Mr Mike Udorly v Eastern Health
[2012] FWA 8961
•22 OCTOBER 2012
[2012] FWA 8961 |
|
DECISION |
Fair Work Act 2009
s.394—Application for unfair dismissal remedy
Mr Mike Udorly
v
Eastern Health
(U2011/9210)
DEPUTY PRESIDENT SMITH | MELBOURNE, 22 OCTOBER 2012 |
s.394; resignation or termination?
[1] Mr Mike Udorly believes that he was unfairly dismissed from his employment with Eastern Health. Mr Udorly was employed on 12 July 2010 and believes that his employment was terminated on 9 June 2011. Eastern Health, in its response to the application, argue that Mr Udorly resigned his employment and therefore there was no termination at the initiative of the employer. Without expressing a view on the merits of the matter, Ives DP extended time in which to lodge his application. 1
[2] Mr Udorly was employed as a Case Manager/Clinician in the Mobile Adolescent Team at the Wundeela Centre in East Ringwood. The team that he was assigned to provides psychiatric case management to clients who have high risk behaviours and complex mental health needs. He was in a graduate role given his lack of experience in the area.
[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.” 2
[4] It is argued by the Eastern Health that:
● After three months employment his manager, Mr B. Prater raised performance issues with Mr Udorly.
● On 14 December 2010 Mr Prater and a person from Human Resources met with Mr Udorly to discuss his performance. On 15 December 2010 Mr Udorly’s supervisor wrote to him 3 raising the performance concerns and placing him on a four week performance improvement plan commencing Monday 20 December 2010.
● On 17 December 2010 Mr Udorly was given his formal performance feedback. 4
● Mr Udorly did not accept the performance issues raised by his manager and whilst Mr Prater and the representative from human resources were explaining the process of performance review, Mr Prater had to ask Mr Udorly to stop calling him dishonest.
● Further unacceptable conduct was brought to the attention of Mr Prater on 24 December 2010. 5
● In January 2011 concern was expressed to Mr Udorly about the use of his electronic diary which is necessary given the clients and the need for accurate records.
● On 10 February 2011 Mr Prater wrote to Mr Udorly stating that he continued to have concerns about his work performance.
● On 3 March 2011 a meeting was held at which there is a complete difference of view as to what was said. Mr Prater thought the meeting was productive and Mr Udorly accused Mr Prater of asking him (Mr Udorly) why he hadn’t quit. This was denied by Mr Prater.
● Again in early March 2011 there were two written complaints from EastCare about Mr Udorly’s handling of client. It was also stated the Mr Udorly confronted the person who complained. On 18 March a meeting was held with Mr Udorly, his union representative and Mr Prater’s manager to discuss the complaint.
● Complaints had been received from two parents indicating that Mr Udorly’s performance was not acceptable to them.
● On 7 April Mr Prater attended a meeting with Mr Udorly and a staff psychiatrist to provide feedback to Mr Udorly in relation to his interaction with female members of staff.
[5] Mr Udorly argued that:
● He was the subject of aggressive and unreasonable behaviours from his manager Mr Prater. The behaviours were said to be repeated and hurtful remarks.
● Criticisms were blown out of proportion.
● False allegations were made.
● Training was denied.
● He experienced mind-games, ganging up and was treated with dishonesty.
● He was daily intimidated at work, threatened with dismissal and unreasonable warnings were issued.
● He was humiliated and harassed a number of times.
● Harassing phone calls were made to his home when he was on sick leave as a result of him becoming psychologically, mentally and physically unwell.
[6] It is clear that Mr Udorly was deeply upset by the performance review process and strongly believed that he was being bullied by his supervisor, Mr B. Prater. It is to those matters that I now turn.
[7] To begin, it is important to appreciate that when faced with a claim that a person has been constructively dismissed, the Tribunal must adopt an objective analysis. So much is evident from the decision in P. O’Meara v Stanley Works Pty Ltd. 6
“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”
[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, 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. 7 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.
DEPUTY PRESIDENT
Appearances:
M. Udorly the applicant.
N. Harrington of Counsel on behalf of Eastern Health.
Hearing details:
2012.
Melbourne:
March, 8.
1 PR516235
2 Exhibit H2
3 Statement of Billy Prater, Attachment BP5 and BP8
4 Ibid Attachment BP7
5 Ibid at paragraph 38—40
6 [2011] FWAFB 6265
7 Exhibit H1, attachment RH3
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