Connors v Mackay Life Enhancement [1999] QIRC 35 (1999) 160 QGIG 153

152 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETI'E 26 Febrnary, 1999 26 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 153 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1997 s. 218 -- application for reinstatement Tracy Adrianne Connors AND Mackay Life Enhancement (No. B1622 of 1998) COMMISSIONER BLOOMFIELD 10 February 1999 Reinstatement Extension of Time Jurisdictional Issue Whether Applicant a short term casual employee - Resignation by Applicant - Whether resignation was constructive dismissal - Witness Evidence - Arbitrated .\fatter - Extension of Time Granted - Applicant found to have resigned voluntarily - Applicant found to be short term casual employee Applicant is excluded employee under Regulation 34(1) - Applicant also unable to access jurisdiction hecause no termination at the initiative of the employer. DECISION Thi:< is an application by Tracy Adlianue Connors which seeks relief in relation to her alleged constructive dismissal by Mackay Life Enhancement Group Inc on 16 September 1998. Background M.< Connor~ commenced employment with Mackay Life Enhancement on or about 3 October 1997 as a Disability Support Worker. She resigned her posiuon, effective 16 September 1998, by way ofa letter dated 15 September 1998. In her rcsignationktter to the Management CommiHee she mdicated that she had been told by the Manager of Mackay Life Enhancement that either her partner or herselt had to resign - because of a 1dat1onship between them- and that she had chosen tv leave as her partner was of greater value to the s0rvice. She alleged that the request to resign had been made during the course of a telephone call to the Manager the prev10us week. She indicated that the resio-naiion constnuted a constructive dismissal because her Manager had been making accusations about her relationship with the other staff memb,;r fo1 a p:riod of time and that she had finally decided to leave when she had been told that unless one of them resigned the Manager intended to bring the relaoonsh1p to the attention of the Management Committee. Matters for Determination As a consequence of certain jurisdictional points raised at the callover hearing three matters were argued during proceedings rn Mackay on 20 January 1999. 'I1ley were:- (i\ Whether Ms Connors shou.id be granted an extension of time of 12 days between 8 October and 19 October 1998 within which to lodge her application. \Vhether Ms Connors wa;; constructively dismissed or whether she simply resigned of her own accord. Whether .\1s Connors is entitled to a remedy in resp.~ct of her alleged unfair (or constructive) dismissal because of the effect of Regulation 34(1) of the Workplace Relations R.:gulation which excludes casual employees who have been employed for less than l year. I consider each of the points below. (i) Extension of Time It was uniformly accepted that Ms Connors sought counselling assistance and medical assistance on 16 September 1998 and for a number of weeks thereafter. Her application seeking relief in relation to her alleged constructive dismissal was lodged on 19 October 1998, some 12 days out of tmie. Havmg regard to the explanations prnvided by the applicant about her physical and mental .'>tale at the time and also to the fact that the employer respondeut consciously chose to make no submissions on the point I have decided to grant the extension of time sought. -- 1 of 2 -- 154 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 February, 1999 (ii) \Vhether there was a com,trm.:tive dismissal or a resignation? My dcc1si011 in rdatiun to point (iii) below would, in the normal course of events, have disposed of the matter. However, having regard to the considerable ferocity with which the case was fought - and to some rather unfortunate publicity given to the matter - I believe that it is in the interest of all of Lhe parties, and of the public, that T dispose of the second matter as well. The evidence is that there was a discussion between M!- Connors and Ms Thornton, the Manager of Mackay Life Enhancement, on the evening of Thursday 10 September 1998. Ms Connors' written material claimed that she had been told during the course of this discussion that one of the partners in the relationship would have to resign otherwise the Manager would take the matter to the Comrrnttee. Such contention was rejected by Ms Thornton who insisted that Ms Connors had telephoned her, in an abusive manner, to challenge a statement allegedly made by \1s Thornton to Ms Connors· partner along <:imilar Jines. M.s Thornton rejected that ,<;he had ever said any such thing to either Ms Connors or to her partner and had specifically rejected that contention during the course of the telephone discussion with Ms Connors. She explained that her problem as Manager had to do with the fact that Ms Connors' partner was her superior and that it was inappropriate for such a relationship to exist if one person continued to periodically he in charge of the other person. ln any event there was no further discussion between Ms Connors and Ms Thornton about the issue prior to Ms Conn01s writing out her own resignation and handing it to Ms Thornton on the morning of Tuesday 15 September 1998. Having considered the evidence I have reached th,~ conclusion that Ms Thornton d1d not ask Ms Connors nor her partner to resign and nor had she put \1.s Connors into a position where she was left with no alternativ,~ but to resign. Th<, deci-:ion to writr out the resignation and to leave was a conscious one taken by Ms C'~nnors after she had thought about the matter for at least four days and discussc:d her options with her partner. Indeed, it seems that what her partner may have said concerning the alleged discussion with Ms Thornton about the relation.ship and its appropriateness may have been the primary tactor wluch caused Ms Connors to make the decision to resign. In that context the evidence indicates that it may have been the partuer who firs! suggested that Ms Thornton had indicated that one of the two partners had lO resign if they intended lo keep their relat10nship alive. 1t was the relaying of this alleged conversation to Ms Connors by her partner which prompted Ms Connors to phone Ms Thornton on Thursday 10 September 1998. In deciding on the evidence. presented that the resignation was voluntary I have also noted that it was not the first occasion that Ms Connors had tended a resignation. She had earlier attempted to resign in Apnl but had been talked out of pursuing ha resignation at that time by Ms Thornton. In addition, the wording in Ms Connors' resignation letter suggests that she chose to resign rather than allow any action to possibly be taken against her partner whose employment. she believed, would be of greater value to the service. 