Achal v Electrolux Pty Ltd [1993] QIRC 158 (1993) 143 QGIG 144

144 QUEENSLAND GOVERNMENT rNDUSTRIAL GAZETTE [4 June, 1993 #############ti###########/1############################### QUEENSLAN D I NDUS T RIAL RELATIONS COMM ISSION /nJustrial Re/at,ons .4 et /990 s. 11 .:n - applica tion for reinstakmcnt i'..fadhu Ach al AND El~ctro lux Pty. Ltd. (No. fJ 90 of /993) CHIEF IN D USTRIAL CO Ml'. II SSIONER JI AU, 25 l\ b y 1993 Tem1i nat ion of Em pl oym \!n t (\)ns trui:tive di~missal l)f Resignalit.m - Withdrawal of Resignation tendered whi k in st.ile of cm,>ti,, na l strl!SS - £videnC(; -- R~instat~m~nt inapp n.1p r ia1~ - PO\\ l!r to rei ns tate to be exen:i:::l!d \\'i th c:nil i 1.,n .. Ordc-r t\)r re - i:mp h.,yml:'nt inappropriate •- Cc>tl$l ruc1i,m of Section 11.:ll<( I)(.:-) ..... factor, a ffect ing a mo unt or com pensation 1>rdc rcd •- Appl ican t', co nt rihution to dis mi ssnl - Reduct i on in cornpt;': nsat i ..,,n DEC IS IOI'\ Th e App li ca nt. !\1'1dhu Ach:t l. an-ived in Australia <HI 26 Oc 1,, ber I980, She commern:cd W(IJ'k in he r J,r,t j,1b . just over a vear later, on 20 Nove mh er 1981. She held that j ob ·unti l. earl) Fch1~1a ry 1993. The Ap plicant W:t.'- ~1 wo r king m oth\.'.' r. Ov er a suh~t:mtia l f)('!'IOd of tim e. to the k no wl edge of t h,"e of he r su per vis<>rs ha,a d in the Respond ent's West End o ffi ce. she disd1arged her d u al 1lhl igati ,>11' bv collecting he r two daughters. Dipll S"ast i , \chal anJ , \n isc ha Swast i Acha l. from thei r , d Hi.> I (Somcrvil k H,,u,c) at , >r aho ul 3.00 p.m .. and by supervising th em al the Re sp,1 111.kn t', West End ol1icc concurrently w ith the disch arge of her dut ic, as an A,·,·ounts C lerk. II was the decision of l\ le lllllUllle hnscd olli,·ers 111' the Rcsp,i n de1ll (or one of them) to de ny the , \pp li,·ant's child ren ac,·ess Ill the Wcst End office which triggered the course of even ts k;1ding Ill the separation of th e Applicant and the Respondent. T he App lican t' s evid.::nce i, that she w:" lirst inr,,nned that she mig ht no longer m ind the children 011 the Re,p,1nde nt 's busi ness prem ises on Tuesday. 2 February 1993. 2 Fdiruary was ll1t· dav 011 w hich the ,h il dren res um.:d sc hoo l ana t he Christ11 1as -- New Ycar ho liday break. Her evidence was that the info11na tion w," commu nicated to h<!r by h "r imtllcdiate superi<>r (fvl r Smi th ) al t>r about 1.30 p.m. She !dis me t lw t her 1w,1 daugh ter, \\ ere then at school and that she had no opp,H1unity 1'1 ma~e any altemativc arrangements. Mr Sm ith gave cvidenc" th:ll he first 1<1lcl the .-\ppl ica nl that she was no longer allowed 1,1 mi nd her chi ldr,·11 on the Resrwndent 's premises on 29 December 1992. llis ev i,knce "as 1ha1 th" , \pp l ic:1111 had so ught (unsucc.,ssful ly) to re -open the topic " ith him ,H l I Febn,ary 1993. Mr Davis, the R.:spond .,nt's Regional !'.·lanager fo r ()ueensland. gave ev idence th at the App lica nt had ,ough t him ou t 0 11 1he ailenH1011 or Mon da y I Fd iniary 1993. and r:iised with him 1\-lr Slllith's refusal to allow her lo m ind the two girls 011 t he Respomk111·, premi,.,s in t he fo rthcoming school ycar. Ms McCon nack. an clllph1yee ,,f the Respond.::nl :i nd a f~ln n er wor km at e or the App li can t. g:1ve eviden.:e that th,· r\ppli,:1111 had telephoned her at her lnHne on or about 30 ,ir JI De,·ember 1992 and w hi le she was on ho li days, Ms ~lcConnad.'s e,·,den,·e was th at the A pp li cant was very angl°)· about a con\'('r:-.a t ion w ith (\'lr Smith t)ll th~ previous day in thl.! t.:'OlH"S\! •.lf wh jd\ ~1r Sm i th i11fo11n .:-<l h~r that :-he was no