FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - alleged UNLAWFUL TERMINATION - whether termination at initiative of the employer - application dismissed - no point of principle. Industrial Relations Act 1988 (now Workplace Relations Act 1996) s 170EA. Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200. Daw v Flinton Pty Ltd (unreported, IRCA No. 1180 of 1997, R.D. Farrell, 24 October 1997). Carrigan v Darwin City Council, (unreported, IRCA No. 101 of 1997, von Doussa J, 20 March 1997) Woods v WM Car Services (Peterborough) Limited [1982] IRLR 347. Patricell v Glenis Stephenson Trading as L.J. Hooker Real Estate: unreported, IRCA No. 664 of 1995, R.D. Farrell JR, 18 December 1995). Ciampa v Licandro (unreported, IRCA No. 294 of 1995, Parkinson JR, 30 June 1995). ANDREW BARNES -v- CANON AUSTRALIA PTY LTD WI 1072 OF 1997 R.D. FARRELL JR 22 MAY 1998 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WI 1072 of 1997 BETWEEN: ANDREW BARNES Applicant AND: CANON AUSTRALIA PTY LTD Respondent court: RD FARRELL JR DATE OF ORDER: 10 september 1997 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application is dismissed. 2. The time for filing any application arising from Order 1 shall run from the date on which the reasons for decision are published. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WI 1072 of 1997 BETWEEN: ANDREW BARNES Applicant AND: CANON AUSTRALIA PTY LTD Respondent court: RD FARRELL JR DATE: 22 MAY 1998 PLACE: PERTH REASONS FOR JUDGMENT This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 ("the Act"). The application is for compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Andrew Barnes ("Mr Barnes") by the respondent, Canon Australia Pty Ltd ("Canon"). Reinstatement is not sought. Contentions Canon's primary contention is that there has been no termination of employment for the purposes of the Act, because Mr Barnes resigned. It is well established that "termination" for the purposes of Division 3 of Part VIA of the Act means "termination at the initiative of the employer": Mohazab v Dick Smith Electronics Pty Ltd (No 2.) (1995) 62 IR 200 at 203. Mr Barnes contends that while his termination was in form a resignation, it was in fact a termination at the initiative of the employer. Brief Factual Overview Canon is part of a world-wide group of companies engaged in the supply and servicing of office equipment. It has branch offices throughout Australia. Mr Barnes began work within the Perth office of Canon in April 1979. By 1991 he had been promoted to the position of Technical Supervisor, Systems Support group within that office. The term "Systems" is used within Canon to refer to computer systems. "Support" refers to product support, where service is provided to customers who have bought Canon products and who require assistance. Sometimes the terms "Service" and "Support" are used interchangeably. In August 1995, Mr Barnes was offered the position of Systems Support Supervisor within Canon's National Systems Support group. Mr Barnes had to relocate from Perth if he accepted the position, because the National Systems Support group was situated within the Head Office of Canon in Sydney. The position was offered to Mr Barnes by Mr Bill Burrell, the Assistant Manager, National Systems Support. At that time, the National Systems Support Supervisor's role was to coordinate, lead and control daily operations of National Support group. It was understood that Mr Barnes' essential function in the position would be to assist Mr Burrell. Mr Barnes says that he had reservations about moving to Sydney. However, Mr Burrell led him to believe that there were prospects for rapid promotion because the Manager, National Systems Support, Mr Taka Kushino, was due to be repatriated to Japan in April. If Mr Burrell was promoted to Manager at that time, then his position of Assistant Manager would be available for Mr Barnes. Mr Barnes says it was in that context that he decided to accept the Systems Support Supervisor position. The proposed place of the position within the organisational structure of the Systems Support group as at 31 August 1995 was as follows: The organisational structure within the Support area was apparently unusual for Canon. It was more usual for each Japanese manager to work in tandem with a local manager of equivalent seniority. The role of the Japanese manager was to communicate with the Japanese parent company, reporting to Japan on Canon's performance and providing information from the Japanese parent company on its decisions and policies. The Australian manager tended to have responsibility for implementing decisions and providing operational information and advice. In Mr Burrell's case, as Assistant Manager of the Support group he was junior to the Manager, Mr Kushino. Mr Burrell may have expected that, when Mr Kushino was replaced by a less experienced Japanese Manager, he would be promoted to equivalent status. Mr Barnes' experience after moving to Head Office was, to put it briefly, not as positive as he had hoped. Mr Kushino was replaced in April 1996 by Mr Atsushi Koisumi, another Japanese national. However, a new National "Service" Manager, Mr Ross Spencer, was recruited for the Support group in August 1996 from Unisys Australia, another computer company. As National Service Manager, Mr Spencer was given equivalent status to Mr Koisumi. Mr Barnes was to report to him. Mr Burrell was "side-lined" and began exploring the possibility of an early retirement package. Ultimately, Mr Barnes resigned from his position as on 3 September 1996. The form of Mr Barnes' letter of resignation, viewed in isolation, gives no hint that anything was amiss. The letter, dated 