respondent paid $1000.00 as well as paying his subscription to a professional organisation.

Each new professional recruit to the respondent's business is required to sign a CONFIDENTIALITY AGREEMENT.  The reason for this requirement is deposed to in paragraph 8 of Mr Cullen's affidavit of 28 March 1995 which reads in effect:

"Because MDA. is a comparatively small pharmaceutical company operating in a very competitive industry, any unauthorised disclosure of the company's affairs could cause it irreparable harm."

It would appear the applicant signed one such agreement.  However, before taking up his employment with the respondent, he did not resign his position with TGA because he says:

"I was advised by several colleagues at the TGA that I should apply for leave without pay prior to commencing the three month contract as I would not be eligible to return to my then current employment if the respondent did not offer me a position of permanent employment at the conclusion of the three month period."

Upon taking this advice it would appear that the applicant gave no thought to declaring this possible conflict of interest to the respondent.

Effect of Confidentiality Agreement

Because MDA. is a comparatively small pharmaceutical firm, operating in a very competitive industry, the importance of security was stressed to all employees on induction.  As further insurance, all professional staff (of which the applicant was one) were required to sign this Confidentiality Agreement.  A copy of the agreement signed by the applicant is annexure "C" to Mr Cullen's affidavit.  It was executed on 24 June 1994 and creates a complete bar on the passing of information by an employee save that which was already in the public domain.

Contact with TGA

In the time the applicant was working with the respondent, Mr Bacon described  what contact he had with TGA.

"Like discussion with TGA regarding submission of dossiers, attendance at TGA and other conferences as required....... 

Certainly, conversations........ . 

Our industry is very heavily regulated by the TGA as you would know and in the registration of pharmaceutical there can be a considerable amount of negotiation and also acquisition of information.  Sometimes we may require information from the TGA in regard to interpretations of the Act........ .".

When asked what results the applicant's contact with the TGA brought to the respondent. This answer fell: 

"Mixture.  Some conversations resulted in information that was, obviously not sensitive information, information which was available for companies such as ourselves for the assembly of information for the registration of drugs.  Some contacts resulted in information which we didn't have which was very useful, other contacts, perhaps, didn't result in as much information that was useful perhaps."

Further:

"So it was just to garner information, was it?

That's correct.

Some mixed results? 

That's correct.  Which is what we would expect."

It would appear that the applicant was an excellent performer of the duties allotted to him and he enjoyed a very good working relation with Mr Darryl Cullen, the proprietor of the business and Mr John Bacon, the manager.

On 4 October 1994, at the completion of the probationary period, the applicant was confirmed in the position at the salary of $56,000.00 p.a. plus executory bonuses and other perquisites.

It was at this point of time that the applicant purchased by way, of lease, a luxury motor vehicle, which obliged him to repay $787.00 per month for a period of sixty months and a 40% residual at the determination of the said period.

Just prior  to the conclusion of his probationary period on 19 September 1994, the applicant said that he formally resigned from TGA which was to be effective from 21 September 1994.  This fact appears to be confirmed by a letter dated 3 February 1995 from TGA to "To Whom it May Concern", Annexure "B" to the applicant's affidavit sworn 1 May 1995.

On 17 October 1994, the applicant received a facsimile from TGA at the respondent's premises.  This was a performance agreement in the applicant's name relating to the period 1 October 1993 to 30 September 1994.  This document became exhibit "2" in the proceedings.  Page four of the exhibit is of some note as it refers to "Leave without pay, July to October 1994."  The date of the document is 17 October 1994 and makes no reference to the alleged resignation letter of 19 September 1994.

This is how the applicant said he explained the document to the respondents:

I said:"I took leave without pay for six month period, but I resigned completely from the TGA in mid September.  The performance agreement covered the period 1 October 1993 to 30 September 1994.  I am eligible for performance pay for the period 1 October 1993 to 1 July 1994, the day my leave without pay took effect."

DC:"Why did you take leave without pay?"

I said:"A colleague at work suggested that I should as I was only being offered a three month contract and to protect my own interests if things didn't work out but I resigned form the TGA in September as I believed things were going well."

