Martin Richard Carey v Defiance Corporate Pty Ltd

[1995] IRCA 484

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT -  CLAIM OF UNLAWFUL TERMINATION  -    RESIGNATION  -  WHETHER CONSTRUCTIVE DISMISSAL

INDUSTRIAL RELATIONS ACT  1988 , ss170EA

MARTIN RICHARD CAREY v DEFIANCE CORPORATE PTY LTD

No.  QI95/1106

BEFORE:   BOULTON JR

PLACE:     BRISBANE

DATE        4  AUGUST 1995

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )                    No.  QI  95/1106
QUEENSLAND DISTRICT REGISTRY

BETWEEN:                 MARTIN RICHARD CAREY

Applicant

AND:  DEFIANCE CORPORATE PTY LTD

Respondent

MINUTE OF ORDERS

CORAM:            BOULTON JR

PLACE:             BRISBANE

DATE:                4 AUGUST         1995

THE COURT ORDERS THAT:

1.      The application be dismissed.

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

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )       No.  QI 95/1106
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  MARTIN  RICHARD  CAREY  

Applicant

AND:  DEFIANCE  CORPORATE   PTY  LTD                  

Respondent

BEFORE            BOULTON JR

PLACE:             BRISBANE

DATE:                4  AUGUST  1995       

REASONS FOR JUDGMENT

The applicant is a 46-year-old chartered accountant who lives and works in Toowoomba, Queensland.  The respondent operates flour mills and bakeries.  From August 1991, the applicant was employed by the respondent, his primary role being in internal audit procedures and internal controls relating to those mills and bakeries.

In 1993, management determined that certain corporate functions then being conducted in Toowoomba would be transferred to Brisbane.  These included the Internal Audit Division (the applicant's division).  Staff, including the applicant, were notified of this decision.  It was not then stated that any staff member had to relocate within any stipulated period.

Tragically, the applicant's eldest son was diagnosed with cancer in September 1993.  His treatment in Brisbane involved the applicant in frequent travel there.  The respondent was very accommodating, allowing the applicant to take time off and to use premises owned by the respondent in Brisbane from time to time for accommodation when the applicant travelled there for his son's treatment.

The applicant gave evidence that he reached an agreement with the respondent that he could move from Toowoomba to Brisbane after the end of the 1994 school year.  At no time did he ever give any indication to his employer that he was not going to move to Brisbane.  Prior to September 1994, he decided to seek other employment which would allow him to remain in Toowoomba.  Unbeknown to the respondent, he applied for other positions, and was successful in gaining one with a Toowoomba firm of accountants, as audit manager.

After the applicant learned he had secured new employment, by letter dated 13 September 1994 he wrote to his superior, a Mr Trute, giving notice of resignation from his employment with the respondent.  That letter (exhibit A2) referred, inter alia, to the traumatic time his family was going through, that a move to Brisbane was not in its best interests at that time given the support available from friends in Toowoomba, and there being no guarantee his wife could get a transfer of her choice in her job.

The applicant's resignation took effect from close of business on 7 October 1994.  He took up his new employment on 10 October 1994.  At trial, he was still so employed, earning a few hundred dollars more in base salary than he was with the respondent.

The applicant, who appeared before me unrepresented, put his case as one of constructive dismissal, the basis being that his employer had not ever offered him any alternatives to leaving Toowoomba.  The decision to relocate, he submitted, forced him to resign.  It will be recalled that not only had the applicant agreed to move to Brisbane after the end of the 1994 school year, he did not ever indicate to his employer his unhappiness at having to move.  In cross-examination, it emerged that the substance of his complaint was his employer's failure, after it received his letter of resignation, to approach him with alternatives to the Brisbane move.

The undisputed evidence is that the applicant secured new employment without informing the respondent that he was seeking another job.  It is clear also that the applicant did not give his employer the opportunity to discuss other options with him, before he sought and gained another job, and resigned.  The pressure which he said in evidence he felt not to raise his reluctance to move was not, in my view, brought about by anything for which his employer ought to be held responsible.  He himself told me his employer was a good and caring one.

I consider that the applicant now regrets proceeding in the way he did.  This regret may be linked to his having heard of redundancy packages having allegedly been paid by the respondent to employees who would not move.  The applicant is obviously disappointed his employer did not react to his resignation by trying to talk him out of it, or offering him alternatives (to the move to Brisbane).  In this attitude he puts a premium on his employer, without help from him, divining his concern about having to relocate.

In the light of these circumstances, I conclude that there was nothing in the respondent's conduct which was such as to make the applicant feel obliged to resign.  There was no constructive dismissal, and consequently no termination of the applicant's employment at the initiative of his employer.

I should add that the applicant did not file his application in this Court until 6 April 1995, almost 6 months after his resignation from the respondent's employment took effect.  The respondent, however, appeared to be content to contest the application on its merits.  Without developed submissions directed to me about whether or not time for filing the application ought to be extended, I have proceeded to deal with the matter on its merits, as if the date of filing were not an issue.

The order I make is that the application be dismissed.

I certify that this and the preceding __________ (    ) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  4  August  1995  

Appearing for the Applicant:           In person

Appearing for the Respondent:                 Mr Coonan

Date of hearing:  20  July  1995

Date of judgment:  4  August  1995