Industrial Relations Commission New South Wales Medium Neutral Citation: Danger v Commissioner of Police [2022] NSWIRComm 1015 Hearing dates: 24 November 2021, 31 January, 21 February and 10 March 2022 Date of orders: 10 March 2022 Decision date: 10 March 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Respondent's Notice of Motion dismissed Catchwords: UNFAIR DISMISSAL – Notice of Motion – applicant resigned – constructive dismissal Legislation Cited: Industrial Relations Act 1996 Cases Cited: Allison v Bega Valley Council (1995) 93 IR 98 Texts Cited: Nil Category: Principal judgment Parties: Moana Danger (Applicant) Commissioner of Police (Respondent) Representation: Applicant represented herself Counsel: Mr M Seck (Respondent) Solicitors: Ms C Lenard, Kingston Reid (Respondent) File Number(s): 2021/00326937 Publication restriction: Nil EX TEMPORE decision 1. This is an application by the applicant, Moana Danger, pursuant to s 84 of the Industrial Relations Act 1996 filed on 8 November 2021 seeking relief in relation to unfair dismissal. 2. The applicant was employed as a Customer Services Representative by the respondent, the Commissioner of Police. 3. The applicant commenced employment on 28 August 2018 with the respondent and her last day of employment was 9 September 2021. 4. In the application, the applicant indicated that she was seeking reinstatement and monetary compensation. 5. On 22 November 2021, the respondent filed a Notice of Motion in the Commission which sought the following: 1. An order dismissing or otherwise setting aside the Application for Relief in relation to Unfair Dismissal filed by the applicant on 8 November 2021 (Unfair Dismissal Application); and 2. Any further or other orders that the Commission sees fit. 1. The grounds and reasons in support of the respondent's Notice of Motion were stated as follows: 1. The Applicant has brought an Unfair Dismissal Application against the Respondent pursuant to Part 6 Chapter 2 of the Industrial Relations Act 1996 (IR Act). 2. Pursuant to s. 84(1) of the IR Act, in order for the Commission to be seized of jurisdiction to hear the Unfair Dismissal Application, there must have been a dismissal by the Respondent of the Applicant. 3. The Applicant voluntarily resigned from her employment with the Respondent effective 15 November 2021, by giving notice in writing on 18 October 2021. 4. There was no dismissal of the Applicant by the Respondent. The Respondent was not the real and effective initiator of the termination of the Applicant's employment. 5. Accordingly, the Applicant is not entitled to bring the Unfair Dismissal Application and the Commission does not have jurisdiction to hear the Unfair Dismissal Application. 6. The Unfair Dismissal Application must be dismissed for want of jurisdiction. 1. The matter came before me on 24 November 2021. On that occasion, pursuant to practice note 17A of the Commission's practice notes, I decided to hear and determine the respondent's Notice of Motion as a threshold issue prior to conciliation taking place. Directions were made for the filing and serving of evidence and submissions with respect to the orders sought by the respondent in its Notice of Motion. 2. The matter came before me for hearing on 31 January and 21 February 2022. During the hearing the respondent was represented by Mr M Seck of counsel. The applicant represented herself. 3. In support of the motion, evidence was given by Kristy Walters, Director, Police Link Command. 4. It appears that an issue had arisen between the applicant and her managers with respect to the requirement to comply with a COVID-19 vaccine mandate which had been authorised by the respondent, the Commissioner of Police. 5. A number of documents were issued on 7 September 2021 by the then Commissioner of Police, Mr M Fuller. One such document was headed "COVID-19 Vaccination Mandate direction" and included the following: 1. From the date of this document, applicable to all members of NSWPF (officers and administrative employees), I direct that a member of NSWPF cannot perform any duties unless: a. If the duties are performed on or after 30 September 2021 the member has received at least 1 dose of a COVID-19 vaccine; and b. If the duties are performed on or after 30 November 2021 the member has received at least 2 doses of a COVID-19 vaccine. 2. If required by a member's manager, supervisor or Commander, a member must provide vaccine evidence. … Failure of a NSWPF member to comply with this direction will ultimately result in management action. Given the effort of all members of NSWPF to date during the pandemic, I trust this will not be necessary and members come together to protect themselves, their colleagues and members of the NSW community. Michael J Fuller Commissioner of Police 7/9/21 1. A further document issued on 7 September 2021 by the respondent was headed "OFFICIAL INFORMATION COLLECTION NOTICE COVID-19 Vaccination Information in response to COVID‑19 Vaccination Mandate direction". This document contained the following: You are required to provide NSWPF with a copy of your immunisation history statement as recorded on the Australian Immunisation Register, or a copy of a medical contraindication certificate ("vaccine information"). The purpose for the collection of your vaccination information is in relation to your deployment, welfare and safety, as well as that of your colleagues and the community you