longe r 10 care for her d1ildrc11 011 the prem i,e, alter scho,ll. J\·1s McConna.:k gave evidence that whe n she rctuntecl ill w,,rk ,1 11 the Monday after New Year (4 January 1993). the .c\ppl i,·:1111 ca ll ed llfl<>ll her in h,;r o flice and again worked '"'er the ,oals ,,t' the c'<>ll\'Cr,a tion with Mr Smith. Ms Jean Co ur1enay. another employee of the Respondent and fom1er wo rkmate of t he Appl icru \l , gave eviden ce that around C hr istmas 1992 the Applicant had told her that in t he fo rthcomi ng year she (the Applicant) would no t be pem1itted to bring her children into t he ollice after school. Each of Mr Sm ith, Mr Davis . Ms McCo nn ack and Ms Courtenay were cross- exa mined as to th ei r reco llection. Each of them seemed to me to have a clear recollection of t he conversations which they reco unted. Save in the case of the tele phonic com mu nication with Ms McCo nn ack and the face to face co nversation w ith Ms Cou rtenay, the d ay on wh ich each co nversation loo k place was preci se ly identified. The Appli cant's evidence anributes to t he Responden t's co ndu ct w hich is both grossly a nd unnecessarily unfa ir. No o bvious benefit would flow to the Respo ndent from such co nduc t. On balance I h aw co me to the conclusion that I shou ld accept the ev iden ce of the Res pondent's w itnesses on t his poi nt. I do accept that t he discussions wh ich the Appl ic ant had with M,;ssrs Smith and Davis on Tuesd ay 2 February ca used her to feel both anger and dis tress. The App licant says th at s he felt quite ill on the afternoon of Tuesday 2 February a ft er the discussion with Mr Sm ith upon the matte r of her child ren's attendance al the wo rkpl ace on that day. Mr Smith says that the Applicant t,eca me heated du ri ng the discussion and tha t she was in tears at he r desk from about 2.00 p.m. to 4,00 p.m. Both Mr Smi th and "-lr Davis gav e ev ide nce that the App licant was visibly ur set d u ri ng the cons ultation w ith them which co mm enced sho rtly a lter 4. 00 p.m wi th, I am told by r,.,tr Da vis. th e w holly co mmend ahk ai m of peacefu l reso lution. T he App licant te ll s me that she was quite un well that night. A Medical Practi tioner issued a ce,tificate bv which it is asserted that an exa minati on of the Applicant on, 2 Febnrnry 1993 cause d the Prac tit ioner to fonn th e o pinion that the Applicant was suffering from "acute tens ion headache.s/ stress al work" and would be unfit for duty up to and including 9 February 199'.1 . The advice wh ich the Medical Pract it iMer gave lo the Applicant has not been lea d in ev iM nce. lt se ems r.:asooable to ,n fo r from the issue and cont en t of the ce,1ificate t hat t he Ap pl ica nt was told th at she should 11 01 atl end fo r \ \ •Ork. R egrettably, she did. The App li can t' s N lum to the workplace ,, n 3 Fehr ua,y 1993 was abo a retum to the discussion wi th Messrs Smith and Dav,s which had adjo urned t he prev ious evening. in order th at the App licant might haw an opportunity 10 discuss with he r husband the problem which had arisen in connection wi th the after sc hoo l care of he r children. ·111e evidence of each of Mr Smith and ~fr Davis was that the Ap plicant was composed. 