3 September 1996 and addressed to Mr Spencer, was in the following terms: "Dear Ross, In a decision not taken lightly, I would like to tender my resignation from the position of National Support Supervisor, C.S.C.P.O. I have just accepted an offer last evening from a rival company, advantages for me are an attractive salary, overseas travel and a senior position in a developing organisation, just too good to pass up. I have enjoyed working here in the National office, met many fine people and made some great friends. Ross, I wish you well in your new undertaking and trust you will understand my position and motivation in this decision. Yours sincerely, (signed) Andrew Barnes National Support Supervisor, C.S.C.P.O." However, according to Mr Barnes there was in fact no such offer from a rival company. Rather, he says he was effectively forced him to resign by a series of events since he moved to Head Office. He says he believed that Canon had betrayed his trust and destroyed his career. His resignation was, he says, a matter of pride. The claim of a rival job offer was, he says, bravado; he didn't want to let them think they had won. The letter of resignation was accepted by Canon at face value. His entitlements were processed and, given the purported reason for his resignation, he was permitted to leave immediately and paid a month's pay in lieu of notice. On the same day, Mr Barnes had sent an e-mail message addressed to "Infostaff" (who were effectively his working colleagues at Canon) which more accurately reflected his mood. It read: "From: Andrew Barnes To: Infostaff, National dudes, Date: 3 September 1996 2:28pm Subject: "I FEEL GOOD" It's been good: To escape from this madhouse is just the most exquisite feeling.....(sic) I hope you all enjoy working for the New Toy Division: Do you know how sometimes you get a song in your head and no matter what you do you can't shake it. I am now singing that James Brown song "I FEEL GOOD" So long pardoners A.B." Negotiations for Mr Burrell's early retirement were concluded in October, with Mr Burrell agreeing to complete certain projects before retiring. In the event, he was able to leave in December 1996. The position of "Assistant Manager, National Support" within the C.S.C.P.O. division was advertised in the "Sydney Morning Herald" on 26 October 1996, and was filled by Mr Glenn Paterson, a manager with whom Mr Spencer had worked at Unisys. To decide whether Mr Barnes' termination was at the initiative of Canon, I had to consider in some detail the matters which Mr Barnes contends left him in a position where he was forced to resign. In the Summary of Facts filed by Mr Barnes in preparation for the hearing, he summarised these matters as follows: · an allegedly deliberate decrease and change in his workload from July 1996; · occasions after July 1996 when the new National Service Manager, Mr Spencer, allegedly made derogatory comments about Mr Barnes', including comments about his appearance which were accompanied by physical touching or "prodding"; and · advice from a fellow employee in about August 1996 that the General Manager, Mr Michael Glanger (to whom Mr Spencer reported) "detested" Mr Barnes. To enable these matters to be viewed in context, I will review the evidence dealing with Mr Barnes' history in Head Office. February to July 1996 While the negotiations for the position occurred in August 1995, Mr Barnes' did not arrive at Head Office until the beginning of February 1996. At one point in his evidence, Mr Barnes claimed he had had a "great time" at Head Office until about June, and got on well with his co-workers. The weight of the evidence suggests, however, that the period during which he was adjusting to his new role at head office was a difficult one for Mr Barnes. Partly this was due to reasons not directly related to his work. He was having to deal with some personal difficulties arising from the recent death of his father. There was also evidence that he had difficulties adjusting to living in Sydney. Mr Burrell recalls that Mr Barnes spoke to him about the differences between Perth and Sydney. He had said that Sydney was a shock to him, and that it was a noisy, crowded and dirty lifestyle. Mr Barnes noted in his evidence that his salary in Sydney was the same as he had received in Perth. Given the higher cost of living in Sydney, he felt he was effectively taking a salary cut to work in Sydney. Mr Barnes also says he felt abandoned on arriving in Sydney. He complains that when he arrived in Head Office he had no workstation or computer. He says it took three months for Canon to arrange business cards for him; this task was apparently in the hands of Mr Glanger's secretary. Mr Barnes also believed that some of his entitlements arising from his relocation were withheld from him. He says, for example, that he paid his own airfare from Perth to Sydney and never received a reimbursement. These matters were not clarified until the hearing, and it seems that to some extent Mr Barnes was mistaken as to his entitlements. More generally, Mr Barnes found the Head Office to be something of a "madhouse". Mr Burrell confirmed that he was always amazed by the state of disarray at Head Office. There had been, he says, an accumulation of detritus over four or five years, so that it was "close to a rubbish tip". It was part of the culture of Head Office which was not, for example, shared in the Melbourne office from which Mr Burrell had come nor, it would appear, in the Perth office. The Head Office was also in an unsettled state for other reasons. In the interim between Mr Barnes' accepting the position and arriving at Head Office, Canon's Consumer Products