Thomas Concannon v Portland District Health

[2015] FWC 513

[2015] FWC 513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Thomas Concannon
v
Portland District Health
(U2014/11330)

VICE PRESIDENT WATSON MELBOURNE, 30 JANUARY 2015

Application for relief from unfair dismissal - Threshold jurisdictional issue to be determined - Whether applicant was constructively dismissed -application dismissed- Fair Work Act 2009 ss.385, 386, 394.

Introduction

[1] This decision concerns an application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act). The application was made by Mr Thomas Concannon who was employed by Portland District Health as Human Resources Manager from 25 March 2013 until 8 July 2014. Portland District Health opposes the application on the jurisdictional basis that there was no dismissal. It contends that Mr Concannon resigned from his employment and that the termination of his employment was not at the initiative of the employer.

[2] A jurisdictional hearing to determine this threshold issue was held on 17 and 18 December 2014. Mr Concannon represented himself and Portland District Health was represented by Mr Rinaldi of counsel. At the hearing of the matter evidence was given by the following persons:

• Ms Christine Giles - Chief Executive Officer, Portland District Health
• Ms Roselyn Jones - Director of Corporate Services, Portland District Health
• Mr Thomas Concannon - Former HR Manager

Background

[3] Mr Concannon commenced employment as HR Manager with Portland District Health on 25 March 2013. He initially reported to the Director of Corporate Services, Ms Roselyn Jones. In the following months Mr Concannon dealt with a number of significant HR matters at Portland District Health that involved senior managers and the CEO, Ms Christine Giles. In the early period of his employment he was concerned at the standing of the HR department within the organisation and began to oversee the HR function in a manner designed to enhance the professionalism of its performance and its standing within the organisation.

[4] In October 2013, at the completion of Mr Concannon’s probationary employment period, Ms Giles revised the reporting lines of some senior managers, reclassified Mr Concannon to a higher job grade and required him to report directly to her.

[5] In the ensuing period Mr Concannon continued to deal with significant HR issues. In his view however, HR was sidelined from many decisions and was becoming the scapegoat for controversial outcomes. He considered that the open door policy of Ms Giles contributed to these outcomes. It will be necessary to consider the evidence of these events in more detail. These circumstances gave rise to considerable frustration for Mr Concannon culminating in events on 8 July 2014 which are at the heart of the jurisdictional issue and will also need to be considered in further detail.

[6] On 8 July 2014 Mr Concannon departed work because he had formed the view that his contract of employment had been frustrated. Ms Giles phoned him and left a message on his voicemail. Shortly afterwards he sent a text message to her which read:

“There is nothing to discuss Chris/Ros... I am beyond words and wish to maintain some civility... I will forward a breakdown of matters in progress over the next few days... I have deleted account access to PDH network files as per normal protocol and I believe Ros can get Troy to provide access to my files etc... They are well labelled and intuitive to navigate.”

[7] At 8.07pm that evening Mr. Concannon sent Ms Giles an email which read:

“Chris,

It is with great regret that I am forced to tender my resignation effective as at 4pm 8 July 2014, consequential to being exposed to potential industrial/bullying issues. I am not in a position to be exposed to such litigation noting the potential fines for individuals are up to $30K, a risk I simply cannot afford, and corporate fines up to $l00k.

As such I have little choice in my actions. I must say that while I have enjoyed my time at PDH I am disappointed beyond words that I have been forced into such a position. While I am well aware re the requirement to consult, I had to make a relatively hasty decision and did so. As such, and not being an employee of PDH I now have no such obligation.

Noting the aforementioned, I acknowledge that I have not provided appropriate notice and am well aware that I will have limited funds owing once my required notice has been deducted from my current entitlements. I would however appreciate having the availability to salary sacrifice any sum owing. I will not compromise and members of PDH in requesting referee reports but I would appreciate a separation certificate to enable me to register for unemployment until I can secure further employment.

