Sharron Ward and Air New Zealand

[1996] IRCA 19

DECISION NO:   19/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

Matter no  NI95/3139

B e t w e e n

SHARRON WARD
  Applicant

A n d

AIR NEW ZEALAND
  Respondent

REASONS FOR DECISION DELIVERED EX TEMPORE

By application dated 3 August 1995 the applicant Sharron Ward sought restatement to her position of Duty Manager with the respondent.  In her evidence in chief the applicant stated she had been employed by the respondent for some 7 years.  As such the applicant reported in the first instance to John Arnold who then reported to John Roach.  In December of 1994 the applicant suffered skin rashes, facial pigmentation and loss of vision.  A medical certificate provided to her employer stated the applicant was suffering stress and she had approximately 5 weeks sick leave. It was not apparently suggested by the employer that worker’s compensation.

At the end of the sick leave towards the end of January the applicant had discussions with  Sue Cadet the Human Resources Manager of the respondent regarding  issues of concern involving her employment.  The applicant to the court used words to the effect:

“I detailed the problems to Sue Cadet - the attitude of some staff to myrecent sick leave and the prevailing circumstances.”

The applicant stated she could not recall if John Arnold as discussed with Sue Cadet.  It was the evidence of the applicant that Sue Cadet told her she sent an urgent Email to John Roach and also indicated John Arnold was made aware of the applicant’s problems.  The applicant stated Sue Cadet came to her a week or so later and in a 2 hour meeting the issues of staff shortages, communication problems between duty managers and John Arnold and the problems the applicant was experiencing with Janis Jenkins.  Ms Cadet suggested the applicant should meet with her other duty manager and with John Roach and discuss matters.  The court heard Ms Cadet has since been promoted and her position taken by Ms Vanessa Lynam.

In her evidence to the court the applicant stated the problems between the three duty managers were dealt with as they occurred. In cross examination the applicant stated that in February she sorted out her difficulties with Janis Jenkins

In early 1995 the duty managers were criticised by memo dated 7 February 1995 by John Arnold.  Exhibit 3 was the response of the three duty managers Jim Sheedy, Janis Jenkins and the applicant.  The main thrust of the memo details staff leave and seems only to deal with a specific period.  It was the evidence of the applicant that after that the three duty managers had talks with John Roach who indicated he would speak with Ms Cadet and John Arnold.

Exhibit 4 was a letter dated 27 February 1995 from John Arnold to the applicant that stated inter alia

“I have spoken to John Roach and Sue Cadet concerning the issues raised by you at John’s meeting on Friday 24 February.  Naturally I am concerned at the nature of the issues, not only as a manager but as a person.  The issues raised included:

*         Inconsistent approach

*         Not a strong leader

*         Lack of communication

*         Autocratic

*         Does not listen

*         Not a team approach....

We will set time aside to discuss these issues to that an understanding can be reached,  from which I know we can build a team effort....

Regards

signed

John Roach.

Subsequently it was the evidence of the applicant that she met with John Arnold and it was agreed that regular staff meetings would take place to resolve difficulties.  The applicant took further leave for stress in May of 1995.

On 19 May 1995  the applicant had a further meeting with John Arnold and then another with the Human Resources Manager on 26 May 1995 and John Arnold.  At that meeting John Arnold stated it would take time to solve al problems and in mid-June John Arnold told the applicant he had asked the consultant Nigel Watts’ advice.  John Arnold allegedly suggested the applicant have counselling in relation to her problems to which the applicant she had taken up yoga to relieve her stress.  The applicant agreed at that meeting the employer gave her an opportunity to air her grievances.

In cross examination the applicant heard of a further meeting that took place on 16 June 1995 wherein all duty managers were invited to put their views.  The applicant raised her concerns regarding flight coupons.  John Arnold was present and asked if there was anything more to discuss.  The applicant stated she added nothing further.  The applicant agreed she had raised and ventilated all matters of concern.  It was then however the evidence of the applicant that she shortly thereafter stated to Vanessa Lynam that she did not think the meeting achieved much but that it was a positive step.

In cross examination the applicant agreed that at that meeting she said very little and reasoned that the basis for that that the meeting was more a general staff meeting.