division had been merged with its Computer Systems division, effective from August 1995, as part of a restructure of its operations. The National Support group now formed part of the merged C.S.C.P.O. division. Overseeing the merged division was Mr Michael Glanger, who was General Manager, C.S.C.P.O. division. He in turn reported to Mr Hara, Canon's chief executive. There was evidence that the merger produced predictable personal tensions within the newly merged Computer Systems and Consumer Product Operations division ("C.S.C.P.O."). There was also inevitably a period of adjustment while the operations of the merged division were reviewed and standardised with a view to maximising the potential efficiencies. Mr Barnes offered a different perspective on the merger, saying that the transition had not been tough, and that there had been very little upheaval, because everyone had their own responsibilities. There was, he said, very little merger in reality. It may be that it was the need to make the merger a reality in the context of the Support group which motivated Mr Glanger to make some of the decisions he ultimately made. Mr Glanger was not happy with the performance of the Support group, in which Mr Burrell was the most senior Australian manager. Each year a leading Australian personal computer magazine would conduct a survey to gauge opinion concerning the back up service and support offered by various manufacturers of computer printers. In 1995, Canon had performed poorly in the survey, ranking in the bottom third. Mr Glanger had been concerned about the result, and it had also generated concern within Canon's Japanese parent company. Mr Glanger explained in his evidence that bad service hurts brands and, ultimately, harms sales. Mr Glanger had brought his dissatisfaction to the attention of Mr Burrell and made known his expectation of an improvement in the service and support offered by Canon. In the meantime, Mr Burrell and the Support group were not in favour with Mr Glanger. Mr Barnes, on his arrival, was understood by Mr Glanger to be Mr Burrell's assistant. Mr Barnes says that he had difficulties dealing with Mr Glanger. He gave evidence of various incidents where Mr Glanger is said to have treated Mr Barnes dismissively. Mr Barnes says he was always very argumentative, always "fencing with him", "waiting to pounce". Mr Glanger disputes the detail of some of those incidents. Mr Mills, Canon's Human Resources Manager, observed that Mr Glanger was a formidable man, with a tendency to over-reward achievement and be harsh with failure. He also says that Mr Glanger was not even-handed in his treatment of the employees. As an example, Mr Barnes gave evidence about a meeting attended by Mr Glanger, Mr Burrell, Mr Barnes and Mr Andrew See, the Help Desk Technical Coordinator. Mr Glanger was considering four letters of complaint, and singled out a letter in response for criticism. According to Mr Barnes, when Mr Glanger learnt that Mr See had written the letter, rather than Mr Barnes, he complimented Mr See on a fine letter. Mr Glanger does not recall such an incident. Mr Glanger says his dealings with Mr Barnes were infrequent. His dealings were primarily with Mr Burrell, Mr Burrell's Japanese Superior and, from August 1995, Mr Spencer. If he had a question about any aspect of the Support group, he would address it through them, rather than directly to the relevant employee. Considerable evidence was led concerning the nature of Mr Glanger's role with Canon. He had thirteen managers reporting to him. As General Manager of the C.S.C.P.O. division, he was also involved in considerable work with Canon's managerial committees. The perceived problems with the performance of Mr Burrell and the Support Group were therefore only one of many issues he had to deal with. I accept that Mr Glanger's unhappiness with the performance of the Support group and Mr Burrell may have been reflected in his infrequent dealings with Mr Barnes, who was a member of the group and who functioned as Mr Burrell's assistant. It seems to me improbable, however, that Mr Glanger would have formed any particular antipathy to Mr Barnes, and that he would have intentionally singled Mr Barnes out for harsh treatment. Put bluntly, Mr Barnes was not senior enough to warrant Mr Glanger's attention. It is possible that Mr Barnes might have been linked in Mr Glanger's mind with Mr Burrell. It does not follow that any such link was irrevocable or that Mr Glanger had made any considered assessment of Mr Barnes' performance as an individual. When the computer magazine's 1996 survey was published, it revealed that perceptions of Canon's performance had not improved; there had been a 0.75% increase in customer satisfaction. At a meeting attended by Mr Glanger, Mr Burrell and Mr Barnes, Mr Glanger expressed his disappointment to Mr Burrell in strong terms. Mr Glanger recalls that Mr Barnes pointed out that there had been a slight increase in the result, and asked why Mr Glanger was worried. The impression I got from the evidence was that the comment had been an attempt at "gallows humour" on Mr Barnes' part. Clearly it was not appreciated by Mr Glanger. It was only one comment in the context of a longer meeting, but it was a matter Mr Glanger was later able to recall. Mr Glanger left the meeting feeling that his concerns were not being taken seriously, and that Mr Burrell didn't appreciate the importance to Canon of the Service group's performance. In Mr Glanger's view, the performance of the Service group was an important component in Canon's marketing strategy. He believed the problems with the Service group's performance arose from its inability to