IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 2101 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: JOHN ERIC HUDSON Applicant A N D RICEGROWERS CO-OPERATIVE LIMITED Respondent Reasons for Judgment 27 March 1995 PARKINSON JR This is an application pursuant to S170EA of the Industrial Relations Act 1988. The applicant alleges that his employment was terminated by the respondent without valid reason. The applicant seeks an order for compensation. The following witnesses gave evidence in the proceedings: John Eric Hudson - the applicant Rodney John White - Human Resources Manager for the respondent Malcolm Adey - Victorian Distribution Manager for the respondent I have earlier considered the factual background to this application in my decision in relation to a preliminary argument on jurisdiction, delivered ex tempore on 18 March 1995. I therefore set out only limited facts in the course of this decision, however for a full understanding of the factual background the earlier decision ought be referred to. In my earlier decision I dismissed an application by the respondent that the application be dismissed because there was no termination of the employment at the initiative of the employer. I found that even had there been notice given of termination of the applicant's employment on 28 October 1994, that notice and termination had been withdrawn by the respondent with the consent of the applicant as evidenced by his return to work on 7 December 1994. The respondent's application that there was a want of jurisdiction was nevertheless dismissed because there was some evidence from the applicant which may have led to a finding that there was a constructive dismissal on or after 12 December 1994. I felt it necessary to hear the case in its entirety before deciding this question. The respondent did not run a case in the alternative, that is that there was a valid reason for the termination of the employment. This matter therefore remains to be decided upon the question of constructive dismissal. In this respect application was made by the applicant for leave to amend the application filed on 3 November 1994 to include an alleged termination of employment on or after 12 December 1994. This application was not opposed. Leave was granted and an extension of time for the filing of any application if required was granted. After the relationship between the applicant and his supervisor Mr Adey had broken down, various meetings were held with the applicant and senior management, including human resources management, where I am satisfied that genuine efforts were made by the respondent in an attempt to resolve the situation. At a meeting which occurred on 5 December 1994 a process was implemented whereby monthly reports were to be completed by the applicant and his supervisor. A revised and temporary duty statement was produced and agreed. Further, the applicant was invited to contact senior management directly if he encountered any difficulties at all. The respondent agreed to treat the period of absence to 7 December 1994 as continuous employment and pay the applicant for that period. Following this meeting the applicant returned to work. There is no evidence in these proceedings that the conditions agreed to on 5 December 1994 were not met. I am satisfied that the respondent's managers did all that was open to them to attempt to facilitate a reconciliation in the breakdown of the relationship between the applicant and his supervisor Mr Adey. They further made it clear to both persons that the only authority to terminate the applicant's employment rested with senior management and not with Mr Adey. The evidence is clear that the fundamental source of concern and distress for the applicant after his return to work on 7 December 1994 was his supervisor's attitude towards him and in particular the latter's 'strictly business' approach. It is this attitude, together with three other matters, which are relied upon by the applicant as constituting circumstances resulting in constructive dismissal. Those matters were: 1. That Mr Adey wrote notes (on three occasions) to give the applicant instructions rather than speak to him personally, and that Mr Adey ceased to respond to pleasantries or to speak to him other that when absolutely necessary. 2. That Mr Adey checked on his starting and finishing time on an occasion when he attended other of the respondent's premises to conduct a stocktake. 3. That he observed Mr Adey check the contents of a bill of lading to ensure that the applicant was complying with a direction as to lead times. At the trial of this matter the applicant's counsel relied further on the obligation of the respondent to take steps to ensure that the applicant was not placed in a situation which resulted in his continued employment becoming untenable. It was her submission that the respondent ought to have appreciated that the supervisor's attitude would be hostile, that this would have a negative effect upon the applicant and that he would be unable to continue to work for the respondent, and should have, but did not, take steps to alleviate this situation. I am of the view that the evidence in the proceedings was to the contrary. There was an appreciation by the respondent that the relationship between the applicant and Mr Adey was going to be tense, and that this likelihood was brought to the applicant's attention prior to his recommencing employment. The evidence was that Ms Glennis Couprie, a Human Resources Officer of the respondent, raised this with both the applicant and Mr Adey at the meeting on 5 December 1994. Whilst I am satisfied that the applicant made all efforts to be amicable, and that this effort was not reciprocated by Mr Adey, the latter's attitude is not of itself indicative of a situation where it could reasonably be held that the work environment was so oppressive as to result in a constructive dismissal of the applicant by the respondent. The applicant left the workplace in distress at midday on 12 December 1994 and attended a medical doctor who certified that the applicant remain absent from work to 23 December 1994 for reasons related to stress. The applicant's evidence was that this distress resulted from the attitude of Mr Adey as discussed earlier herein. The steps taken by Ms Couprie in relation to this absence involved nothing which would suggest that the respondent was unprepared or unwilling to continue to treat the applicant as continuing in his employment. The doctor's certificate presented by the applicant was accepted by the respondent. The applicant was granted paid sick leave in relation to the amount he had already accrued. I find that no steps were taken by the respondent to disadvantage the applicant at that time. During the course of the applicant's conversations with Ms Couprie in relation to the doctor's certificate and his length of absence from work, the evidence was that the applicant gave her no indication that he was unable to return to work. Nor was any mention made of Mr Adey's conduct in relation to the matters complained of and resulting in the distress to the applicant. No further contact was had between the parties until the day before the applicant's sick leave expired when, on 22 December 1994, the applicant instructed his solicitors to write to the respondent advising it that because of Mr Adey's attitude the applicant would not be returning to work and would be reviving the application made to this court in relation to the alleged termination of 28 October 1994. The respondent was not given any opportunity by the applicant to take any further steps to accommodate his difficulties in the period after he left work due to illness to the date of the letter of 22 December. I am not satisfied that the conduct complained of by the applicant was such as to result in a situation where it was not possible for the applicant's employment to continue. In my view the intervention of the respondent's senior managers during the course of the employment difficulties was frequent and appropriate. The relationship between employer and employee is not a one way obligation. The respondent in this case had clearly defined the channels of authority for the applicant and his supervisor. There is no question here of the applicant being left to the "mercy" of an oppressive or vindictive supervisor with no recourse to management. Whilst there may be many circumstances where a failure by an employer to take steps to prevent oppressive behaviour by a supervisor towards a subordinate will result in a finding of constructive dismissal, in my view the circumstances of the present case are not of such a kind. Accordingly, I find that the applicant's employment was not terminated by the respondent on or after 7 December 1994. I dismiss the application. I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson. Associate: Dated: 27 March 1995 Solicitors for the applicant: Ryan Carlisle Thomas Counsel appearing for the applicant: Ms M Young Representative for the respondent: Australian Chamber of Manufactures Counsel appearing for the respondent: Mr J Murphy Dates of hearing: 16 & 17 March 1995 Date of judgment: 27 March 1995