Further to the aforementioned, and noting I have to live pending further employment (noting there is ZERO opportunity of gaining employment in Portland) I will be pursuing either civil and/or industrial damages consequential to frustration of contract. I will be seeking equivalence of 12 months salary via either civil or Industrial jurisdictions and am currently discussing options with my legal representative. Noting there is a 21 day limitation re seeking industrial remedies I am happy to delay for a few weeks during which I am happy to consult either in writing and or email to discuss options to avoid possible corporate and individual penalties and court costs.

Further, I am seeking advice relating to pursuing civil damages against a number of individuals within PDH and it may be in the best interests of PDH to ensure it undertakes all reasonable steps to mitigate its potential for accountability via ensuring these individuals are advised to cease their personal attacks, and for PDH. to distance itself from these individuals. Those persons will be pursued individually in the near future.

Please do not take this as a reflection on PDH as a whole, I do sincerely hold great regret for the actions I am forced to take as I had sincerely hoped that PDH was mature enough to embrace cultural change and some levels of accountability.

Regards,

Tom Concannon”

[8] Mr Concannon sent a further email to Ms Giles on 10 July 2014. It read:

“Chris,

To ensure there is some clarification re my recent resignation please allow me to provide the following:

My decision was not one I took lightly. It is nonetheless a decision that has destroyed my career.

Despite what might be rumoured, be aware that I had full intention of remaining in Portland for some time and my decision to purchase a new vehicle and look at new rental properties and/or properties for purchase are not actions taken by a person who effectively removes themselves from opportunities to gain an income in order to repay those items (noting I will be forced to dispose of my vehicle in the following months as finances dwindle but that is not your issue).

I am well able to accept professional criticism, but when that criticism becomes personal (with the potential for class actions noting the collective cauldron of shit stirrers, as listed below) and is primarily sourced from within my workplace I am left little option but to undertake personal actions to cease those criticisms. This personal litigation would, potentially leave PDH vicariously liable for my actions and as PDH was unwilling to cease those activities by continuing to support the key persons in question I had little option but to distance myself from PDH with immediate effect.

I can advise that I will be commencing actions via a number of jurisdictions against the following persons:

• Rachel Stoneman
• Annette Hinchcliffe
• Rachel Moore
• Donna Eichler
• Janet Hauser
• Helen Anderson
• Bev Mcilroy
• Vicky Buchannan
• And our loopy Psychologist (who's name escapes me)

Noting they are all employees of PDH and noting that it is common knowledge that all have been instrumental (either individually and/or collectively) in demonstrable personal attacks upon my character, white anting, deliberate sabotage, the spreading of misinformation and passing on liability for their activities and inaction; it would be advisable for PDH to ensure it advises and reinforces with these persons that any internal and/or public comment against an individual does not come without accountability. PDH will need to ensure it does all that it can to limit its vicarious liability pending litigation against these individuals. Once proceedings commence, any potential liability on the behalf of PDH is beyond my control but PDH can limit its accountability via advising these employees that PDH will wash its hands of them if they continue to undertake their activities against me.

Additionally, I will be exploring options to commence proceedings against Flip (our EAP provider) over a number of matters where he has knowingly misrepresented PDH as a service provider, I am yet to review his professional standards and will pursue actions subject to weighing up prospects of success.

As you are no doubt aware, the actions I am currently pursuing would be limited if I were an employee of PDH and could implicate PDH if things went astray (although I am 100% confident of success in all matters with the exception of Flip).

I am now in a position where I have nothing and as such I have nothing to lose. There comes a time when enough is enough and personally, I have had a gut full of these individuals and their white anting and as such I will be unleashing 10 kinds of hell upon each of them. I can assure you they will not live long enough to regret ever having chosen to pick a fight with me. As I have always said "don't fuck with a fucker" and I am the nastiest fucker I know.

