Mike Udorly v Eastern Health
[2013] FWCFB 2483
•23 APRIL 2013
[2013] FWCFB 2483 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Eastern Health
(C2012/5939)
VICE PRESIDENT LAWLER | SYDNEY, 23 APRIL 2013 |
Appeal - unfair dismissal - case turning on its own facts
[1] This is an application for permission to appeal and, if permission is granted, an appeal against a decision of Commissioner Smith ([2012] FWA 8961) dismissing the Appellant’s application for an unfair dismissal remedy. The Appellant was employed on 12 July 2010 and contends that his employment was terminated on 9 July 2011. Eastern Health took a jurisdictional objection, namely, that there was no dismissal at the initiative of the employer. A dismissal at the initiative of the employer is a jurisdiction prerequisite to the grant of an unfair dismissal remedy.
[2] Since this is an appeal from an unfair dismissal decision, s.400 of the Fair Work Act 2009 applies and the Full Bench must refuse permission to appeal unless it is satisfied that it is in the public interest to grant permission to appeal and further, to the extent that the appeal is based upon a contention that there was an error of fact, that error must be a significant error of fact.
[3] Mr Udorly had complained that he was subject to persistent bullying and discrimination from persons in Eastern Health including, in particular, his manager, Mr Prater. Eastern Health investigated those allegations of bullying and concluded that the allegations were not substantiated. Paragraph 3 of the Deputy President’s decision sets out what then occurred:
“[3] On 9 June 2011, Mr Udorly wrote a four page typed letter stating that it was no longer possible for him to continue in employment. He recounted his concerns and under the heading “Resignation” stated:
“In the given circumstances, it is no longer possible for me to continue in my current position, so I have no option than to leave my employment. I remain utterly disappointed by the level of dishonesty, primitively, insensitivity, inconsistency, insincerity, non-transparency, ill-intent purpose, shonky cosmetic attitude, unscrupulous tiny-winy scrutiny, lack of genuineness, lack of straightforwardness, unhealthy competition, unhealthy prejudice, innuendo, discrimination, superiority complex, destructive humiliation, deliberate demonization and heart-rending threats which characterized the way I was particularly targeted and treated at work in Eastern Health which continually left me disrespected, humiliated, discriminated, bullied and ill. These circumstances which remained unaddressed have now forced me to resign my position at Easter[n] Health wef today being 9/6/11.
I believe that I am not voluntarily leaving my position, and I am being forced to leave my position. Therefore I’m not required to give notice because the termination of my employment is at your initiative. As my employment with Eastern Health is now at an end, my entitlement is now due and payable.
Prior to joining Eastern Health, I have served in a number of reputable government and community services agencies. I have always liked organizations that I serve. I have made friends and met a lot of good people while working at Eastern Health. But once again I regret to state that I am disappointed by the manner in which I was treated by Eastern Health.
Certainly, I will miss my clients. I have reasonably achieved a therapeutic engagement depth with most. I feel sad and sorry should this decision have any distracting effect in any shape or form, but it shall remain as I believe an egress that would not go unrecognised. From the abysmal sect of my heart, I thank Eastern Health for giving me the opportunity to serve. May God bless you.” ”
[4] Mr Udorly’s contention was one of constructive dismissal. That was recognised by the Deputy President who adverted to the relevant principles that govern constructive dismissal.
[5] The Deputy President stated:
“[8] With great respect to Mr Udorly, whilst I appreciate his depth of feeling, this is not a matter which must be assessed through his eyes, [but] by objectively having regard to the evidence.
[9] In relation to his allegation of bullying, this was thoroughly examined by Eastern Health. Mr Udorly made a six page comprehensive complaint to the Director of Human Resources. The evidence of the Director of Human Resources, Ms R. Hull was that the complaint was not substantiated, although it is unclear if this was finally conveyed to Mr Udorly as there was difficulties in delivering the letter and the timing of the letter and the planned meeting to discuss the letter coincided with a period of sick leave on 6, 7 and 8 June 2011.
[10] In large measure this allegation of bullying was tied to the efforts by Mr Prater and Eastern Health to manage the performance of Mr Udorly. I am unable to find, on an examination of the performance review process, that Eastern Health either:
- wanted to bring about the termination of employment of Mr Udorly, or
- was unreasonable is its processes and the matters of concern to them.
[11] On 9 June 2011 Mr Udorly attended the Peter James Centre at Eastern Health and asked to meet with Ms Hull. Mr Udorly was advised that the investigation into the bullying found that the allegations were not substantiated. Mr Udorly stated that he disagreed with the findings and then handed his resignation letter to Ms Hull. It was the evidence of Ms Hull that she asked him to reconsider and that Eastern Health would support him through the performance review process. It was the evidence of Ms Hull that Mr Udorly stated that he had thought about it and he wanted to leave.
[12] The letter handed to Ms Hull was a considered letter not hastily written. This is not a case where an action was taken in the heat of the moment.
[13] Section 386 (1) provides:
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.’
[14] Against the background of the submissions and evidence I am unable to conclude that Mr Udorly was forced to resign because of conduct, or a course of conduct, engaged in by Eastern Health. It follows that I find that Mr Udorly was not dismissed from his employment by Eastern Health and the jurisdiction of the Tribunal under Part 3-2 of Chapter 3 of the Fair Work Act 2009 is not enlivened.”
(underline emphasis added)
[6] The emphasised findings are incompatible with a termination on the employer’s initiative or with Mr Udorly being forced to resign because of conduct, or a course of conduct, engaged in by his employer.
[7] This is a case where the Deputy President was confronted with sharply conflicting oral evidence. Ms Hull and Mr Thornton gave evidence that they sought to counsel Mr Udorly against the rashness of resigning and invited him not to do so but that he insisted that his resignation should be accepted. Mr Udorly denied that any such things were said.
[8] This is a classic circumstance of a finding of fact based upon an assessment of the evidence of witnesses given in the witness box. This appeal bench is prevented from interfering unless error is established in accordance with the principles summarised by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his (or her) advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.”
(footnotes omitted)
[9] Mr Udorly has not identified any proper basis before us to interfere with the Deputy President’s findings. We are not satisfied that the relevant findings are glaringly improbable or involved misuse of the advantage that the Deputy President had in seeing the witnesses give their evidence, nor are they findings that are inconsistent with other facts incontrovertibly found or with contemporaneous documents to which weight should be accorded. Accordingly, there is no arguable case of error on the part of the Deputy President in the critical findings that he made in paragraphs 11, 12 and 14, which findings caused the Deputy President to reject the Appellant’s contention of constructive dismissal.
[10] We are not satisfied that the Appellant has established either an arguable case of error on the part of the Deputy President or an arguable case that a grant of permission to appeal is in the public interest and accordingly we are obliged by s.400 to refuse permission to appeal and we do so. The appeal is dismissed.
VICE PRESIDENT
Appearances:
M Udorly on his own behalf.
Hearing details:
2012.
Melbourne:
February 12.
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