keep up with the rapidly increasing volumes of products being sold by Canon. It seems clear that Mr Glanger decided to take positive steps to cause the Service group to perform to his satisfaction. July to September 1996 By early July, Mr Glanger had offered the position of National Service Manager to Mr Ross Spencer. He gave Mr Spencer the task of melding together the two previous components of the Service (ie Support) group and to co-ordinate the State Service groups into one cohesive unit. He was to have a free hand and be amply resourced. He was to prepare the Service group for larger volumes as Canon sold increasing numbers of low-margin products. The ultimate function of the Service group was to protect the brand - the customer was always to be right. Mr Burrell says that just before August 1996, it became clear that he was "at variance" with Mr Glanger. Mr Spencer began work at Canon on 5 August 1996. Mr Burrell describes himself as being "moved out of the loop" with Mr Spencer's appointment. Mr Barnes, for example, was to report to Mr Spencer rather than to Mr Burrell. As is apparent from the organisational chart shown earlier, Mr Barnes originally reported to Mr Burrell who in turn reported to Mr Kushino (and later, Mr Koisumi) and, through him, to Mr Glanger. Mr Burrell says that he viewed Mr Spencer's appointment as the death knell for his career, but it was not clear to him what it meant for Mr Barnes. Mr Barnes' first conclusion was that his hopes for imminent promotion and increased remuneration were dashed. More generally, Mr Barnes says that he interpreted Mr Spencer's appointment as a vote of no confidence by Mr Glanger not just in Mr Burrell, but also in himself. It is apparent from Mr Barnes' evidence that he saw himself as Mr Burrell's assistant and saw Mr Burrell as his mentor. Though it was not clear to Mr Burrell, it seems to have been Mr Barnes' assumption that his fortunes were irrevocably linked to Mr Burrell's. In my view this assumption became somewhat self-fulfilling. In the first few days after starting with Canon, Mr Spencer made a point of going around to meet the members of the group to informally introduce himself to them on an individual basis. He recalls speaking with Mr Barnes for about ten minutes on the first day. He says that Mr Barnes was very "low-key", and not forthcoming with information. According to Mr Spencer, Mr Barnes told him that everything had been under control within the group, and that he didn't know why Mr Spencer had been appointed. Mr Spencer also convened weekly meetings of the group. As he recalls it, Mr Barnes tended to sit back and not participate. Mr Barnes agrees that he didn't say much to Mr Spencer. He agrees he was reserved, but says he is a reserved person by nature. He does not accept that he was uncooperative. Mr Barnes pointed to minutes showing his participation in weekly meetings of the group initiated by Mr Spencer. He felt he had to be guarded in his dealings with Mr Spencer. He didn't know where Mr Spencer fitted in, and was concerned that he may have been appointed to be Mr Glanger's "hit-man". On the Monday that Mr Spencer arrived at Canon, he asked Mr Barnes to organise a computer for him to use. Mr Barnes didn't act on that request. He says he was not authorised to spend any funds. He also remarked in his evidence that no-one "took pity" on him when he was trying to get the things he needed to do his job when he arrived in Sydney. Mr Spencer was dissatisfied by Mr Barnes' lack of action. He recalls that Mr Barnes claimed he had been busy, and could do it on Wednesday. Mr Spencer responded that that was not good enough. Mr Barnes recalls Mr Spencer going on to say "My expectations haven't been met. You've failed." While Mr Spencer doesn't recall this, I accept that words to that effect were said. Mr Spencer ultimately obtained a spare computer which had belonged to a sales representative. In the month following Mr Spencer's appointment, he found Mr Barnes to be very stand-offish. He found it hard to have a dialogue with him. He could see Mr Barnes wasn't happy, and called him in for another one-on-one meeting. He asked Mr Barnes how things were going, whether he was happy and whether there were any issues he wanted to raise. Mr Barnes folded his arms and pushed himself back from the table, responding that he was "fine" and saying that he had no "issues". Mr Barnes says that he didn't make any complaints to Mr Spencer, again because he wasn't sure where Mr Spencer fitted in. He says, however, that he did have "issues" concerning his treatment after Mr Spencer's appointment was announced. Mr Barnes claims that his work load began decreasing after the announcement of Mr Spencer's recruitment in July 1996. In the period between that announcement and Mr Spencer's commencement, Mr Barnes suspects that longer-term work was held back from him and Mr Burrell until Mr Spencer began work. If that were the case, it does not strike me as surprising or unreasonable to wait for Mr Spencer to allocate such longer term projects. Mr Barnes duties as supervisor were to co-ordinate the day to day operations of the National Support Group, and included dealing with customer complaints, organising training of staff and supervising other group employees in the National and State Offices. Mr Barnes also worked on various projects. He had, for example, recently been involved with a "board refurbishment" project. He had taken the initiative of organising a local source for refurbishing "boards" (which I understand to be computer components), resulting in significant cost savings to Canon. That program had come to an end, however, so that Mr Barnes had more time