Dowling v Bruce Low Medical Pty Ltd [2000] QIRC 66 (2000) 164 QGIG 284

284 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 July, 2000 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Renae Gai Dowling AND Bruce Low Medical Pty Ltd (No. B1763 of 1999) COMMISSIONER SWAN 4 July 2000 Application for reinstatement – Applicant resigned – Allegation of constructive dismissal rejected – Conflict between Applicant and Respondent’s wife – Applicant indicated intention to stay employed for only twelve months – Application dismissed. DECISION B1763/99 is an application made by Ms Renae Dowling for reinstatement (or other appropriate relief) to her former position as Administrative Officer with Bruce Low Medical Pty Ltd (the Company). Ms Dowling commenced employment with the Company around December 1997 (in a casual position) and from around November 1998 as the Administrative Officer in a full-time capacity. Ms Dowling claims to have been constructively dismissed by the Company around December 1999. Ms Dowling is the niece of Dr Bruce Low’s wife, Mrs Maureen Low. Many issues were raised in this case which can best be described as peripheral. They were peripheral in as much as they related to interactions between family members (ie Ms Dowling’s immediate family and Mrs Low). Those issues need not be referred to in this decision. The crux of the matter is whether Ms Dowling resigned from her position with the Company voluntarily or whether, as a consequence of alleged harassment by Mrs Low towards her, she had no other choice but to resign her position. Ms Dowling accepts that she had discussed with Dr Low the possibility of staying in her employment with the Company only for some twelve months after being appointed to her full-time position. She states that discussions around this issue were heightened because she perceived Mrs Low’s allegedly poor attitude during the last few months of her employment towards her as increasingly pronounced during this period. Mrs Low was employed elsewhere in a full-time position unconnected to her husband’s business, although in the area of health administration. However, Ms Dowling alleges that Mrs Low directed the performance of her duties on an increasingly intrusive basis. Upon advising Dr Low that his wife was interfering with the performance of her duties, Ms Dowling claims that Dr Low was supportive of her views in that he advised her to accept assistance from Mrs Low but that he did not want his wife to be in charge of the practice. From the applicant’s evidence, there appeared to emerge over time a serious conflict between herself and Mrs Low over how the practice should be run. On the one hand it appeared that Mrs Low would advise her of a certain course of action to be followed, and on the other, the applicant was advised by Dr Low to ignore his wife. From the applicant’s evidence, over time, Mrs Low’s behaviour towards her became verbally abusive, so much so that the applicant took sick leave. During the period in question, the applicant conferred with Dr Low, always finding Dr Low supportive of her views and stating that he would talk to his wife and the situation would improve. Around October, 1999, the applicant claims that she became aware that Mrs Low had written to the applicant’s family denigrating her. Ms Dowling raised this issue with Dr Low and, allegedly, he tried to defuse the situation. During October 1999, the applicant received an inter office communication stating that Mrs Low had been appointed the “Business Manager, Administration and Finance”. Upon raising concerns with Dr Low regarding the status of her own position, the applicant alleges that Dr Low said he was “made” to sign the correspondence by his wife but that Ms Dowling should ignore the content. Over this period of time the applicant claims she began receiving distressing letters and telephone calls at her home from Mrs Low. It was also claimed by the applicant that Mrs Low continued verbally abusing her at the workplace referring to her as a “druggie” and a “psychotic”. -- 1 of 3 -- 14 July, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 285 During November 1999, after one of these alleged abusive sessions, the applicant telephoned Dr Low (who was away from Townsville) advising him that she could no longer work for him because of his wife’s behaviour. Ms Dowling states that Dr Low asked her to stay with the practice. Ms Dowling, considering her position, again telephoned Dr Low stating: “That if Dr Low could promise that Maureen Low would not come near her, then she would continue to do the job until it was convenient for her to finish up. This was a temporary solution only.”. On 4 December 1999, the applicant received a letter from Mrs Low confirming a date of resignation of the previous day, December 3, 1999. Upon telephoning Dr Low, the applicant was advised that Dr Low had not authorised the letter and that he had wanted her to continue her employment. The applicant determined to leave the employment of Dr Low believing that “Maureen Low had gone too far this time and she could not take anything further.”. According to Mrs Low, Ms Dowling had indicated early in her employment that it was her intention to work for Dr Low for 12 months and then to travel to Sydney to join her boyfriend. Mrs Low expressed concerns regarding the applicant’s behaviour at work stating that she often appeared to be overly tired and that she neglected her office duties. Dr Low had approved and paid for the attendance of Ms Dowling at a Practice Management Course in Brisbane and had also provided computer training for the applicant. Tensions appeared to become escalated between Mrs Low and the applicant over time to the point where Mrs Low stated that, upon attending at the surgery on a particular day, Ms Dowling “hissed” at her stating “What are you doing here, I told you not to come here.”