Somehow or other this facsimile found it's way to Mr Cullen's desk.  He was "astounded by the contents".  He interpreted the document to mean, inter alia, that the applicant was still employed by TGA.  Mr Bacon made enquires of the agency of this fact.  The result was inconclusive but there was evidence to suggest, rightly or wrongly, that the applicant was still so employed.

A meeting was arranged the next morning (18 October) - present were Messrs Cullen and Bacon and of course the applicant.  What was said at this meeting is a matter of dispute.  Both witnesses for the respondent gave evidence that they prepared their affidavits independently of each other, relying on their own recollection of events.  They were admonished in this regard by their solicitor and I have no doubt that this is what in fact occurred.  There was nothing in either Mr Cullen or Mr Bacon's demeanour to suggest their recollections ought not be accepted.  I draw inferences in favour of the respondent's versions and accept that is what indeed was said according to each persons independent recollection five months on. 

This is how Mr Cullen recollects what was said at this gathering:

At the meeting I said to the applicant, "Marek, I am very concerned about this facsimile."  It says that you still work for TGA.  Where do your loyalties lie.  With the TGA or with MDA?"  He said "With Medical Dynamics of course."  I said: "Can you explain to me why the dates on this fax indicate that you are still employed by the TGA.  is the document wrong?  Is there some sort of mistake?  At this point I did not receive a reply.  I said:  " Your know how important it is that the affairs and operations of the Company remain confidential.  It seems to me that you have a couple of choices open to you.  You work for MDA and don't have an arrangement with anyone else where it conflicts with your duties to the company or if you want to work for the TGA or anyone else you do that, but you don't work for MDA at the same time."

At that point the applicant remained silent and seemed indifferent to what I was saying.  He then said, "I'm sorry, I suppose I've let you down".  I said, "Is that all your have got to say, if that is your attitude it is difficult for me or anyone else here to have any trust in you".  He said, "I will resign".  At this point I was astounded.

In exasperation I said, "Okay, if that is what you wish, but I'm not happy with you staying here in those circumstances.  Please put your resignation in writing.  I will make arrangements to have your things collected from your office".  I then said, "I am very disappointed. This whole business has been very costly to MDA.  Nevertheless, I suppose you require one month's salary and on top of that I will pay your holiday entitlements.

Shortly afterwards I walked with the applicant to the front door of the building.  I said to him, "Is there nothing that you want to say to me which might restore some trust?'  The applicant seemed calm, almost indifferent and said, "I'm sorry I let you down, let's not let it affect our future relations.  The applicant then shook hands with myself and John Bacon and said, "When things settle down I'll ring you and we will have lunch."

Mr Bacon recalled the events as follows:

"Darryll Cullen (DC): This performance appraisal was given to me yesterday.  According to this document you are still employed by the TGA.  I am very concerned about it because if it is the case, there seems to be a clear conflict of interest; could you please explain this situation and tell me where your loyalty lies."

Marek Czuba (MC):    With MDA of course, of course."

DC:That is not apparent from the document.  Have you been discussing MDA's business with your colleagues at TGA?  It has been known for TGA to use contacts in the Industry to find out information.  I want to know what is going on, because according to this appraisal, you are still employed by them.  I want you to explain the situation and convince me that it is innocent."

The applicant was silent and did not answer this query.

DC:'Where do you see your future?  Why didn't you tell us about your employment situation so that it could be understood?"

MC:"My colleagues at the TGA recommended that I take this option so that if things didn't work out I could return to TGA at any time."

DC"Marek it appears there are three options, you work for TGA or MDA but you can't do both".

MC:     "Darryll I have let you down, I will resign".

DC:"If that is the way you want it Marek, but I will require it in writing."

MC     "Very well."

DC:"If that is the way you want it, there seems little point you staying any longer.  Your resignation is accepted and we'll pay you one months salary in lieu."

MC:"You don't have to pay me for the month.  I will write out a resignation now."

DC:"Nevertheless I will pay you.  If you want to go I would prefer you left now.:

I said: "Is this really what you want?  It is not how I hoped thing would work out."

MC:"I have let you down.  I hope this does not affect our future dealings.  We'll have to get together for a drink and lunch in a couple of weeks.  I hold no hard feeling over this."