111c App lica nt te lls me th at she st ill fe lt Ve!)' •~nse and had a headache. On all the ev idence t he meeti ng became heated and the Applicant was upset at its conclusion. I have no difficul ty in accept ing that the App lican t was u 11 der stress and that her early d~mcanour and appearanc~ were the product of se lf-contro l. TI 1e meeting of 3 February 1993 was a dcback The Applicant sought 10 w ithdraw and apologise for certain remarks addressed 10 Mr Smi th whic h had fol k n from he r in the course of the discussions the prev ious da y. She ended by republ ish ing so me part of the.m. In ci rcu mstances in which I am tol d o n oath by Mr Smi th that he had no intention of dismissi ng the App li can t, Mr Sm ith told the App li cant thal she had no respect for him and that he coul d not work with her. and asked her when (not if) she wan ted to leave. The Applicant replied that she would leaw "now " and in fact did so. It is argued by Mr O'Su llivan for the Applicant lh al in the circumstances there was a construct ive dismiss a l. I think th at he is right. ln Re !\1 id1aclis Bayley T mdi ng Co. and N ew S outh 'W al es Sal es Represc nbti .,cs and Co mme ,dal s Tr.inlleis Guil d 119791 AR(NSW) 392 at 393 Machn J observed: - "Just a;; ,1 is a fundamenw l requ irement for an emp loyment contract lo be entered into by the ge nuine conse nt of both parties 10 the cont rac t - a consent un tainted by any hint of pressu re of threat - so , too, it must be le nnin ated by a resignation equally untainted by any su ch threat. Where a contract is ti:: n ni n :t ted otherwis~ it nmounts to construct ive dismissa l. ". The absence of an exp li cit threat in pcrernptory language seems 10 me not to be fata l. In the conte:--1 of a heated discussio n upon the access of ch ildren 1,1 the workp lace a question in the fom1, "W hen do you want to leave?". mig ht have been a use f ul (if hlunt) mea ns of focusing t he Applicant's a ll en tion on the vu lnerability of her posi tion. Here the discussion had moved beyond tha t. TI1e ques tio n was asked aga inst a background of her immediate superior crit ic ising her for he r lad, of respect and an amiouncement by him that he cou ld no longe r work with her. II cou ld only have been understood as giving he r the 4 June, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZET TE 145 opportu nity t o resign rath er tha n he dirn1issed. The Appl icant s,, understood the que st ion. Further if I be w rong 111 the view th at t he Ap plicant did 11 01 resign and was di sm issed, it seems lo me th at bv he r facs imile to the comp an y secretary d ated g Febru ary 1993 the Applicant ma de it perfectly plain that she was se ll ing aside the t ra nsact i,,n ,,f 3 February so far as it lay in her p ower 10 do so. and perfect ly plain that (h ea lth p enni nin g) she inten ded to resume work 0 11 JO February. There is n ow a res p ec ta bk line of English authority for the proposition t hat a re sign ati on given in heat or in a state of emotional stress or as a result of being j,,st led inlo a de.:ision by the em ploye r. may be w ithdrawn. see Sothern v Fnml,s Cl1:u lcsly ;u 1d Co I 1981 I IR LR 278 at 28 0 per Fox L.J., and Ba1t'l ay " O ty of Gl asgow DC [1983 l IRLR 3 13, at J 15. TI1e !alter case was not cited to Gray J in Bi.rrell v Au<;l r.il ian Nati onal A irli11-.1s C ommi ssio n 119841 9 IR IOI when Hi s Hono ur held (al 110 lo 111): "All this ha ving been said. I re gard the dec isi,,n in M anin v. Y eom(lJJ A gg reg ates Ltd as co nfined to ils fac ts . and 1l1erefore as not extend ing b eyo nd penni ni ng the w ithdrawal of words uUe re d io th e heat of the mo m ent, wh~n thosl.' w ords are retracted swift ly. A principle such as that does 110 1 at all '11 th" present case . The Appl ica nt did not sp eak in the heal of the mome nt . but n:Hhe r took t ht'.' co nsi dc: ri;!d and <l di h\! r:lh~ ~t ep ._,f giving notice to len ni nate his co 11t rac1 of emp lo\ 111<•11 1. Al the time w hen he handed ove r the Id ler. he