Ronald Brown v Mirboo North and District Bush Nursing Aged Care Inc

[1995] IRCA 457

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  VI 1950 of 1995

B E T W E E N:

Ronald BROWN
Applicant

A N D

MIRBOO NORTH & DISTRICT BUSH NURSING
AGED CARE INC
              Respondent

REASONS FOR DECISION

11 September 1995  PARKINSON JR

This is an application made pursuant to S170EA of the Industrial Relations Act 1988. The applicant was employed by the Mirboo North & District Bush Nursing Aged Care Inc. The applicant is a State Enrolled Nurse and was engaged in the aged care facilities of the respondent. The applicant was initially engaged on a casual basis between 28 November 1993 and 31 May 1994. On 31 May 1994 the nature of his employment was altered from casual to temporary part-time, and permanent part-time employment was confirmed in writing on 10 October 1994.

The evidence is that the applicant was engaged for a minimum of two shifts per week, with the option to work additional shifts as offered.  The terms of the engagement do not specify the timing of those shifts, however it is apparent that the applicant regularly worked additional shifts and did weekend work which attracted a penalty rate payment.

The evidence of the applicant was that he involved himself in some workplace industrial issues, mainly on behalf of another employee, and that as a result of his involvement he says he suffered a reduction of shifts allocated to him and a reduction of his weekend work allocation. This, he said, significantly reduced his income.

These issues were raised by the applicant with the Chief Executive Officer of the respondent who responded by confirming in writing that the applicant was employed on a permanent basis on a minimum number of shifts per fortnight, and by arranging a meeting of all staff to canvass and attempt to resolve any discontent (Exhibit R5).

In or around September 1994 the applicant was informed that his brother was seriously ill in England, and that his brother had expressed the wish that the applicant return to see him. The applicant took steps to arrange this, involving as it would a necessity to seek long leave or leave of absence of some kind. It appears that the applicant had little or no accrued entitlement to annual leave. Therefore, his request was made for leave without pay. 

The applicant’s evidence was that he had a conversation with the Director of Nursing, Ms Williams, in about September 1994 wherein he informed her of the situation and indicated that he anticipated seeking extended leave without pay.  His evidence is that Ms Williams then advised him that when he was certain of the dates to inform her, and arrangements would be made.  The applicant took this as being an authorisation of the leave without pay; in short, an approval for the absence.  Ms Williams denies that this conversation took place in such terms.  Her evidence was that she recalled the conversation as being in more general terms and that she did not give approval or endorsement to any proposed leave of absence.

This conversation took place in or about September 1994. In the following weeks, the applicant perceived that relations between him and Ms Williams had deteriorated consequent upon the workplace issues discussed earlier. As a result, when he had finalised arrangements for his return to England, and had details of flights and travel dates, instead of approaching Mrs Williams he approached the Chief Executive Officer, Mrs Keel, to seek the extended leave. After consideration of the matter, the application for leave was refused. Mrs Keel’s evidence was that it was refused for the reason that the respondent  wished to set no precedent regarding leave of absence. 

The applicant was advised of this refusal by letter dated 9 November 1994 (Exhibit R6). It is appropriate to set out the contents of that letter.
It read (omitting formal parts):

“I refer to our recent conversation where you intimated that you
           would be going overseas in the near future and (sic) clarification
           of your position at Grandridge Lodge.

Unfortunately this type of leave of absence does not come within
           the scope of the award and as you would appreciate I must
           conform with the award.”

There is no evidence to contradict the assertion of Mrs Keel in the letter of 9 November 1994 that there is no provision in the award for extended leave. I am not informed as to the contents of the applicable federal award. It seems, however, to have been concluded by the respondent and its advisers that there was an implicit prohibition against according extended leave as a result of the award making no express provision for extended leave without pay. This interpretation of the respondent’s obligations is clear from the terms of the letter of 9 November 1994 refusing the applicant’s request for leave without pay or extended leave.

As a consequence of this letter the applicant, having made the arrangements to travel overseas, was left in a difficult position.  The respondent’s refusal, he submits, left him with no option but to resign his employment.  His evidence was that he was told by Mrs Keel that his only option was to resign and then reapply for employment when he returned.  This advice was given to the applicant before he wrote the letter of resignation.

The applicant wrote a formal letter of resignation on 14 November 1994 (Exhibit R1). The letter informed the respondent of the resignation effective at the expiration of two weeks notice. He delivered this letter to the respondent, and as a consequence the usual administrative processes were put into effect. Various documents were generated and there is no evidence that the applicant participated in these processes involuntarily, or with protest.

Whilst the decision of the hospital not to grant the requested leave was in my view a harsh and unreasonable one, I am not satisfied on the evidence before me that it was one motivated by the industrial complaints made by the applicant in the relevant period. The evidence established an extensive consultative process existing in the workplace, and there was no evidence, or even suggestion, that the Chief Executive Officer was motivated in her decision not to grant leave by such matters.  I accept her evidence as to the reason for the refusal being for precedent considerations. Had the refusal to grant the time off been established as being tied in some way to punishing the applicant for his complaints, the termination of the employment may well have been said to have been brought about at the initiative of the employer, and thus within the jurisdiction of this court.