Different yet again was the applicant's version:

"DC:    (holding a copy of the performance agreement from TGA that I had received by facsimile)

"I am concerned about this performance agreement.  I lost a lot of sleep last night over this.  John and I discussed this last night after work.  Where do you see your future is?"

MC:"With medical Dynamics of course."

DC:"Have you been passing on information to the TGA?"

MC:"No.  Of course not.  Darryl, do you believe that I have been passing on information?"

DC:"No.  the medical officers of the TGA are involved in spying on the pharmaceutical industry through their doctor friends.  I have got three choices:  I can dismiss you or I can ask you for your resignation."

JB:"Marek, I hope it is the third alternative."

DC:"Marek, have you got anything to say to explain this?"

MC:"I took leave without pay for a six month period, but I resigned completely from the TGA in mid September. I am eligible for performance pay for the period 1 October 1993 to 1 July 1994, the day my leave without pay took effect."

DC:"Why did you take leave without pay?"

MC:"A colleague at work suggested that I should as I was only being offered a three month contract and to protect my own interests if things didn't work out but I resigned from the TGA in September as I believed things were going well."

DC:"I don't think I can trust you any more.  I have to ask you for your resignation.  It will look better on your CV."(This is denied by the respondent)

MC:"All right I'll resign.  But I haven't done anything wrong."

DC:"We will pay you your entitlements and back pay and give you one months salary and benefits in lieu of notice.  Also write a note that you are resigning.'

JB:"I'm sorry Marek.  I tried y best on your behalf."

DC:Sit here on the patio.  We will pack your personal belongings from your office."

MC:I waited on the patio for a couple of minutes while Darryl Cullen and John Bacon went inside the office.  A few minutes later Darryl Cullen returned and I said words to the following effect, "Darryl could I please make a phone call."

DC:"All right."

He then said to Michelle the secretary, "Marek is making a phone

call.He can wait outside again at the front."

I then left the office with my personal belongings.

As far as Messrs Bacon & Cullen are concerned, I do not regard the differences in re-collection as affecting their credit.  They are just normal omissions that one might expect with the effluxion of time.

During the period of time that these two gentlemen gave their evidence.  I observed them carefully.  I was impressed by the manner in which they gave that evidence.  I consider them truthful witnesses.  Therefore, I am of the view that the applicant did remain silent when asked whether he was still employed at TGA and was the document incorrect.

Further, I am satisfied that Mr Cullen pointed out to the applicant the choices which were open to him:

"...if you want to work for TGA or anybody else, you do that but you don't work for MDA at the same time."

That was the real choice the applicant had to make, not whether he should resign or be dismissed.  Again, it is the respondents evidence that the applicant remained silent and said:

"I am sorry, I suppose I have let you down."

After some further conversation which concerned the applicant's attitude and the difficulty the respondent would have had in trusting him, the applicant said:

"I resign."

It is the applicant's case that he had no real choice but to resign.  However, for whatever reason, I find that the applicant did not proffer any explanation for his dual employment nor did he assert the fact that he had resigned from TGA the previous September. Given the applicant's career experience and academic achievements, it would be expected no matter how nonplused he may have been when confronted with the material contained in the facsimile, that he would have been able to argue a case on his own behalf and that he had not in any way compromised the respondents' business.

Interestingly, the applicant was able to propound his case adequately in giving his evidence in the witness box.

The applicant averred  that he had in no way compromised MDA's business because of his remaining interest in TGA (whatever it may have been).  However, he did say his loyalty resided with MDA.  It is the applicant's evidence, he did not imperil the respondent's arrangements with TGA.  As there was no evidence to the contrary I accept this was so.

Just as it would be expected that a man of the applicant's talents and experience could adequately defend himself, so one might expect that in writing a letter of resignation, he would restrict himself to resigning simpliciter.  Not so:  he included gratuitous material of an inculpatory    nature which tends to support the respondents case.  The contents of this document read as follows:

"18.12.94

Mr Darryll Cullen  
           CEO
           Medical Dynamics Australia

           PO Box 620
           MONA VALE   NSW   2103

Dear Darryll

I wish to tender my resignation effective immediately.  I am sorry that I've let you down.  Hopefully this will not cloud any future relationship we may have.

Thank you for your time and patience with me.