did intend t,1 r~,ig n. His s ub scquc,,t rt: conside rat i..,n of thi~ su p. in the ligh t of what he t oo k lo be the reactio n ,1f TAA to it. does 11 01 app r,,~ imate 1,, the act ion of a pe rs o n who. realizi ng that he has sa id so 11 1.:1 hing in ange r wh ich he did no t intend. imme di at ely mak e, :1111e nds.". Bilrell 's rnse (ihid ) was 110 1 a ca ,e of res ignation in a distrcss.:d r ath er th an an angry stall!. It was not lli;!i:<s~m)' ft,r H i~ I l0 11 o ur to decide. and I do not un de rsta nd 1-1 is ll o n,,ur 10 have dec ided. that an emp loyee w hose dis tress i, real and <1hviou, an d wh oi.e em r lover jost le s her into n:s ign in g whilst in tha t stale m ay not w ithdraw the resignat ion un i lati: rolly on recoverin g hi:r cu mp os u r~ v..·hcr i: th i.! emp loy er will not be pr.,judiccd thereby. s,1ve to the extent that the advantag(' fl ow i ng from th i;! r.:~jgnation tvapt,r:lh!s . T hal i n 1n y opinio n was the situat ion here. The Ap pl icant\ d ut ies were being perfo ffll .:d by others, as d oub tless were the du ties ,lf :uiy ,lther employee who was ahse n1 . hut the posi tio n had 1w1 be~n ti ll ed . TI 1ere is me dical eviden ce that it woul d take the f\p pli,-anl until 10 rebruruy to pull h crsd f togdlt er. The likel ihood is t ha t the Appl i.:- anl was traumat ised by the even ts ,,f the ear lv pa ,1 of the fost week or February. By each of them taking cmp l,,yme nt , the Applica nt and her hu sb and were nh k to meet m,mgage p :1 ~mc 11 1s o n th eir mat ri mo n ial hom~ .. and h) gi ve th eir ~.fou ghtc r:-: w h~,1 th ..: y prcsu nw h ly co nsidered to he th t! advantage of <.1 priv ate sd hwd edu cati,Hl. "T he removal of the privilege or hringi ng the c hi ldren into th~ workplace after schoo l removed an esscntial brick in the ,lruc ture <11' their fa m ily life. I propose to follow the English authori t ie s. II fol lows th at in refusing to pe rn1 i1 the Applica nt t(1 resume her emph1yme11t. as by its so li citors kiter of R Fe hruary 1993 th e Rcsp,)ndent plai nly di d. the Respondent repudiated the co ntract of e mp loymen t and "d i"niss ed " the App licant w ith in the meaning or s. I 1.37( I) ,,r th e /nJ,w ,iol Relations A c 1 /990 . W h elher the m atter he analvscd on thL' hcls ls th at th i: <l ismi~sa l occun-ed on 3 February or on n:ce ipl 1lf the k na ,1 f 8 Fdin ,arv. 1he remedy of rei n~Hllcment is. in my oprnwn. i n~1ppn.)pri~1t.: , h is not necessary t o n 1le on the suhmissi ,) n 1,,)f ~fr Liv rn gslt)lh! f1.) r th~ Respon de nt th at rei nstateme.nt shou ld he o rdered 1>11 ly where the dismissal was so h:u,h and oppr~%ivc as to he an ahus< ,, r po\, cr. It is settled th at the p ow~ r to rcins la li: is a po w er h) h.: .::'l'.~r1.:i ~i.! d w ith caut ion. In Sloni m ,, Fell ows ( I 984) I 54 C 1.R 505 ,11 515 Wil""l J (w ith whom Mason and D ea ne JJ agreed} s ai d: "IT]he power lo direct 1ha1 A e mpl<l~' H is a WI)' drasti.: 11 n,: . . it w il1 a lways be a p,Jwer to h~ ~X\.! r cis.:-d wil h cau li1.rn h a,· ing regard to t he ci rcum sla n.:,:s of t he cas.:. ·11 1tre wil l he m any cas~s wh ere th e w ork i ng r l! lati \H 1shj p of .:mp l~ ,y~ r ;\nd ~mp h,yce is so dose tha t to impos e su.:h :, relat i1)n, hip \, y an award wou ld be quite destructiw of indu st ri al hann ony.". The workplace al West End is a small ,>ne . The Appl ica nt h a, rc:tumcd to a t~)nn~r fr iend a pre~..:nt whid1 sh"~ w;1s gi vi.: n las1 Christ mas . Th e present was a c,ompani,·d hv a hand wri nen 11clle in the ten ns "So rry I cannot stan d 1wo 1:1-.;cd pres~nts in 111 ~1 lwusc". The lady w hose gi t\ wa~ so r ~1u ri 1~d was ;1 wi tn.:- ss 1<.' r lh \! Responden t. Pursuant to a din:,tion of this C,,mm ission a c,,py of the witness statement had h~en supplied 1,1 the Appl ica nt befo re lh~ return of the gift T h~,~ is ev idence hefore me that lhe ..