On 2 July 1995 the airport sustained a bomb scare and an airport blockade.

It was the evidence of the applicant during the day of 5 July 1995 she determined to resign her employment with the respondent.  In cross examination the applicant stated she contacted her union in order to find out how much notice she should give to her employer. She attempted to telephone Vanessa Lynam in order to discuss matters but could not get through to her.

She discussed the matter of her resignation with the other duty manager Jim Sheedie and sought his advice as to the length of time she should give as notice.

On 5 July 1995 it was the evidence of the applicant that she gave notice.  That was done by exhibit 1 that simply stated

“Dear John

I wish to tender my resignation effective 19 July 1995.

Yours sincerely

Sharron Ward”

In cross examination the applicant stated she first wrote a lengthy letter and then decided against it.

A conversation ensued wherein John Arnold indicated the fact of the applicant’s resignation to use the words of the applicant

“Had to be negotiated”

to which the applicant allegedly replied:

“I don’t think it is.”

In the re-examination of the applicant the court heard of a problem the applicant had with John Arnold and his style of management.  That problem was not referred to in the evidence of the applicant regarding the discussions she had with Sue Cadet in January of 1995.  Exhibit 3 being the response of the three duty managers does not refer specifically to the fact that the staff shortages were chronic nor does it refer to any abrasive non-communicative style of management of Mr Arnold.

There was no evidence from the applicant that a specific event or encounter lead to the submitting of the letter of resignation, but I formed the view that several things went badly for the applicant on that day and she stated she found she was not able to be every where at once.  However that impression was not communicated to the respondent at the time.

It was the evidence of the applicant that on 7 July 1997 John Arnold wished to discuss her resignation in the general office where other people were moving about and that the matters of staff shortages and lack of communication were responsible issues.  The applicant stated she told John Arnold she could not see any changes occurring in relation to her complaints.  During the following week the applicant stated John Arnold said words to the effect to her;

“You are going to miss this”

to which the applicant allegedly responded

“Yes”

In cross examination the applicant agreed she knew she was well thought of by John Arnold and that she was never singled out by him in his style of management.  That statement seemed to contrast with the statement of the applicant in re-examination that John Arnold would hide behind the greenery in order to observe her performing her duties.

Further in cross examination the applicant stated that she had  criticisms of John Arnold’s involvement with operational matters at the airport about which he knew nothing.  There was no evidence she ever did anything about those criticisms.

In cross examination it appeared to be of concern to the applicant that the rosters of subordinate employees had to be “manipulated” but it was clear that the responsibility of drawing up those rosters was not the responsibility of the applicant but of Jim Sheedie.

The applicant stated management did not do enough within the time frame expected things to be done and that things were not happening soon enough.

In cross examination the applicant agreed on 6 July 1995 she spoke to John Roach and the tenor of that conversation was that she was offered more money to stay with the respondent.  The applicant agreed John Roach was unhappy about her leaving. It was the evidence of the applicant that she would only re-consider her resignation if she saw a marked improvement in the area of her concerns.   However that statement was never communicated to the respondent.

On 12 July 1995 the applicant agreed she had an informal exit interview with Nigel Watts the leadership and training consultant employed by the respondent.  The applicant allegedly told him she was having her confidence undermined and she thought it was better that she should leave.

In cross examination the applicant stated that she resigned because the changes as identified in the team and leadership course were not being put into place.  These reasons differed from the reasons initially outlined by the applicant at the commencement of the hearing.

On 1 July 1995 the applicant had a social lunch with Vanessa Lynam and the subject of the resignation was discussed.  In order to preserve various rights the applicant submitted a further resignation in writing marked as exhibit 2.

That exhibit stated as follows:

“To     Vanessa Lynam

14 July 1995

From    Sharron Ward

Dear Vanessa

I refer to our discussion yesterday and you advice that my resignationshould have contained one months notice.

I have discussed with John Arnold today and hereby wish to amend my period of notice from two weeks to one month.  As the original letter was dated 5 July this would make my finish date 5 August.

Thank you for your support and time.

Yours sincerely

Sharron Ward.”

