Kelleher and Wagga Wagga Base Hospital [2004] NSWIRComm 187

Industrial Relations Commission of New South Wales

CITATION : Kelleher and Wagga Wagga Base Hospital [2004] NSWIRComm 187 APPLICANT: PARTIES : Robyn Kelleher RESPONDENT: Wagga Wagga Base Hospital FILE NUMBER: 4979 of 2003 CORAM: Sams DP Termination of employment - unfair dismissal - hospital social worker - resignation of applicant - whether applicant forced to resign - allegations against applicant - grievance process - whether grievance processed in a timely fashion - breach of respondent's policies - applicant obtained alternative employment - applicant forced to relocate - investigation not completed - complainant on workers' compensation - grievance not able to be actioned - principles of constructive dismissal - costs application. CATCHWORDS : Held, applicant a person of the highest integrity and professional dedication - issue not whether allegations substantiated - termination of employment not at the employer's initiative - respondent constrained by duty of care to employee - timely investigation not possible - delay in investigation outside respondent's control - respondent's offers of counselling and assistance - applicant initiated her own response to grievance - relevance of certain policies - no fundamental breach of policies - applicant suffered no financial loss - applicant did not seek to withdraw her resignation - applicant sought and obtained alternative employment before investigation completed - no request for reinstatement or reemployment - applicant not constructively dismisssed - application dismissed for want of jurisdiction - costs not considered. LEGISLATION CITED : Industrial Relations Act 1996 Allison v Bega Valley Council (1995) 63 IR 68 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bates v Gundagai District Services Club (unreported, Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000) Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 at 393 Britton v Riverstone Public School (unreported, Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999) CASES CITED : Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Police Service of New South Wales v Batton (2000) 98 IR 154 Essential Personnel Pty Ltd v Wray (1996) 70 IR 109 Shankar v Neumo Packaging Systems Pty Limited [2000] NSWIRComm227 St Vincents Hospital Sydney Limited v Harris (unreported, Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998) Ward v Mobile Innovations [2002] NSWIRComm 287 HEARING DATES: 04/07/2004 DATE OF JUDGMENT: 07/02/2004