Noting my request for compensation, I do not believe I am seeking anything less than has been provided to any number of other individuals (as per the aforementioned list), it is apparently the PDH norm to reward incompetence and dysfunctionality and apparently (as the gossip would have it) I'm as incompetent and dysfunctional as they come.

Rest assured, I have no intention whatsoever in misrepresenting PDH and will always defend the institution, I personally enjoyed every day at PDH and am honestly and sincerely saddened that I was left little option but to undertake the actions I am now forced to undertake (noting these actions have destroyed my career). I have always spoken supportively of you and PDH (and will continue to do so) however I had hoped for some better support and trust in my advice.

I do hope this will go some way in providing you with some clarity re my decision.

Regards,

Tom Concannon”

[9] Ms Giles replied to Mr Concannon in a letter dated 15 July 2014. The reply contains the following statements:

“...In your email of 8 July 2014, you state that you were 'forced' to tender your resignation. I do not agree. In your email of 10 July 2014, you list 9 individuals and state that you ‘will be commencing actions via a number of jurisdictions’, against them. You further state that these people have been responsible for 'personal attacks' on your character but do not say what these are. You also indicate that you intend to take proceedings against our EAP provider.

I am disappointed that if you felt you had legitimate complaints to make against other employees that you did not do so whilst still employed. As you know, Portland District Health has a range of policies to address employee complaints including but not limited to grievance procedures. As the Human Resources Manager, you were familiar with these policies but did not make any complaint during your employment. Further, as the Human Resources Manager, you were uniquely placed to understand the importance of following these procedures to resolve workplace disputes but did not do so.”

Relevant legislation

[10] Section 385 of the Act makes clear that one element of an unfair dismissal is that the person has been dismissed. Section 386 defines the meaning of “dismissed”. Subsection (1) is of relevance to this case. It states:

Meaning of dismissed

(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.

[11] The Explanatory Memorandum to the Fair Work Bill 2008 in respect of this section deals with the meaning of the term “dismissed” at Item 1528. The reference to s.386 and the meaning of “dismissed” is discussed states:

This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person‘s employment with his or her employer was terminated on the employer‘s initiative. This is intended to capture case law relating to the meaning of termination at the initiative of the employer (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

[12] Item 1529 states:

Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

[13] Item 1530 goes on to state:

Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

● where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

● where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.

[14] It appears that there is overlap between the circumstances in paragraphs 386(1)(a) and (b). Both paragraphs encompass the common law notion of constructive dismissal. Paragraph (a) does so because a constructive dismissal is a termination at the initiative of the employer. Paragraph (b) appears to be an attempt to codify the common law constructive dismissal concept. It will be necessary to consider both paragraphs because coverage by one or the other is sufficient to satisfy the jurisdictional requirement for a dismissal.

[15] There are well established principles of common law that have been developed by courts to determine whether an individual resigned or was terminated at the initiative of the employer. In P O’Meara v Stanley Works Pty Ltd 1 a Full Bench of Australian Industrial Relations Commission conveniently summarised the common law approach. At [19], the Full Bench said:

“[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

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 and 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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’” 2

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited 3 (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.” 4

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd  5 (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.” 6

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit 7 (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.” 8

[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.” 9 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.”

[16] I propose to apply this approach in this case and separately consider the possible application of paragraph (b) by reference to the words of that paragraph.

Evidence regarding the circumstances leading to the termination

[17] The emails of 8 and 10 July, set out above, provide the contemporaneous reasons for Mr Concannon’s decision to resign. I propose to consider the matters raised by him in that correspondence and in his evidence, make relevant findings of fact, and consider those facts against the tests I need to apply concerning the meaning of a dismissal.

[18] Mr Concannon, Ms Giles and Ms Jones gave evidence about these events. There are some differences in the relevant versions of the events. There is more significant diversion as to the appropriateness of the events and actions of Ms Giles in particular. It is clear that the ultimate decision to resign was not taken because of one event but was the culmination of a series of events that caused Mr Concannon significant frustration. Ms Giles considered that the concerns were not justified and could be addressed through normal processes.