Yours sincerely

(signed)

Marek a. Czuba"

When the said document was created there was no one else present on the patio.  Nobody to exert influence over him.  This document is very probative  of the respondent's case.

Strange as it may seem, the applicant also suggested lunch at a later stage (uncontroverted evidence).  This attitude of good will is inconsistent with somebody who had no choice but to resign from a position he obviously found gratifying.

A subpoena to produce certain documents associated with the applicant's employment was issued to Work Safe Australia, the applicant's employer since 31 October 1994.  Included in those documents produced in response to this subpoena was one titled : DETAILS OF NEW STAFF: PERSONAL DETAILS.  The lower part of the document is headed EMPLOYMENT HISTORY and contains the following details:

EMPLOYER  POSITION     FROM  TO     REASON FOR LEAVING
  HELD

TGA               SPO C            10/90 - 7/94     Transfer to Sydney

Medical          Regulatory     7/94 - 10/94     Resigned
Dynamics       Affairs
Australia         Manager

There are two very significant things to note about these particulars.  Firstly, the applicant gives as his reason for leaving TGA not resignation but merely transfer to Sydney.  More importantly, he does give resignation as the reason for leaving MDA.

Both the contents of the letter of resignation and the employment history are very persuasive in favour of the fact that the applicant's resignation was made in the exercise of his free will.  (The motive for the applicant moving as he did is "on our selection").  Was it because he had let the respondent down as he stated in his letter of resignation or was there something else.  He could have explained the situation and re-assured the two representatives of the respondent.  He was given the opportunity so to do.  This was not a situation where excuse was being sought to terminate the applicant's employment because of his capacity or conduct.  The evidence is to the contrary.  Both Mr Cullen and Mr Bacon were "astounded" and "perplexed" respectively at the course taken by the applicant.

When Mr Bacon asked if he were happy with this employee he responded:

"Yes, I was.  We had given him a full time position only two weeks earlier."

Mr Dawson, solicitor for the respondent re-examined Mr Bacon on the point.

"Did Mr Czuba's departure cause you any problems?"

Responding the witness said:

"Very much so. We're a very small company. Dr Czuba was working on projects which had been commenced and it was suddenly on my desk to finish them and they were projects which couldn't be halted.  So my, my own personal work load was dramatically increased in the period  through to March/April as a result."

He considered the applicant's departure very much against his interest, it would seem.

Mr Cullen, too, has had his regrets at the applicant's resignation as evidenced by what he said to the applicant:

"I am very disappointed.  this whole business has been an expensive business for MDA"

Such attitude in this regard is fortified when he says he later urged the applicant thus:

Is there nothing you want to say to me which might restore some trust?"

If Mr Cullen expected an explanation at this point he was to be disappointed.  As all that allegedly fell from the applicant was:

"I'm sorry I let you down, let's not let it affect our future relations."

Again when Mr Cullen was asked this:

"Had he given a satisfactory explanation to you about this matter would you have been happy for him to continue to work for you?"

To which he replied:

"Yes."

This witness's evidence was that the applicant was a good employee and that he would not have sacked him if he had not resigned, but would have sought legal advice as to how the matter was to be managed from there.  Really, all Mr Cullen desired was a credible explanation and the whole incident could be put aside and forgotten.  It is accepted that this is the view held by Mr Cullen as proprietor of the firm.

Mr Dawson's submission that it was not in the respondent's interest to let the applicant go, was appropriate.  The respondents had spent a good deal of money in relocation fees and subscriptions as well as training him.  Additionally, he was lightening Mr Bacon's work load.

Another meritorious submission made by Mr Dawson was as follows:

".....defies logic, that when he has just gone through the probationary period, when he could have been terminated at any time, two weeks later they would want to sack him for no reason when it is obvious a small company like them with the money they have expended and the resources they have put into getting him there, that they would want him to walk as he did."

Evidence was received at the hearing that during the months the applicant was in the respondent's employ, he repeatedly requested leave without pay over the period December 1994 to January 1995.  For good and cogent reasons related to the respondent's work commitments consent was not forthcoming.    Mr Bacon the recipient of the request gave evidence that when it was communicate to the applicant that his requests could not be accommodated, the applicant became frustrated.