available. After Mr Spencer's arrival, Mr Barnes had decreased contact and communication with the State Support Coordinators, as Mr Spencer became involved in this area, in an effort to familiarise himself with the State offices' operations and personnel. No work was forthcoming from Mr Burrell, who had been moved aside. Telephone and e-mail contact dropped away; Mr Barnes' perception was that work was being redirected from Mr Glanger's secretary to "one side". Mr Barnes spent an increasing amount of his time involved on the "Infoline", rendering direct support to customers. This had always formed a part of his duties. Difficult customer problems were routinely "escalated" to senior staff within the group, such as Mr Barnes. However, heavy customer demand, staff shortages exacerbated by illnesses and his increased availability meant that it now formed a greater proportion of his daily work. Mr Burrell confirms that Mr Barnes wasn't getting much work, and seemed to be dealing less with the coordinators in the State offices and dealing more with complaints; Mr Burrell assumes Mr Spencer was dealing with the States more. While it was appropriate that Mr Barnes deal with complaints, it was not in Mr Burrell's view the only thing he should have been dealing with. Canon claim that there was work for Mr Barnes to do, and initially nominated three projects which he would have been working on had he stayed. In the course of the hearing it became apparent with regard to one of these, the Extended Warranty program, that Mr Barnes had had little involvement with the project up until the time he left. The other projects were the Electronic Warranty Claim Process and the C.S.C.P.O. Canon Authorised Service Agent ("C.A.S.A.") Procedure Manual. Mr Barnes and Mr Burrell had done some initial work exploring the possibility of an Electronic Warranty Claim Process, which would have had the capacity to enhance efficiencies by modernising the claims system through electronic communications with Canon's dealers. Mr Barnes said he and Mr Burrell had "road-tested" a couple of systems, but that little was done after the middle of August 1996 because they did not have approval to go further on the project. The next step was to buy the software, which required approval for the purchasing costs. Mr Glanger considered the Electronic Warranty Claim Process to be a pet project of Mr Burrell's, and says that he didn't get any requests for further funding on the project. From Mr Barnes' point of view, there was nothing more that he could do on the project pending approval. It would have been Mr Burrell's role to pursue the relevant approvals and, for whatever reason, approval was not forthcoming. The review and reissue of a C.A.S.A. Procedure Manual was originally an initiative of Mr Barnes. After the merger of the Computer Systems and Consumer Products divisions, there were two manuals in existence, inherited from each division. The manuals were designed for the assistance of Canon's service agents and the Systems C.A.S.A. manual had been a useful tool for the Systems Support group in its dealings with the agents. However, the Systems C.A.S.A. manual was not always consistent with the Consumer Products C.A.S.A. manual. Mr Glanger had therefore instructed that the manual not be used, in order to avoid confusion, but in practice it was still relied on. Mr Barnes promoted the idea of translating the two existing manuals into a single manual for the merged division. A print-out of an e-mail in which Mr Barnes was promoting the idea in April 1996 was tendered into evidence. It is not clear to me how far Mr Barnes got in implementing the idea. However, when Mr Spencer nominated a team of four people on 2 September 1996 to design and implement a C.A.S.A. procedure for the approval of service agents for the merged division, Mr Barnes was surprised to learn that the team did not include him. The C.A.S.A. Approval Procedure appears to have been understood by all concerned to have been linked to the C.A.S.A. Procedure Manual. The expectation that Mr Barnes would have been involved was sufficiently obvious that others within the group called Mr Barnes to enquire why he was omitted. Mr Burrell is of the view that Mr Barnes would have been very suited to the task of developing a new Procedure Manual. Mr Spencer agrees that he would have expected Mr Barnes to be involved in the manual. However, his decision as to the make-up of the team to develop the approval procedure was made in the context of a forthcoming State Support Coordinators' Conference which was scheduled to begin later in September. He therefore took the opportunity to nominate three coordinators from the State officers to the team in order to give them the opportunity to work together on a project in the days surrounding the conference. The project happened to be the development of an Approval Procedure. Mr Barnes did not make Mr Spencer aware at his disgruntlement at being omitted from the team. The fact that Mr Barnes was not on that team did not mean he would not be involved in the development of the C.A.S.A. procedures manual. Mr Spencer concedes that there may have been a reduction in the volume of work directed to Mr Barnes, but denies it was part of a deliberate strategy. Mr Spencer says there was still a lot of work that had to be done, adding that he would have gladly given Mr Barnes more work had he been asked. It is not surprising that there would have been a disruption to the usual work patterns following the appointment of Mr Spencer. Mr Spencer had a mandate to reorganise the group. In the short-term, as part of the process of familiarising himself with practices and personnel, it