It was the evidence of the applicant that she worked out her notice her last day of employment being 4 August 1995.  A farewell drinks evening was held for the applicant by the respondent on 4 August 1995.  The applicant had signed a form seeking relief under the Industrial Relations legislation on 3 August 1995.

CONCLUSION

I place no weight on the evidence that the employer did not suggest the applicant was eligible for worker’s compensation payments in relation to her sick leave in December of 1995 as although the oral evidence suggested the symptoms were related to work place stress there was no medical evidence put forward to the court to confirm that nor any evidence that there was expert evidence place before the employer similarly, nor was there evidence that the employer resisted a claim for worker’s compensation.  There was also evidence the applicant was in touch with her union and so it can be concluded the applicant would have access to expert guidance in that regard.

In cross examination it was put to the applicant that a submission went from her section of employment to Head Office concerning staff shortages and that she agreed with the contents of the submission.  However, it was the oral evidence of the applicant that the problems of under staffing were not being dealt with quickly enough by the respondent.

In light of the paucity of evidence from the applicant as to the effects to her of the alleged “manipulation” of rosters - the only concrete evidence being exhibit 3 that seemed to relate to a confined period of time - coupled with the fact the creating of the rosters was not the responsibility of the applicant, I am unable to place much weight on that evidence.

By way of submission at the end of the evidence of the applicant Mr Kimber on behalf of the respondent made application that the application of the applicant be dismissed as the applicant had failed to establish the termination had occurred at the instigation of the employer.  Further that the court on the evidence before it could not find that a constructive dismissal had taken place.  I agree with the assertion of Mr Kimber that the applicant gave her evidence in a full and frank manner and I have formed the view that I am accordingly in a position to deal with such an application.  Mr Kimber stated the applicant rests her case on the bold assertion that if an employee has concerns about his or her employment he or she can then resign and those concerns must be considered when a decision is to be made as to the lawfulness or otherwise of a termination.  In relation to those concerns it was submitted if such was to relied upon as forming the basis of an unlawful termination then an applicant would have to establish a whole raft of activity by the respondent to lead the applicant inescapably to conclude that resignation was the only way out.  I agree with the conclusion of Mr Kimber that that was not the case here.

Mr Kimber relied on the case of Mohazab v Dick Smith Electronics Pty Limited a decision of the Full Court of this court by Justices Lee, Moore and Marshall handed down on 28 November 1995 and quoted as follows as pertinent to the application of Mrs Ward

“The present task is to construe the expression “termination at the initiative of the employer” as it appears in the Convention and determine whether there has been such a termination in relation to the employment of the applicant”.

It is the task of this tribunal to determine if the termination of the applicant was at the initiative of the employer.

Mr Kimber further stated from Mohazab

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment relationship is not voluntarily left by the employee.  That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

Mr Kimber further also on the case of Gunnedah Shire Council v Grout also a decision of the Full Court of this court heard by Justices Wilcox CJ, Spender and Beazley JJ and handed down on 19 December 1995 wherein it was stated;

“In our opinion, the correct conclusion on the evidence is that, although the notice given by Mr Grout was unduly short, it was unconditional notice capable of acceptance by the council so as to bring the contract of employment to an end.”

On behalf of the applicant Mr Moore in reply relied on the case of Quick Fit Pty Limited v Lineham and stated that in considering the circumstances of a termination the personalities of the parties involved play an important consideration and that the facts should be judged objectively. In the case before us to-day the applicant had been ill and when she returned to work after stress leave it was argued she continued to suffer further positive acts by the manager at the airport that contributed to her resignation.  It was very persuasively argued by Mr Moore that if an employee reaches a view that there is nothing she can do but resign then the court should look behind that resignation at the facts and determine whether the acts of the respondent form part of a chain forcing the resignation.

It was the evidence before the court that the applicant had a series of grievances about various issues and it is a finding of this court that one by one the respondent in a responsible and thorough and timely fashion addressed those grievances in order to assist the applicant with the performance of her duties.  One only has to consider the evidence of the meetings held and the attitude of the various managers as provided by the oral testimony of the applicant to reach that conclusion despite the assertion from the applicant that to her mind things were not happening quickly enough. In cross examination by 16 June 1995 the applicant told the court she was satisfied all issues of concern had been dealt with.  In light of the earlier approach of the applicant to matters of concern it was the evidence of the applicant that after that meeting Mr Arnold said to her he was disappointed that she had said so little.  It can be concluded the applicant realised the respondent was addressing her grievances as she outlined them and that at the meeting on 16 June 1995 she had nothing more to say.