Mr Dawson asked the Court to infer that this refusal of leave without pay was the reason the applicant made no attempt to explain to the respondent about his then relationship with TGA and "simply walked away with one months pay" (in lieu of notice).

As history would have it, the applicant did take leave without pay from Worksafe (his current employer) from 15 December 1995 to 6 January 1995.  Obviously the trip was very important to the applicant.  His resignation opened the door to this opportunity.

However, I am of the opinion that the evidence falls short of raising such an inference, but ought be considered as a fact and circumstance in the overall review of the applicant's behaviour in relation to his departure from MDA.

No evidence was received as to purpose of the trip - was it in aid of professional pursuits or was the applicant off on a frolic of his own.  If a mere frolic, it was a radical step to take, in light of the liability he had incurred in relation to a Saab motor vehicle.  Had the evidence been more precise in this regard - that is the purpose of the trip, it may have been possible to draw the inference Mr Dawson invites me so to do.  As it stands  I can make no specific finding on this portion of the evidence.

Solicitor for the respondent also submitted that the probabilities were that at 18 October 1994, the applicant had already been offered the position he now holds and this was one of the reasons for the applicant's obvious nonchalance during the meeting on the patio.  There is simply no evidence that this was so.  However, it is a notorious fact that in an internal memorandum from Work Safe under the signature of Dr. John Issa dated 25 October 1994 it was requested that an arrangement be made to employ the applicant for six months.  The applicants name was on a register with that organisation and he says he was called by Dr Issa on 20 October 1994 who had been told of his circumstance by somebody from TGA  Thus, by this date, offer and acceptance of the position was completed.  This memorandum was one of the documents produced under subpoena. 

At all material times, the TGA was the supervisory body of the respondent's undertaking.  In effect, the applicant was working for both, and this fact would not have been compatible with his position with MDA especially in the circumstances that the respondent had no knowledge nor had they consented to such a course.  Upon discovering the situation the two gentlemen concerned became apprehensive as well they might.  It could, if not satisfactorily explained, lead to the destruction of confidence necessary between employer and employee.  Prima facie, the applicant's relationship with two bodies was inconsistent with the confidential relationship between the applicant and respondent.

In effect, what both Messrs Cullen and Bacon allege is that the applicant's replies to them on the patio, raised in them an uneasiness which was not reassuring.  Hearing the applicant give his evidence had the same effect on me.

It would seem the applicant in his approach to the matter of his dual employment caused these two senior managers to become apprehensive, thus destroying their confidence in the applicant but not irreparably if the applicant had adequately defended his position.  No evidence fell that the applicant, in his dealings with TGA on behalf of the company or otherwise ever impeded the faithful performance of his obligations to the respondent.  What has to be found is an actual repugnance between his acts and his relationship with the respondent.  There was nothing to base such a finding.  In fact it was not put to the applicant that he breached the agreement.

What was submitted by the solicitor for the applicant was that respondent ought not have been apprehensive as they allege they were, as they were protected by the Confidentiality Agreement - that should have precluded any apprehension of the respondent's part that any information would be propagated in the manner feared.

Indeed, it was a potential protection, said Mr Glascott, and there is no reason to believe it was not.  However, one's confidence in the applicant generally is dashed by the fact he did not disclose the fact he was on leave without pay from his employer's regulatory masters.  This fact which would also be destructive of confidence so far as the Court is concerned.

Mr Glascott made the following submission on this point:

"Well, the applicant, in  my submission, gave credible evidence to the extent that he maintained adamantly that he provided that explanation and was not shaken on that in cross-examination.  He spoke quietly and that is consistent with the evidence that he was a reserved person.  He is a quiet person.  He is not demonstrative.  Not given to over-statement.  He left the employment in rather polite circumstances and having regard to his demeanour you would expect that of him.  It was not a case of him throwing paper about and yelling and shouting.  It was consistent with his character."

Then he went on to explain his client inviting Messrs Cullen and Bacon out to lunch in circumstances where he now submitts he was denied natural justice:

"probably perverse reaction but it is a reaction of someone who wants to maintain the status quo.  He is a polite person He is probably shocked by events."

