Sammer, Josef Lang v Christmas Island Resort Pty Ltd

[1997] FCA 1518

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QI 1078  of   1996

BETWEEN:	JOSEF SAMMER Applicant
AND:	CHRISTMAS ISLAND RESORT PTY LTD Respondent
JUDGE:		SPENDER J
DATE OF ORDER:		9 DECEMBER 1997
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QI 1078 of 1996

BETWEEN:	JOSEF LANG SAMMER Applicant
AND:	CHRISTMAS ISLAND RESORT PTY LTD Respondent

JUDGE:	SPENDER J
DATE:	9 DECEMBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT

This is a review pursuant to s 377 of what is now the Workplace Relations Act 1996 (Cth), of a decision by a Judicial Registrar dismissing an application by Mr Josef Sammer, which originally sought reinstatement or, alternatively, compensation in respect of the termination of his employment by Christmas Island Resort Pty Ltd (‘Christmas Island’).

Mr Sammer was employed by the respondent as its Rooms Division Manager at the resort on Christmas Island in the Indian Ocean.  He took up his employment in early October 1995, the evidence suggesting that the date of his arrival was 5 October 1995. Mr Sammer claims that he was constructively dismissed by the General Manager, Mr Farrow, who allegedly prepared a letter of resignation for Mr Sammer to sign.

It is not in dispute that Mr Sammer signed a letter of resignation dated 31 October 1995, which is Exhibit 6 in the proceedings before me.  I had originally thought that the issue concerning the circumstances of the production of that letter was the most central question on this application but, on further reflection, it seems to me that that is not the case.

Mr Sammer claims, in essence, that he was forced to sign the letter of resignation.  However, on any view of the matter, it is clear that on 31 October 1995, Mr Sammer effectively told Mr Farrow that he could not stand the position any more and that he was resigning.  When this was announced, according to Mr Sammer, Mr Farrow allegedly said, "Just do it.  Do it now."

Mr Farrow's evidence is different: he indicated that he was unwilling and did not wish for Mr Sammer to resign.  There is, of course, the clearest of conflicts in the versions of what occurred between Mr Farrow and Mr Sammer on 31 October 1995.  I will deal with that inconsistency in some detail later in these reasons.  Notwithstanding the conflict in the two accounts, it is plain, even on Mr Sammer's account, that he announced to Mr Farrow his intention to resign and the reasons for it.

The position is that, even if one accepts the many matters of complaint and criticism by Mr Sammer, this is not, on analysis, a case of constructive dismissal.  At best for Mr Sammer, it seems to me that his employer on Christmas Island was in serious breach of its contractual obligations to him.  His claim is not a claim for constructive dismissal but, if anything, would be for breach of contract of employment and for damages for those breaches.

I have considerable sympathy for Mr Sammer and for the circumstances in which he found himself.  The material before me shows that he is multi-lingual and the two references in evidence, one from Hyatt Bumi Surabeya concerning Mr Sammer's employment for a period of three years in Indonesia, and one from Scandic Crown Hotel, where he was General Manager of an apartment hotel for a period of more than three years during which he received the Best Customer Service Award; and under his management, the hotel was rated the best hotel in Scandinavia.

That evidence seems to suggest that he has had not only many years experience in the hotel industry, but considerable ability in that area as well.

I accept that his experience with Casino Austria Pty Ltd on Christmas Island has had very serious consequences to him, both in respect of his health, his family, and for his job prospects subsequent to his experience there.  However, even on a view most favourable to Mr Sammer, this is not a case where, either constructively or in fact, the employment relationship was terminated by the employer.  Rather, Mr Sammer's complaints and criticisms of the performance of his employer at Christmas Island amount to allegations of breaches of the contract of employment.  Such were those breaches that Mr Sammer felt that he could do nothing but resign.  That circumstance, in my opinion, does not amount to constructive dismissal.

I do not think that the facts can be tortured so as to permit a finding that the circumstances were deliberately created by his employer so as to force him into the resignation which he signed on 31 October 1995.

There are a number of facts arising out of the short time that Mr Lang Sammer was on Christmas Island which ground the view that the employer had been less than frank in its dealings with Mr Sammer.  The accommodation in which he was obliged to reside, on any view, was very unsatisfactory.  Even Mr Tan, the Company Secretary of Casinos Austria International Ltd, had to concede that the accommodation was very basic, and the evidence shows that it was quite unsatisfactory.

So far as the office accommodation is concerned, and also in respect of the complaints of being told by Mr Kuiper to perform menial tasks, my view is that Mr Sammer exhibited a real consciousness of status in these matters.  In relation to his complaints of being called "pussy" and "homo" by Mr Kuiper, his reaction was, in my opinion, exaggerated.  His sensitivity to these insults, while understandable, does not, justify the conclusion that his employment was rendered intolerable.