[19] Mr Concannon claims that his resignation was forced because the HR role was being undermined. He provided several examples where he believed HR was deliberately being undermined. One such example is the appointment of the Director of Medical Services (DMS). Mr Concannon states he did not know about the appointment until he was called into Ms Giles’s office to discuss the DMS’s remuneration.

[20] A further example concerned a meeting that had been organized for 8 July 2014 to discuss redundancy with a PDH employee (Ms Moore). Mr Concannon states that the meeting and procedures followed were similar to other redundancies. The meeting was postponed by Ms Giles, to allow the employee time to compose herself, after a meeting Ms Giles held with Ms Moore. Upon hearing of the cancellation of the meeting, Mr Concannon decided that he did not have any option but to resign due to the clear frustration of his contract of employment.

[21] Mr Concannon stated that he was of the view that Ms Giles had approved the redundancy process and was in agreement with the redundancy being dealt with in a similar fashion to the four previous redundancies. Ms Giles, on the other hand said that she was surprised by the redundancy letter. Whilst there had been discussions at an executive level regarding the proposed redundancy, she had not approved the release of the redundancy letter. Furthermore, as Ms Giles has the delegated power in relation to termination she was unaware that such a letter had been sent without her authority. Ms Giles met with Ms Moore after she had received the redundancy letter, and ascertained she was emotional and it would be better to postpone her meeting that afternoon with Mr Concannon that was scheduled for later.

[22] In addition Mr Concannon states that six weeks prior to his forced departure he met with Ms Giles to discuss his concerns relating to HR’s exclusion of significant HR related matters. Mr Concannon said that he advised Ms Giles that he was unable to continue in the current role given that HR was being deliberately distanced from important HR matters. Mr Concannon states that there was negligible response from Ms Giles regarding the subject. Ms Giles stated that in the conversation Mr Concannon said that the HR Department was being portrayed as “the bad cop” and that Mr Concannon suggested a restructuring of the HR department separating the Human Resources function from the Industrial Relation role. Ms Giles said that she was receptive to considering a different structure and requested Mr Concannon to prepare a proposed new structure. At the time of the resignation no proposal had been received by Ms Giles.

[23] The reasons given in the emails of 8 and 10 July are broadly related to the course of events. In those communications Mr Concannon foreshadows an intention to commence proceedings against specified PDH employees over what he regards as personal attacks. He said that the potential vicarious liability of PDH arising from his legal actions left him with little option but to distance himself from PDH with immediate effect.

[24] In one of the witness statements admitted into evidence of Mr Concannon said:

“The applicant has never presented any threats towards any employee of PDH. The applicant was very deliberate and clear that he would be pursuing civil actions against a number of PDH employees. This was necessitated consequential to the CEO’s deliberate and very open support for these individuals. The applicant was therefore left no option but to seek remedies external to PDH as it was clear the CEO was active in supporting and condoning their repeated attacks of the applicant (personally and professionally).

The applicant fully intends to pursue civil actions against the named individuals however; this matter has been stalled due to uncertainty re PDH support. Ms Vause advised that PDH was representing at least one of these persons and has yet to respond to the applicant re PDH intention to represent its staff in civil matters beyond the scope of their employment with PDH.”

[25] In all of these circumstances I find that Ms Giles’ method of management caused considerable frustration to Mr Concannon because she involved herself in HR processes and decisions and often did so at the expense of his involvement and role in decision-making. Ms Giles made no apology for this approach and said that it was consistent with the management style she had adopted in roles in other organisations and the “hands-on” approach she intended to apply in this role. Mr Concannon had experience of more autonomy in the HR function, where he was involved in decision-making and processes and could defend the integrity of HR decisions and the professionalism of the HR department. The different expectations over management style and organisational principle lie at the heart of the conflict. The conflict with other employees and the threat of litigation was partly a by-product of this underlying disagreement and partly the product of conflict over particular issues that were dealt with in the organisation.