That he submitted is a reasonable inference.  In the light of the other evidence to which has already been adverted, this is found to be an unreasonable inference for the Court to draw.  Just as unreasonable is the portrayal of the applicant by Mr Glascott.

In contrast to the manner in which the applicant gave his evidence the respondent's witnesses gave their testimony in a straight forward way.  They did not make any attempt to bolster their case against the applicant giving credit when credit was due.  Most importantly, these two witnesses did not assay at filling in the recollection of the other.  Overall, I was most impressed both with the manner in which they gave their evidence and their demeanour in the witness box. 

Within days of the applicant resigning from the respondent's employ he telephoned Mr Bacon asking:

"John, could you provide me with a letter to say I have been fired."

Mr Bacon replied:

Why do you want this.  It is a fairly unusual request.  I will have to discuss it with Darryl."

Dr Czuba said he would call back in a couple of days.  Upon so phoning, he was told by Mr Bacon:

Marek, we can't do that, you resigned, it doesn't seem appropriate to say you were sacked just so you can receive the dole."

The applicant indicated he needed the dole to meet commitments, yet his evidence is that he was offered his job at Worksafe as early as 25 October 1994 - 7 days after he left MDA

Dr Czuba did not refute the fact or contents of these telephone calls in his affidavit material or at all.  Mr Bacon squarely put to the applicant that during one of these calls "that you resigned, it does not seem appropriate just that you can receive dole."  One might think if the situation were as the applicant now alleges these materials would have been traversed.  They were not.

This is but another incident that leads one to a lack of confidence in what the applicant says.

Another such incident is that on 31 October 1994 (the same day as he commenced work at Worksafe), the applicant filed an application in this Court for unlawful termination of his employment seeking compensation.  Details of the compensation were:

"I was offered either to resign or be dismissed.  I took the resignation path.  I was promised verbally which was later confirmed when I rang ------ two days later.  pay up to 3 December and holiday and super.  I ask that I be paid the money in full they verbally promised.  I received a partial payment."

He never requested or was given a separation certificate from the respondent.  Had he been terminated this was a necessary step in dealing with the Commonwealth Employment Service.

Having touched on the matter of "good faith" "fealty" or what you will, the matter does not turn on that point.

What the Court has to decide is whether or not the applicant resigned or not.  A finding of resignation is possible on the extrinsic evidence, (most probative), such as the letter of resignation, the information supplied by the applicant to Worksafe and the material in the facsimile from TGA.

Apart from those matters, an exercise ought be conducted into the credit of the three witnesses who gave evidence in the proceedings.

In any case where the evidence given by the applicant and that given by the  respondent conflict I prefer that of the respondent's witnesses.

In giving his evidence, the applicant was evasive, vague, ambiguous, as Mr Dawson suggested (and I accept), he back and filled.  I reiterate I was in no way reassured by his evidence.

It is common ground that the applicant was paid four weeks in lieu of notice plus two weeks holiday pay which would have at least taken him up to 18 November 1994.  What need for the dole one might ask?

Two letters, one of 7 November and the other of 14 November 1994, were sent by the applicant making demands for payment of money.  ( and indeed  contained explanations which would more appropriately have been made on 18 October 1994).  These two documents became exhibits "D"  in the proceedings.  It is to be noted both that both are silent on the fact that the applicant had resumed employment, a pertinent fact in assessing the amount of compensation claimed.  Yet another failure to disclose.

For there to be a termination of employment under the Industrial Relations Act 1988 it must be at the initiative of the employer. However, for there to be a voluntary resignation there must be a real choice to be exercised. In the instant case, there was a choice open to the applicant to explain the extent of his involvement with his former employer of which I find he did not avail himself. It hardly meets the standard that he was told by his colleguaes at TGA to take leave of absence. I find as a fact that the applicant resiled from taking the explanation option and resigned, rather than exercise the other option open to him.

MINUTES OF ORDER

1. The termination of the employees employment did not contravene Division 3 of part IVA of the Industrial Relations Act 1988.

1. The application be dismissed.

I certify that the preceding seventeen (17) pages are a true copy of the reasons for judgement of Judicial Registrar Locke.

Associate:       Caroline Sternberg

Date:              17 May 1995

Appearances:

Solicitor for applicant:  S. Glascott

Solicitor for respondent:  T Dawson