111ere was simply nothing about the actions of Ms TI1ornton. in 4uestioning the appropriatenes.~ of the relationship between two employees at different bvels in the hierarchy, which would have brought the matter into the realms of a possible constructive dismissal case. None of those circumstances can\ as;;ed in decisions such a., Moluuab v Dick Smith Electronics Pty L1d (Nu. 2) (1995) 62 IR 200 or in Gunnedah Shire Council v Grout (1995) 62 IR 150 ex1stc,d in this ca'le. In any event, there would hd.ve been no great upheaval if the matter had heen referred to the Management Committee. The evidence disclosed that Mackay I jfe Enhancem,~nt had no difficulty in acccopting the rype of relationship that Ms Connors wa, involved in. The application should he dismissed on the ba<;is that there was no termination of employment at the initiative of the employer (ie. no constructive dismissal). The termination of employment came about because of a conscious decision by Ms Connors to resign. (iii) Whether Ms Connors is exdu<led hy the affect of ReguJation 34(1 )'t lt was common ground that Ms Connors had commenced employment on or around 3 October 1997 and that she ceased employment on l 6 September 1998. Such period represents kss than one year of employment. Regulation 34 ()f the Workplace Relations Regulation 1997 indicates, inter a/ia:- "Exclusion of employees fn.,m eh 5 - Act, s 216 34.(1) Chapter 5, part 2 of the Act does not apply to (a) a short term casual employee: or (h) an employee engaged for a specific period or task, unless the main purpo~e of engaging the employee in that way is, or was at the time of the employee's engagement. to avoid the employer'~ obligation~ under that part.". "·short term casual e1nployee' means a casual employee who is not a long term casual employee.''. " ·Jong term casual employee' mean.s a carnal employee who (a) is engaged (i) by a particular employer on a regular and srti:matic basis; and (ii) for several periods of employment during a period of at least 1 ye.a.r: and (h) apart from the employer's decision not to offer the person further employment, had a reasonable expectation of further employment by the employer" In considering the effect of the above Regulations it is necessary to determine whether the t:mployment relationship was that of a true casual empioyee or whether the relationship was, for example, that of a part-time employee. (See Mark Venter v Australian Country Choice Abattoirs (1997) 154 QGIG 468; Teresa Barry v George Strut Child Care Cenrre (199T, 155 QGIG 731: Paui Gerard Reed v Blue line Cruises limited, No. NI 4990R of 1995, unreportc.d 26 November 1996) 26 February, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 155 The evidence shows that Ms Connors worked the following hours on a fortnightly basis:- Fortnight Hours 07.10.97 ........................................................................................... 15.00 21.10.97 ........................................................................................... 31.75 04.11.97 ········ ................................................................................... 34.00 18.11.97 ........................................................................................... 28.00 02.12.97 ........................................................................................... 24.00 16.12.97 ........................................................................................... 30.00 30.12.97 ................... ....... 18.00 27.0I.98 ........................................................................................... 32.00 10.02.98 ........................................................................................... 38.50 24.02.98 ........................................................................................... 44.75 10.03.98 ........................................................................................... 38.00 24.03.98 ........................................................................................... 71.50 07.04.98 ........................................................................................... 48.00 21.04.98 ..... .......................... .. 70.00 06.05.98 ······ ..................................................................................... 39.00 19.05.98 ........................................................................................... 29.50 03.06.98 ··········· ................................................................................ 27.00 16.06.98 ........................................................................................... 38.00 01.07.98 ........................................................................................... 42.50 15.07.98 ........................................................................................... 33.00 29.07.98 ............................................................................................. 7.00 12.08.98 ........................................................................................... 24.00 26.08.98 ....... .. .... 24.00 09.09.98 ........................................................................................... 24.00 23.09.98 ........................................................................................... 12.00 The hours of work clearly disclose that Ms Connors was a true casual employee. Except for a period towards the end of her employment her hours were very irregular. Whilst she may have worked somewhat regular hours towards the end, that period, taken in context, would not have made her a part-time employee. His Honour, Justice Williams, President of the Industrial Court decided m Coralprint Pty Ltd tla Revamp Pty l.Jd v Michelle Coxeter ((1998) 158 QGIG 473) that a casual employee must have been employed by an employer for at least twelve months before the definition of "long term casual employee" in Regulation 34 could be satisfied. He also decided that each of the criteria within that definition needed to be satisfied before an employee could seek relief in relation to any alleged unfair dismissals. Because Ms Connors' length of employment was less than twelve months she does not meet the definition of "long term casual employee". She was a ''short term casual employee'' and therefore excluded by Regulation 34(1) from Chapter 5, Part 2 of the Act. It follows that because Ms Connors i.s an excluded employee her application seeking relief must be dismissed. The Cornmi.~.<ion determines and orders accordingly. A.L. BLOOMFIELD, Commissioner Released: 10 February 1999 Appearances:- • Mr R. Coll ms, of The Australian Workers' Union of Employees, Queensland, tor Ms T. Connors. • Mr M. Carter, of M. Carter and Associates, insm1cted by Mr R. Taylor, of McKays Solicitors, for Mackay Life Enhancement. #######################################################################################################################ffl# -- 2 of 2 --