I place no time limit upon management as to when grievances should be dealt with as obviously such things are highly individual and governed by the particular circumstances of each case.

The period over which the applicant appeared to strike trouble in her employment lasted several months.  At no time did she alert the respondent to the fact that she was considering resigning prior to exhibit 1.  At no time could it be claimed that the respondent by its actions could have been aware it was forcing the applicant into resigning.  I am of the view that the applicant was unable to put the past behind her as each of her grievances were dealt with by management and to go to forward with a good grace.  That view is supported by the evidence that at the meeting on 26 May 1995 the applicant referred to the fact that other duty managers did not support her application for the job of duty manager - that secondly she was the third cab of the rank when she was offered the job of duty manager and that thirdly she harboured reservations about the actions of John Arnold about which she never spoke to management but referred to during the course of this hearing.

It is noted further that  the applicant harked back to the period of sick leave in December of 1994 and the applicant seemed unable to rise above certain obviously petty observations from other members of staff.  To my mind management dealt with these stated irritations when raised by the applicant in meetings both patiently and correctly.  There was no chain of events that remained unaddressed by the respondent that led inexorably to the forced resignation of the applicant as the respondent dealt with the problems of the applicant when and as they arose.  It was the evidence of the applicant that she would only re-consider her resignation if she saw a marked improvement in the area of her concerns.  That attitude was never communicated to the respondent and it is a finding of this court that the applicant concealed the true position from the respondent in that regard.

It is unfair to expect an employer - if he wishes to retain the services of a valued employee - to have to read the mind of that employee and to divine that the employee will resign if certain things are not done within a specific time frame.  Particularly if that employer has already done much to meet the complaints of the applicant had had further expressed the view that he does not wish the employee to resign.  In this case the applicant tendered her written resignation and the respondent asked her if such was negotiable.  Such statements amount to a request that the employer  -  here the respondent Air New Zealand - did not wish the applicant to resign.

A further letter of resignation was submitted by the applicant marked as exhibit 2. 

That further letter of resignation was delivered some several weeks after the first letter was delivered.  Again at no time was the respondent afforded the opportunity to change the mind of the applicant as it simply did not know what was the real reason for the resignation -  that is, apparently, that things were not happening fast enough for the likes of the applicant. It can only be concluded that the applicant had determined to resign and come what may she would.  And she did.

It was the evidence of the applicant at the hearing of this claim for unlawful termination that she wants to be re-instated.  It was the evidence that she now wants to be re-instated as she has learned that there have been changes at her former work place and that the staff levels have increased.  Those staff levels had obviously not been increased on 3 August 1995 the day before the applicant left work. And yet on 3 August 1995 the applicant signed a legal document stating she was seeking reinstatement to go back to work.  I have to say I have considerable difficulty working out what the applicant wants and her reasons for so wanting.   There was some evidence that the applicant had visited a psychiatrist in relation to her stress problems but no evidence that either her condition nor any treatment she may have received prevented her from acting rationally.  Accordingly full responsibility has to be accorded to the applicant for her actions and I agree with the submission of Mr Kimber that there no evidence that the applicant did not know what she was doing.

Accordingly it is a finding of this court that the termination of the applicant was not at the initiative of the employer and that the applicant voluntarily and freely of her own will tendered her resignation.

It is a further finding of this court that the actions of the respondent did not amount to a constructive dismissal.

Accordingly I dismiss the application of Sharron Ward.

I CERTIFY that the above 12 pages are a true copy of the Reasons for Decision of Judicial Registrar Tomlinson handed down on 6 February 1996.

Associate:                   
Date:  6 February 1996

APPEARANCES
Applicant
Counsel  Mr R Moore
Solicitor  Ms I. Tremi of G H Healey & Co
Respondent                Mr M Kimber
Solicitor  Ms S.Bower of Cutler Hughes & Harris