serve. Your vaccination information may also be used in relation to your eligibility to undertake work under the NSWPF's user charges scheme. You must provide your vaccination information if required to do so by your manager, supervisor or Commander. Failure to provide your vaccination information may result in management action and affect your eligibility to work under the NSWPF's user charges scheme. You can request access to the information you provide. Access can be requested through the SAP system or via your Commander/Manager. You can also request that your personal or health information held by the NSWPF be amended if you believe the information is not accurate. … THIS VERSION SUPERSEDES ALL PREVIOUS VERSIONS 1. A further document, also issued by the respondent on 7 September 2021, was headed "INFORMATION COLLECTION NOTICE COVID-19 Vaccination Information – Voluntary" and contained the following: If you have received the COVID-19 Vaccination, you are requested to provide the NSWPF with a copy of your immunisation history statement as recorded on the Australian Immunisation Register. If you are unable to receive a COVID-19 Vaccination due to a medical contraindication, you are requested to provide the NSWPF with a medical contraindication certificate. The purpose for the collection of your vaccination information is in relation to your deployment, welfare and safety, as well as that of your colleagues and the community you serve. Your vaccination information may also be used in relation to your eligibility to undertake work under the NSWPF's user charges scheme. You have not been directed or required to provide your vaccination information. You can request access to the information you provide. Access can be requested through the SAP system or via your Commander/Manager. You can also request that your personal or health information held by the NSWPF be amended if you believe the information is not accurate. … THIS VERSION SUPERSEDES ALL PREVIOUS VERSIONS 1. The applicant was advised by her manager, Andrew Cobham, by email dated 10 September 2021 as follows: Hi Moana, Thank you for coming to see me today regarding the Commissioner's mandate for vaccination. My understanding is: Anyone who has not received the first dose of vaccine by September 30th will be stood down using their own entitlements until they receive their first dose Anyone who has received their first dose of vaccine but not their second dose by 30th November will be stood down using their own entitlements until they receive their second dose. EXCEPTIONS If you wish to state your case for either deferment or exemption of vaccination, this needs to be put in writing by 30th September. This submission would need to include reasons / rationale / intention moving forward. If you are seeking exemption, you will also need to submit the SNSW approved 'Contraindication Medical Exemption' form, completed by your Doctor. Command will submit this to HR and WorkForce advisory for feedback and advice before any decision is made on further action. (This has changed from OGC and WorkForce Advisory as I mentioned to you earlier and may be subject to further change). Unfortunately at this point in time, what 'further action' is remains unknown. It is also unclear who will ultimately make a decision. The Commissioner's mandate talks to the Commissioner's delegate, but does not go so far as to say who that is. I imagine the first action would be per above, to stand down using your entitlements unless you choose LWOP (if that is given as an option) until a final decision is made. I can support your request to be given time within your scheduled shift to complete your submission based on business needs. Please liaise with your Team Leader, Jemima, who will schedule 30 minutes secondment time where this can be accommodated within the forecast. If on the day, business needs dictate, the secondment may be cancelled but can be rescheduled. Due to current high volume work load, unfortunately I cannot guarantee that you will get the full 30 minutes undisturbed, however we will work with you and do our best. I'm sorry I can't be more informed than this but will keep you updated as I learn of any changes. Cobby. 1. In the event, the applicant did not provide her immunisation history, nor did she request an exemption. The applicant did raise a grievance with respect to what she regarded as private and unnecessary information being required of her. She was stood down without pay effective 1 October 2021. 2. On 18 October 2021, the applicant submitted a letter of resignation in the following terms: To Andrew Cobham, Please see the attached document before reading on. The attached document was headed "Resignation/Notice of Retirement from the NSW Police Force" and stated: I hereby tender my X resignation. Under the heading "Prime reason for resigning (please select one)" the following was stated next to the box "Other - please state your reason": Relative to the Covid 19 Mandate given 7 September 2021 and subsequent actions of the NSWPF The letter of resignation then continued: I'd like to again remind you of the impact the decision to stand me down without pay and answers has had on my mental wellbeing, psychological and physical health and financial situation. I have been stood down without pay for approximately 20 days now, and there remains no response to the privacy matters I initially raised, nor the grievance matter I forwarded. The