Further, I am not satisfied on balance that the applicant had earlier been told by Ms Williams that he would be granted such leave of absence.  The applicant’s evidence put this conversation as highly as constituting a representation of a sort.  However, the evidence is that there were no details provided at that stage of the dates of leave or return, nor had any firm arrangements been proposed.  I think it unlikely that Ms Williams would have given her unqualified imprimatur to extended leave without consultation with the Chief Executive Officer, and in the absence of some certainty of arrangements.

Counsel for the applicant submitted that because in this circumstance the resignation was brought about as a result of a refusal by the respondent to grant necessary leave, there was a termination at the initiative of the employer, and that the conduct of the respondent initiated the termination of the employment. Reference in this regard was made to the decision of Moore J in Grout v Gunnedah Shire Council (1994) 125 ALR 355, and in particular to the passage extracted at page 372. In that case his Honour decided that there had been a termination of the employment in circumstances where the applicant had in distress resigned, and where the respondent refused a request by the applicant to withdraw the resignation prior to it being effective. This was also in the context of a finding that the purported “resignation” had not been clear and unequivocal. This is not the situation in the present matter. There was never any request to withdraw the resignation made by the applicant at any time, and certainly not prior to the expiration of the notice period given. The resignation occurred, was effective and was implemented, and, as discussed earlier herein, all of this took place without any apparent protest on the part of the applicant. No steps were taken by the applicant at the time or subsequently to contest the necessity to resign or to canvass the decision of Mrs Keel, either with her directly or with members of the board of the hospital with whom the applicant was familiar. The applicant left the workplace and did not return until some three months after the date of termination. There was no contact made by the applicant with the respondent, even upon his return from England.

The evidence was that the applicant arrived back in Australia on 6 February 1995.  The applicant did not arrange to meet with the respondent until 8 March 1995.  Further, the evidence established that the applicant only returned to the workplace as a result of being told by his solicitors that he should go and ask for his job back prior to instituting proceedings. The evidence was that whilst the applicant did ask to be given his job back, at no time was it ever put that there was any attempt or conduct which constituted a withdrawal of the resignation. 

Whilst I am in no doubt that there was an extremely unkind and inflexible approach adopted by the employer apparently on the advice of its industrial advisers, this is not of itself conduct which would constitute a constructive dismissal, or, if the phrase mean something different or more all encompassing, a termination of the employment at the initiative of the employer. This is not a circumstance where there were contractual or other entitlements in the applicant to the leave which, in their breach by the respondent, would entitle the applicant to treat the contract as having been terminated by the respondent and thus a constructive dismissal having occurred.

I am satisfied that the applicant resigned from his employment and that in the circumstances the resignation was voluntary and that the termination of the employment did not arise from a constructive dismissal. In this matter I am satisfied that there has not been a termination of the employment of the applicant at the initiative of the employer of the type contemplated by the operation of Sl70EA of the Industrial Relations Act 1988.

In this decision it is appropriate to refer to one other aspect of the proceedings. Had I found that there was a termination of employment of the type contemplated by S170EA of the Act, it would have been necessary for the applicant, pursuant to S170EA(3), to seek leave to bring the application out of time. The administrative documents generated at the time of the termination of the employment (Exhibits R2 and R11) in my view constituted written notice of termination of employment. In these circumstances I would not have granted leave to the applicant because this is a case where a significant period of time has expired between the date of any termination of employment and the date of the application being made. That period is approximately three months, or 96 days. Further no steps were taken, nor was any indication given, by the applicant to the respondent during that entire period as to dispute with or dissatisfaction with the course the events had taken, and there were no other circumstances identified which, despite these matters, would support time being extended.

For the reasons set out in this decision the application is dismissed.

I certify that this and the preceding seven (7) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:   11 September 1995

Solicitors for the applicant:  Simon Parsons & Co
Solicitor appearing for the applicant:  Mr J Murphy

Solicitors for the respondent:  Phillips Fox
Counsel appearing for the respondent:  Mr A Lindeman

Date of hearing:  31 August 1995

Date of judgment:  11 September 1995

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  VI 1950 of 1995

B E T W E E N:

Ronald BROWN
Applicant

A N D

MIRBOO NORTH & DISTRICT BUSH NURSING
AGED CARE INC
              Respondent

MINUTES OF ORDERS

11 September 1995  PARKINSON JR

THE COURT ORDERS THAT:

1. The application be dismissed.

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

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - whether RESIGNATION or CONSTRUCTIVE DISMISSAL - employee’s request for leave of absence or leave without pay to visit ill relative residing overseas refused

PRACTICE AND PROCEDURE - NOTICE OF TERMINATION - application for extension of time in which to file application

Industrial Relations Act 1988, ss. 170EA(3)

Grout v Gunnedah Shire Council (1994) 125 ALR 355

RONALD BROWN v MIRBOO NORTH & DISTRICT BUSH NURSING AGED CARE INC
VI 1950 of 1995

Before:       PARKINSON JR
Place:         MELBOURNE
Date:          11 SEPTEMBER 1995