is understandable that he would have taken responsibility for day to day work which he would not have wished to continue performing over the longer term. In the short-term, this meant that Mr Barnes, who usually had responsibility for coordinating day to day operations, had less to do. However, it was not reasonable for Mr Barnes to have assumed, without having discussed the matter with Mr Spencer, that the changes to his work patterns over the course of a single month would be permanent. Mr Barnes points to the fact that, once he and Mr Burrell had left, their original functions were performed solely by Mr Spencer and Mr Patterson (though the roles were redefined so that Mr Spencer was doing some new tasks and Mr Paterson was doing some of Mr Burrell's tasks as well as Mr Barnes'). One might conclude, therefore, that when Mr Spencer, Mr Burrell and Mr Barnes were employed, there were three people employed but only sufficient work for two. It does not follow that Mr Barnes would inevitably have had to go. Mr Glanger's view was that it was up to Mr Spencer to restructure the Support Group as he saw fit to maximise its performance. What happened to Mr Burrell and Mr Barnes was up to him. Mr Glanger also commented that, given the resources made available to Mr Spencer, it wouldn't have mattered if there were three rather than two people performing those roles. One suspects that this was a short to medium-term view. Even so, had Mr Barnes remained, he would have been well-placed to fill the role eventually filled by Mr Paterson after Mr Burrell's early retirement was agreed. Mr Barnes says that Mr Sean Tudor told him in August 1996 in a social context that Mr Glanger "detested" Mr Barnes. Mr Tudor, who was a Support Assistant in the National Office, did not give evidence. Mr Glanger denies knowledge of why Mr Tudor would have said such a thing. The basis for Mr Tudor's comments was not clear. The comment had the effect of confirming Mr Barnes' fears that Mr Glanger held him in low regard. As I have indicated earlier, it seems to me improbable that Mr Glanger would have formed any particular antipathy to Mr Barnes. Even if he had, it would not follow that he would intervene in the micro-management of the Support group to victimise Mr Barnes. I accept that Mr Barnes' future was primarily in Mr Spencer's hands. I have referred already to some of the dealings between Mr Spencer and Mr Barnes. Mr Barnes also complains about other incidents involving Mr Spencer. On one occasion shortly after Mr Spencer's arrival, some of the Support group were having a beer in the office after work to mark the departure of one of their colleagues. Mr Barnes says that Mr Spencer walked in to the room, saw what was happening and said, directing the words toward Mr Barnes, "Not a good career move". Mr Barnes says he found this threatening. Mr Spencer says it is "highly, highly unlikely" that he made such a comment. I accept, on balance, that the comment was made. In the course of his second week at Canon, Mr Spencer touched Mr Barnes' chin and mentioned that Mr Barnes had a "bit of a double chin happening". Mr Barnes says he again found this quite threatening. Mr Barnes recalls that on another occasion he was carrying reams of paper in order to restock the office's printers. He says Mr Spencer had instructed him to perform the task, and that while he felt it was somewhat "below par" given his position, he didn't think it appropriate to refuse on the ground that it was "not my job". Mr Spencer says he did not expect Mr Barnes to load the paper into the printers himself, but had simply asked Mr Barnes to make sure it got done. I accept Mr Spencer's explanation. While carrying the paper, Mr Barnes encountered Mr Spencer, who allegedly prodded him in the stomach and made a derogatory comment, the content of which Mr Barnes no longer recalls. Mr Barnes says he was very angry, and immediately reported the incident to Mr Burrell. Mr Burrell recalls Mr Barnes telling him that some words had been exchanged between Mr Barnes and Mr Spencer and that Mr Spencer had poked him in the chest. He says that Mr Barnes appeared "rattled" after this incident with Mr Spencer, and confirms that Mr Barnes told him he felt like he was being intimidated. Mr Burrell's response was that there was very little he could do about it. He believes he probably told Mr Barnes to see Mr Andrew Mills, who was the National Manager, Human Resources. Mr Burrell did not raise the matter with Mr Spencer. Mr Spencer denies he ever touched Mr Barnes. He says he would never touch an employee, and that he had learnt very early in his managerial training that it was unwise to touch employees because "lots of things can be misconstrued". I accept Mr Barnes' evidence concerning the alleged touching and inappropriate comments made by Mr Spencer. Mr Burrell's evidence confirms that Mr Barnes complained about it at the time, and seemed upset. It also seemed to me that Mr Spencer was anxious and uncomfortable during that part of his evidence. Mr Mills recalls Mr Barnes coming to see him in mid-August 1996. Mr Barnes was upset and told Mr Mills he was leaving, asking "What do I have to do to escape this madhouse?". Mr Barnes' expressed dissatisfaction to Mr Mills about Mr Spencer, which Mr Mills recalls as being chiefly directed at Mr Spencer's perceived incompetence with computer hardware. Mr Barnes told Mr Mills about an incident between them concerning the sourcing of a computer for Mr Spencer. Surprisingly, Mr Barnes didn't mention that Mr Spencer had touched him, nor that he felt threatened by Mr Spencer's inappropriate comments about his weight. Mr Barnes also asked Mr Mills about