\ppli~ant had (p rior to her dismissal) hehawd olfonsively Ill a wom:111 w hom she beliewd had colllp lained abo ut the c1l11 d u~ 1 ,1 f her children ,m the premises. I in f;:r that the Appl ica nt continues t,l hear a sense of grievance no t only against th e Rcspondetll. but aga in, ! l~>n n er 1418 90- 14 colleagues to who m she allrihuted s om e responsibi lity for the loss of he r e mplo yme nt and the loss of t he opp ortunity to care for her daughters on the premi se s after schoo l. Further. reins ta tement of th e Applicant wou ld adversely effect each of two empl oyees who were transl ated from t he part -time to the ful l- time sta!T to fi ll th e vacan cy crea ted by the Appl ic ru1 1's departure. It s trains credu li ty to accept that they would treat the App licant's rctum otherwi se than w ith hostility. In my vi ew no more than a poiso nous wo rk env ironment can be created by an o rder fo r reinstatement. II is not in the public interest o r in the interests of tho se imm ediately con ce me d to order th e creation of s uc h an environment , and th ose are the factors which co ntrol the di scretion of s. I 1.38 (see s. 8.4(2 )) . For the same reasons I am satisfied that an order fo r r e• e mp loyment wo uld he in approp ri at e. I add (a) that I am not sat isfied that so me o ther positi on is now availab le, and (b) that , even if "avai lab le" d oe s not mean "presentl y available" and inc lud es a p os it ion show n to be avai lable in th;, future, I .im not sat isfi ed that Ms Co urtenay will lea ve in July and I am not sat isfied th at Ms McCormack's position w ill be fil led wh en she leaves for th e United States of America. The co nstruction of s. I L 38( 1Xc) is not w itho ut its ditli c ul ti cs . Re ad literally it req uires the co ntemporan eous fom ia tion of an op inion that "the di s mi s se d empl oye e should be re instated or re- emp loyed" (i nt rod uctory words) and an opini on t hat each of an order for reins tateme nt and an o rder fo r re-emplo yme nt "is inappropriate" (p aragraph (c) it se lf). In my opinion paragraph ( c) is to be read as if' s. 11.38( I) prov ided: "If the Co mm iss ion o n hearing an app licat ion fo r rel ief fro rn di sm issal considers that the dismi ssed employee sh ould be reinst ated or re- empl oyed. the C ommissio n may order - (a) th at the e mp loyee be reinstated by the e mp loyer in the emp loyee's fonner position witho ut prej ud ice to the fo m1 er emp loy me nt c ondit ion s. o r (b) if the Co mm ission cons iders th,11 rl!instalemcnt wo uld he ina ppropriate, fo r examp le, be~au se th e empl oye r co uld not practicall y rei nstate the empl oyee that the em ployee be re-e mp loye d by th e e mplo yer in so me o the r pos ition, if avail able, on any co nditions that ma y be de tenni ned by the Commiss io n, and . if t he Comm ission co n si ders that it wou ld be inappropri at e to order that the dismissed e mp loyee should be rei nstated or re- cm ployed. ma y order that the emp loyer pa y the emp loyee an amo unt of co mp en sa tio n dd enni ned by the Co mmi ss io n.". So co nstrued the p ow er at s. l l. J 8(1)(c) is tri gge red by the fi nd ings I have made in t hi s ma il er. II re ma ins to co nsider whet he r having regard to the interes ts of t he persons imme diately co n ce med and of the co mmun ity as a whole. an d ha vi ng regards to