[26] I do not consider that either management style is necessarily right or wrong. Organisations adopt different organisation structures and different types of accountability. Over the past twenty years there has been a trend for HR to perform more of an advisory role to line management and to have less autonomy over staff related decision making. There has been a corresponding trend for line managers to assume greater accountability for staff issues within their field of responsibility. But the extent to which this occurs varies considerably across organisations. Ultimately these matters are for chief executives to determine subject to their accountability to the Board of Directors. I do not consider that the management style of Ms Giles was inherently unreasonable. Further, I consider that decisions on those matters were essentially hers to make.

[27] Ms Giles was appointed CEO prior to the recruitment of Mr Concannon as HR Manager. It appears that when reporting to Ms Jones he had more autonomy than when he reported to Ms Giles. However, in my view, there could have been no legitimate expectation from the circumstances of his engagement, including his contract of employment, that a particular level of autonomy was going to be applied to his role or that decision-making processes could not change over time.

[28] Mr Concannon may not have approved of the hands on approach, but he had no right to require it be any different. He had the option of pointing out the difficulties he could foresee with the approach and he availed himself of that opportunity. He had the option of giving advice over matters which came to his attention. He had the option to point out to employees when decisions affecting them were made by others, so that responsibility for actions could be taken by those who took the actions. He otherwise had access to PDH policies including counselling, assistance, complaints and dispute resolution in relation to the difficulties he had with the organisational structure and the behaviour of other employees. However none of these options were guaranteed to lead to a reversal of the “hands on” management approach adopted by Ms Giles or the elimination of all conflict with other employees.

[29] Importantly, Ms Giles did not consider him responsible for actions in which he was not involved. She was content to seek his advice when needed and utilise his service when she considered it appropriate. She had no desire to terminate his employment. Mr Concannon clearly intensely disagreed with the approach and the actions of fellow employees. His disagreement and frustration gave rise to a further option of resigning. But resignation was not the only option available to him and it was not one that he was forced to make. To the extent that he considered that he had no option, I consider that viewed objectively, it was in the nature of a path he chose to take because he did not wish to continue working in the particular organisational and interpersonal environment that had developed. As understandable as his decision may have been given his passionate views as to optimal HR and organisational roles, I do not consider that this decision was the only reasonable one available to him. I do not consider that any action of the employer forced him to submit his resignation. I do not consider that resignation was the probable result of the employer’s actions and I do not consider that Mr Concannon had no effective or real choice but to resign.

Conclusions

[30] For the above reasons I find that Mr Concannon was not dismissed from his employment. He chose to resign when another option of ongoing employment was available to him. As much as he disliked the situation, his position was not untenable. Some of his concerns, such as complaints against the behaviour of other employees, could have been addressed through available processes. He made the choice. He terminated his contract of employment.

[31] A dismissal is an essential element of an unfair dismissal application. No dismissal occurred in the circumstances of this case, Mr Concannon’s unfair dismissal application must be dismissed. An order [PR560596] to this effect is issued concurrently.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Appearances:

Mr Concannon on his own behalf.

Mr Rinaldi of counsel for Portland District Health.

Hearing Details:

2014.

Warrnambool.

17 & 18 December.

 1   PR973462.

 2   Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR at 205-6.

 3 (1996) 67 IR 154.

 4   Ibid at 160-1.

 5   Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C.

 6   Ibid at 13.

 7   Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C: quoted with approval in BC Stubbs v Austar Entertainment Pty Ltd, Print Q0008, 17 December 1998 per Ross VP, Munro J and Harrison C and in Mosey v Australian Customs Service (2002)116 IR 1.

 8   Ibid at page 12.

 9   Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 at 205

Printed by authority of the Commonwealth Government Printer

<Price code C, PR560268>