the manner in which Mr Spencer had been recruited by Mr Glanger, apparently in order to better assess the extent to which Mr Spencer was allied to Mr Glanger. Mr Mills says he told Mr Barnes that he understood that morale in the Support group was low following the merger, but said he was sure things would improve now that Mr Spencer had been appointed, once he settled in. Mr Mills also asked Mr Barnes whether he had another job to go to. On learning that he didn't, Mr Mills told him he would be silly to leave before he had another job. Mr Barnes claims that Mr Mills advised him that Canon was unlikely to require Mr Mills to work out his notice if he was going to work for a rival company. Mr Mills says he definitely would not have volunteered the proposition and says that anything he said would have been in an answer to a specific query. Mr Mills raised the option of transferring from the C.S.C.P.O. division to another division within Canon, assuming another suitable position could be identified. Mr Barnes asserted that Mr Glanger would never agree to a transfer. Mr Mills did not contradict him, though Mr Mills says he can think of occasions where employees had transferred in and out of Mr Glanger's division and Mr Glanger says that transfers are not unusual from his division. Instead, Mr Mills raised the possibility of approaching Mr Hara directly about a transfer. He also pointed out the possible ramifications of doing so, noting that Mr Glanger had Mr Hara's ear, and that going directly to Mr Hara might make Mr Barnes unpopular with Mr Glanger. Mr Barnes concedes however that, given that the only other option was resignation, there would have been no "down-side" in pursuing the option of an inter-divisional transfer through Mr Glanger. Mr Barnes reiterated that he was determined to go, in any event. Mr Barnes says that the incidents where Mr Spencer made derogatory comments, prodded and touched him wounded his pride and left him feeling humiliated. He felt it clearly conveyed an intent on Mr Spencer's part to get rid of him. He felt there was nothing he, Mr Burrell or Mr Mills could do about it; he felt he had no right to redress. It could not have been clear to him that Mr Mills could offer no redress, given that he did not raise the matter with Mr Mills. It is also significant that he did not record his objections with Mr Spencer. Mr Spencer's conduct, as I have found it to have occurred, was by no means flawless. He was, however, in a difficult position. He was faced with conduct on the part of Mr Barnes which he could reasonably have interpreted as passive hostility or resistance to his authority. At the same time he had to establish effective working relationships and the expectation of higher standards of performance within the group. His response to the computer incident can be seen in that context. He tried talking personally with Mr Barnes, to no avail. His gauche comments about Mr Barnes' weight may have been intended as mere teasing on his part. There was evidence that Mr Barnes had gained weight since he had moved to Sydney; Mr Burrell attributed it to stress. Clearly, and not-surprisingly, it was a matter of sensitivity to Mr Barnes. If Mr Spencer's banter was an attempt to put their relationship on a more relaxed footing, as I suspect it was, then it was an abject failure. While they may not have seemed significant to Mr Spencer at the time, such comments, especially with accompanying physical contact, are inappropriate within a working relationship where they are unwelcome to the recipient. While they are not a form of harassment expressly prohibited by law, Mr Spencer's uncomfortable response to the proposition that he had engaged in such conduct reflects his recognition in retrospect that he should have recognised that such conduct would have been inappropriate. Had the conduct continued after a clear indication, whether direct or indirect, to Mr Spencer from Mr Barnes that it was unwelcome, then it would have been a more significant factor in my determination. As it is, I am inclined to the view that Mr Spencer's behaviour was thoughtless rather than malevolent. I am reinforced in that view by a consideration of Mr Spencer's relationship with Mr Burrell. Mr Spencer says it was not in his interests to lose the services of Mr Barnes or Mr Burrell, given their accumulation of experience and knowledge. His dealings with Mr Burrell were consistent with that approach. Mr Mills notes that Mr Burrell didn't seem to have a problem with Mr Spencer on a personal level. This was confirmed by Mr Burrell in his evidence. Mr Spencer says that Mr Burrell would have been his first choice to take on the role ultimately filled by Mr Patterson. It was not until Mr Burrell decided he would prefer to take early retirement rather than accept what he regarded as a demotion that Mr Spencer took steps to recruit someone else for the position. If Mr Spencer was capable of establishing a good relationship with Mr Burrell, who was the most directly affected by his arrival, it suggests that the failure to establish such a relationship with Mr Barnes was at least partly due to Mr Barnes' behaviour. Mr Barnes did not resign immediately after his meeting with Mr Mills. He says that prior to his departure he had a week in "neutral" gear, where his work had especially dropped away. He did not raise it with Mr Spencer. With the announcement of the team to work on the manual, Mr Barnes felt he would have nothing to do at the forthcoming State Support Coordinators' conference. He was embarrassed at that prospect. Again, it was not a matter he raised with Mr Spencer. He decided he would resign before the conference, about a