considerati ons of equ ity and good conscience (I do not re gard th ese as proceed ings for the reco very of mon eys as that phrase is u sed at s. 8.4(2)). it is appropriate to mak e an order for the payment of co mpensation , On bal ance I have come I(> the conclusion t ha t it is appropriate 10 make such an orde r. ln my view whether t he dismissal occurred on 3 February in the circum stanc es w hic h I h aw o utli n ed ab ove or by the Res pondent's refusal to Ncognize t he w ithdraw al of the res ig nat ion. th e dismi ssa l was unfai r. T he facto rs to wh ic h I have had regard in co m ing to that vi ew ar~ - (a) t he length of the Applicant 's s erv ic e, (b) the q ua li ty or the App li ca nt's se rvi ce, (c) th e circum stan ce that Me ss rs Sm ith and D av is, wh o app ear not to have e nt ered upon th eir di sc ussions w ith the A ppl icant wi th a v ie w lo dismissing her, seem lo me to have se iz ed on the "resig nat io n" as a co nven ie nt mf!ans of fr~ein g themsd Ves of a situatio n wit h whi ch th ey co uld not .:ope. (d) the consequences of the dism issal to th e A pp licant. I nm s a1i sfied also that th e A pp licant's conduct co ntributed , ignific rui t ly h ) her dism issal. Th e decis ion 10 exc lude her d aug hte rs fr om the workplace was one wh ich the e mpl oy er was en titled lo make. G iven the le.n gth of t ime du ring w hi ch the Appli can t has been a ll o wed lhe indul gence of caring for her children at work, industrial fo im ess rec1ui red tha t she be giwn rea so nabl e notice of the change in policy. If as I am now to ld. the Applicant had altered h er position .in the expectatio n th at the policy would cont inue it is argu ab le that the req ui rem e nt of rea so nable not ice was a matter of legal rather than indust rial obliga tion. But the Applicant was gi ven rea so nable notice. She was infonn ed th at she wo uld no l onger be able to ca re fo r her -- 1 of 2 -- 146 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE children after schoo l o n the premise~ a fu ll month before the resumpt ion of school. Jt was the App licant's omiss ion to come lo tem1s w ith t hat dec ision whic h gaw rise to the events of the first wee k of Fcbniary and caused the failure of what I think were well intentio ned dfo11s by 'vlr Davis to talk the matter through wi th the Applicant. In the circumstances it wou ld not in my view be cons ist en t with equ ity and good ,onscicncc to refrain from making a very substant ial re du ction in the co mp ensation to wh ich the Appl ican t would otherwise be ent it led. The Ap pli can t wa.s employed hy the Respondent for approximat el y I I 1/6 years. Her gross inrnme was $43 1.17 per week over the twelve month period prior to he r dismissal. Hav ing regard to s. 11. 38(3). the risk that th e Appl ican t might have been compelled to leave by her fa mily responsibilities in any eve nt, the risk that t.h.: Respondent 's imminent cha nge in loc ation to Sumner Park may haw ca used t he App licant 10 resign. and lhc con tributi on of the Applicant to her dismissal, I have decided to Mder that the Respondent pay to the App li ca nt the sum of $5,750.00. l).R . HALL. Chid Industrial Conunissioner. Appearances:- M r M. O'Su llivan ( instn ,cted hy S tev.:ns and Toz er. Sol icitors) fo r the Applicant. Mr R. Livingst one (instructed hy S ly &. W~igall Cannon and Peterson. Soli ci to rs) fN the Re spo ndent. Opuati vc Da te: Decision - Rdeased : 26 May 1993 ######llllll########l/###########11########################### [4 June, 1993 4 June , 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 147 -- 2 of 2 --