handling of my grievance matter has not been consistent with the award, thus I have forwarded the matter appropriately to the relevant body. I have not made this decision lightly, however the NSWPF as my employer and it's questionable treatment of myself and other employees in my position has led to ongoing stress that has resulted in this decision. After I was threatened with the ambiguous phrase of "disciplinary action" which Kristy Walters confirmed may mean "counselling, loss of pay, loss of hours, or dismissal as an NSWPF employee", I have been impacted to the extent that this decision is necessary. There has been little-to-no communication from management as to my employment status after being dismissed and stood down from my duties since 30 September 2021. There has furthermore, been no communication since the end of the "7th day reminder period" which was approximately 10 days ago and counting. I am not sure what is expected of myself and the many others who are also in this position, but failing to inform and advise me, and keeping my employment in question is not something that is expected from a government body agency such as the NSWPF. The NSWPF is ultimately keeping my employment in a state of limbo for reasons that have not been communicated, in addition to standing me down without pay. Andrew, I'd like to thank you for the ongoing support throughout this difficult time and since the beginning of my employment in 2018. You have been an amazing, supportive & caring manage and I wish nothing but the best for you and your family in the future. I am truly thankful for the opportunity to have worked at the Police Link Command under your supervision for the period leading up to these events. Yours sincerely, Moana 1. The applicant did receive some income after she was stood down. Pay records tendered in the proceedings indicate that the last full pay that the applicant received was for the fortnightly pay period ending 30 September 2021. The applicant's payslip for the pay period ending 14 October 2021 indicates that she received base pay for 30 hours in the amount of $1,152.37 and, at that time, had an annual leave balance of 26.90 hours. For the following pay period ending 28 October 2021, the applicant's payslip indicates that she received base pay for 5 hours in the amount of $192.06, but her annual leave accrual was shown as 2.28 hours. On the applicant's payslip for the period ending 11 November 2021, it is indicated that there was an assertion that she had been overpaid with respect to the period 15 October to 28 October 2021 and her annual leave accrual was shown as 0.05 hours. 2. In the proceedings the applicant gave the following evidence: 19. On 18 October I submitted my four weeks' notice of resignation to Mr Cobham via email. I stated several reasons in this email as to what ultimately caused the decision… At this stage I felt I had no other choice as I had no way of making income nor was I receiving payment of wages. I was still required to ask the NSWPF permission before gaining 'secondary' employment and I was restricted in what employment I could take. No indication was given as to the timeframe I would remain in this situation. I was struggling financially and there was no indication as to whether I would have my duties reinstated or when my wages would be paid. Ms Walters would not confirm whether the Award internal grievance process was being followed and the timeframes stipulated in the Award were not being adhered to. I could not gain government assistance as I was still employed. Further, my initial privacy complaints continued to go unanswered. 1. The applicant claims that she was constructively dismissed. A leading authority on this area of employment law is the case of Allison v Bega Valley Council (1995) 63 IR 68. In that decision the Full Bench of the Commission (Peterson and Marks JJ, Connor CC) stated as follows (at 72): It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning. In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is, in effect the employer has brought about the termination of the contract of employment. Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in a such as way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face it the employee appears to have given his or her resignation? 1. Applying the principles set out in Allison and other decided cases, in this matter I have no doubt that the real and effective initiator of the termination of the applicant's employment was the conduct of the respondent in: 1. Issuing contradictory directives as to the requirement for employees to produce their immunisation histories. 2. Standing down the applicant without pay and thus depriving her of income while her grievance about the requirement to provide her private medical information was being processed. 1. Despite the fact that the applicant's letter of resignation, which is set out above (at [16]), discloses that her decision was made after consideration of the circumstances that confronted her and was not given in the heat of the moment, I am persuaded that the applicant had no other choice other than to tender her resignation. 2. The respondent's Notice of Motion is dismissed. 3. I so order. John Murphy Commissioner ********** Amendments 01 April 2022 - Amendment made in paragraphs 13 and 17 19 May 2022 - Paragraph [15] amended from 2022 to 2021. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2022