fortnight after his meeting with Mr Mills. The Timing of the Advertisement for the New Assistant Manager A facsimile from an advertising agency to Canon was tendered into evidence. It showed the advertising proof for the advertisement ultimately placed by Canon in the Sydney Morning Herald on 26 October 1996. The facsimile was potentially significant because, while it showed a proposed appearance date for the advertisement of "26/10" and a "folder" date of "21/10/96", the dateline imprinted at the top of the page by the facsimile machine showed the time received as "31/08/96 01:57". If that were in fact the date on which the proof of the advertisement were submitted to Canon, then Canon would appear to have been arranging to replace Mr Barnes before he had resigned. This would provide significant circumstantial support for the proposition that, as at 31 August 1996, management at Canon were intending to procure the termination of Mr Barnes' employment. However, Canon led additional evidence in support of an innocent explanation for what they said was incorrect date imprint from the facsimile machine. I accept that explanation and accept that the instructions to place the advertisement were not received by the advertising agency until 23 October 1996. Whether There Was a Termination at the Initiative of the Employer In Daw v Flinton Pty Ltd (unreported, IRCA No. 1180 of 1997, R.D. Farrell, 24 October 1997), I examined the cases setting out the law on how the courts should determine whether there has been a "termination at the initiative of the employer" for the purposes of the Act. I adopt that analysis for the purposes of this decision. The applicant bears the onus of proving that there has been a termination at the initiative of the employer. An important factor identified by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2.) was the fact that: "...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." In Carrigan v Darwin City Council, von Doussa J quoted and expressly applied the following principles articulated by Brown-Wilson J in Woods v WM Car Services (Peterborough) Limited [1982] IRLR 347 at paragraph 17: "In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee... To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the Tribunal's function is to look at the employer's conduct as a whole and determine whether it is such that it's effect, judged reasonable and sensibly, is such that the employee cannot be expected to put up with it... The conduct of the parties has to be looked at as a whole and its cumulative impact assessed..." Having cited Mohazab, von Doussa J went on to state that, in his view, it is in accordance with the approach of the Full Court to hold that the termination of an employee' employment was at the initiative of the employer for the purposes of the Act if there has been a constructive dismissal arising from the breach of the implied term as to trust and confidence. That approach is consistent with an earlier statement of Parkinson JR in Ciampa v Licandro (unreported, IRCA No. 294 of 1995, 30 June 1995 at page 3) that the definition of termination of employment at the initiative of the employer includes: "...circumstances where an employee's working life is made plainly miserable by a supervisor or another employee, with a consequence that she or he leaves the employment. Such a termination of employment could not be described as being at the initiative of the employee and in my view is plainly a termination at the initiative of the employer in the sense contemplated by section 170EA of the Act". The onus of proving that the termination was at the initiative of the employer rests with Mr Barnes. I am satisfied on the evidence that Mr Barnes' decision to resign was essentially voluntary. It was a real and reasonable option for him to remain. There was not, in my view, conduct on the part of the employer that he "could not be expected to put up with". To the extent that Mr Glanger and Mr Spencer behaved inappropriately, I accept on the evidence that it was not done with the intention of procuring Mr Barnes' resignation. I also find that had Mr Barnes articulated his concerns to Mr Spencer it is probable that Mr Spencer would have taken steps to address those concerns. Finally, as I have observed before (Patricell v Glenis Stephenson Trading as L.J. Hooker Real Estate: unreported, IRCA No. 664 of 1995, R.D. Farrell JR, 18 December 1995), when a termination that has genuinely been regarded by an employer as a voluntary resignation is found by the Court to be a termination at the initiative of the employer, the employer is placed at a significant disadvantage in meeting the requirements of the Act. The Court should not, therefore, make such a finding lightly. This is particularly so where the employer's perception that the resignation is voluntary has not been challenged by the employee in the period surrounding the termination or where, as in this case, the employee has actively misled the employer about the reasons for their resignation. Conclusion I have found, therefore, that Mr Barnes' employment was not terminated at the initiative of the employer and have ordered that his claim under Section 170EA be dismissed. I certify that this and the preceding twenty four (24) pages are a true copy of the Reasons for Judgment herein of the Judicial Registrar RD FARRELL Associate: Dated: 22 May 1998 Counsel for the Applicant: Ms V Bladen Solicitor for the Applicant: Michell Sillar McPhee Representative of the Respondent: Ms E Mackey Chamber of Commerce & Industry (WA) Date of Hearing: 27, 28, 29 August & 10 September 1997 Date of Judgment: 10 September 1997 Date of Reasons: 22 May 1998