. Mrs Low claims that she was informed by Dr Low that Ms Dowling had determined to leave his employ at the end of the following month. It was claimed that Ms Dowling responded to this information by calling Mrs Low “a crazy psychotic bitch”. Mrs Low believed that as Ms Dowling would be leaving at the end of November 1999, she and Dr Low would simply “soldier on” until then. Ms Robyn Ferrier, currently the Office Administrator for the practice, believed that a “power struggle” existed between the applicant and Mrs Low. Ms Ferrier was adamant that Ms Dowling had often stated that she had promised Dr Low that she would work on a full-time basis for Dr Low for a period of twelve months, which would expire in December 1999. Ms Ferrier’s evidence was that she was always of the view that Ms Dowling was leaving the practice in early December 1999. To her mind, Ms Dowling had made her intentions perfectly clear. A patient of Dr Low’s, Mr Terence Lincoln claimed that he had discussed living in Sydney with Ms Dowling whilst at the surgery, and that she had informed him that she was leaving the practice around late November 1999. Dr Low, in his evidence, stated that it was always understood between himself and Ms Dowling that she would work at his practice for twelve months only. Dr Low was aware of the friction which existed between his wife and the applicant, but that he had afforded the applicant significant support. Dr Low believed that he had been a good employer in that he had paid Ms Dowling some $150 per week above the Award; arranged for the applicant to attend a Practice Management Course in Brisbane; permitted Ms Dowling to spend extra time in Sydney with her boyfriend; compensated Ms Dowling for jewellery stolen ($1000); took no action against the applicant when it was found that the applicant had been overpaying herself and did not deduct money from her wages when she frequently did not attend work on Monday or Friday. Dr Low states that around 22 November, 1999 Ms Dowling advised him that this would be her last week and that she would be flying to Sydney around 22 December, 1999. Dr Low was emphatic that Ms Dowling had always intended living in Sydney with her boyfriend and that she had fixed a date to leave some time in early December, 1999. An unchallenged statement made by Mr Sebastian Saitta (a patient of Dr Low’s) claimed that Ms Dowling had discussed with him moving to Sydney to be with her boyfriend. Mr Saitta further claims that Ms Dowling advised him that, on a particular day, it was her last day at work and that she appeared to be “wrapped” about shortly moving to Sydney. This matter has been somewhat difficult to determine. This is primarily so because it involves considerable elements of family feuding interspersed with an employment engagement. I formed the view, after considering Mrs Low’s evidence, that she may well be a difficult person to be around. Notwithstanding the fact that she held a full-time position with a Government Department in Townsville, she appeared to find the time to play a reasonably active role in her husband’s practice. That she was appointed as Business Manager, Finance and Administration of the practice seems unusual to say the least. From correspondence tendered during this case, there is little doubt that family friction existed between Mrs Low and Ms Dowling’s parents. This friction manifested itself through correspondence sent by Mrs Low to Ms Dowling, and regrettably also flowed into the work environment. Dr Low’s evidence that he seemed to be caught in the middle of a family feud at the workplace, is believable. Dr Low’s evidence showed him to be a good employer in that he treated his employee, Ms Dowling, well. However, he appeared to be deficient in one respect – he seemed unable to curtail the excesses of his wife, which in turn had an adverse affect on his employee, Ms Dowling. He appeared to be ready to put up a fight to defend his employee’s interests but then seemed to acquiesce to his wife’s demands at the crucial moment. It has been put to me by the applicant’s Counsel that Ms Dowling was forced out of her employment my Mrs Low. In effect, that she was constructively dismissed. I am unable to accept this proposition. I accept the evidence from a range of people previously referred to that Ms Dowling had always intended leaving the employ of Dr Bruce Low around early December, 1999. The fact that she had experienced an unpleasant relationship with her aunt, Mrs Low, was simply that. I accept that it was highly -- 2 of 3 -- 286 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 July, 2000 probable that Mrs Low was the more aggravating and unpleasant person in this relationship. This unpleasantness may have exacerbated Ms Dowling’s desire to leave the employ of Dr Low, but I accept that she was leaving in any event. I also accept that Mrs Low may have wanted Ms Dowling to leave the practice so that she could assume greater control over it, but this was not the reason for Ms Dowling to leave the practice. The reason Ms Dowling left the employ of Dr Low was because she wanted to travel to Sydney for her own personal reasons. I am unable to find that Ms Dowling was forced out of her employment. Her period of employment with Dr Low (through an oral contractual arrangement between both the parties) had expired. The fact that Ms Dowling had wanted to escape from the unpleasantness of her aunt, Mrs Low, coincided with her intention to resign her employment. There was no dismissal, constructive or otherwise. I dismiss the application. Dated this fourth day of July, 2000. D.A. SWAN, Commissioner. Appearances:– Released: 5 July 2000 Mr M.E. Pope, instructed by Wilson Ryan & Grose, for the Applicant. Mr C.A. White, instructed by Roberts Nehmer McKee, forthe Respondent. -- 3 of 3 --