In these difficult circumstances, I prefer Mr Farrow's account of what occurred on the morning of 31 October 1995.  I think it likely that Mr Sammer came to Mr Farrow on the morning of that day, and said to him, "I've had enough.  I can't work with Mr Kuiper, and I am resigning."  I do not think that that is disputed by Mr Lang Sammer.  According to Mr Farrow, he said that he did not want Mr Sammer to resign, and that he arranged for both Mr Sammer and Mr Kuiper to come to the office to discuss the matter.  I think it likely that during that conversation Mr Sammer complained that Kuiper had called him, amongst other things, "a pussy".

I think it further likely that Mr Sammer asked Mr Farrow what he was going to do about it, and I accept that Mr Farrow told him he was not going to do anything about it.  I think that that was said because Mr Farrow did not see it as his role to resolve these questions of conflict between two senior managers, and that was a matter that ought to be sensibly and professionally resolved by them.

I accept that the conduct of which Mr Sammer complained was unprofessional, but I fully understand why Mr Farrow could say that it was not a matter that he wanted to be involved in.  I think it likely, in those circumstances, when Mr Farrow said that he was not going to do anything about the insults that Mr Kuiper had been using, that Mr Sammer repeated his intention to resign, and some time later, he returned with a letter of resignation.  I accept that Mr Farrow did not prepare that letter.  As a matter of preference of the two accounts, that is my conclusion.

I say that not only because of the greater probability of events occurring as Mr Farrow indicated but, in my assessment of Mr Sammer, his view of the failure by Mr Farrow to undertake to do something about the insults from Mr Kuiper was such that he, conscious of his own status, felt that he had no other alternative but to resign.

I am further comforted by the terms of the letter of resignation.  That letter, on analysis of its contents, is more consistent with its preparation by Mr Sammer than by Mr Farrow.  The letter commences, "Dear Sir".  I do not think if Mr Farrow had prepared this letter for signature by Mr Sammer, it would have commenced that way.  It is more likely that that form of appellation emanates from Mr Sammer's attitude to his general manager.  The letter continues:

I formally submit my resignation from Christmas Island Resort.  My final day of employment will be 31 October.  I would like to fly out from the island as soon as possible.

Each of those sentences, in my opinion, is consistent with my view of Mr Sammer's manner of expression, and of his method of construction.  The letter continues, "Regards," and then over a handwritten signature of Mr Sammer, the words, “Joseph Lang Sammer, Rooms Division Manager”.

I think it most unlikely that, if this letter were to be a formal letter of resignation prepared by Mr Farrow, it would have ended with the word, "Regards". It is also unlikely, in my view, that a letter of resignation prepared in advance by Mr Farrow would contain the statement, "I would like to fly out from the island as soon as possible", nor is it likely that the letter of resignation would be addressed, "Dear Sir", and conclude "Regards".  The contents of the letter, in my opinion, suggest that it was composed by Mr Sammer.  It was in response to what Mr Sammer I regarded as the final straw of dissatisfaction with his employment on Christmas Island.

However, contrary to my initial view, it is not because I prefer the view that this letter was prepared by Mr Sammer that I have reached the conclusion that the requirement of s 170EA(1) of the Act that there be a termination of employment at the initiative of the employer, has not been made out.  It is that Mr Sammer made it plain on 31 October 1995 that he was resigning, in response to criticisms which he genuinely entertained about his personal accommodation, and in response to the treatment by Mr Kuiper of him, and to what he, conscious of his status, perceived as the humiliation of being asked to do what he regarded as menial tasks.

It was therefore, in my opinion, a resignation after default by the employer in aspects of what Mr Sammer was entitled to expect, but the circumstances do not amount, in my opinion, to constructive dismissal.  The remedy for Mr Sammer, if there is any, certainly is not under what was the Industrial Relations Act 1988.

It is a pity the unfortunate experience of Mr Sammer on Christmas Island has had such serious consequences for him.  It is my hope that he put it behind him.  With his history and abilities, it seems to me there is no reason why he might not resume a useful position in the hospitality industry.

However, in my opinion, on the findings that I have made, Mr Sammer is not entitled to a remedy for the termination of his employment.  I am satisfied that there was no constructive dismissal by the employer: Mr Sammer felt his employment could not continue and chose to bring that employment to an end by his resignation.

For these reasons, the application is dismissed.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender

Associate:

Dated:            9 December 1997

The applicant appeared in person.
Counsel for the Respondent:	Mr S P Kenner
Solicitor for the Respondent:	Mallesons Stephen Jaques, Perth WA
Date of Hearing:	9 December 1997
Date of Judgment:	9 December 1997