Industrial Relations Commission of New South Wales CITATION : CHRISTOPHER NEIL JAMES AND GLOBAL GOSSIP PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 [2000] NSWIRComm 43 PARTIES : Christopher Neil James Global Gossip Pty Ltd FILE NUMBER: 4997 of 1999 CORAM: Sams DP Termination of employment - unfair dismissal - whether a constructive dismissal - applicant resigned - whether a forced resignation - casual employment - seasonal downturn - reduced hours of work - applicant refused to follow company policy - whether company policy was unfair or ambiguous - alleged poor performance - absence of formal warning or counselling - termination at the initiative of employer - whether termination "harsh unreasonable or unjust" - compensation sought - whether compensation for hurt and humiliation CATCHWORDS : Held, resignation amounted to constructive dismissal - dismissal "harsh, unreasonable and unjust" - reinstatement impracticable and inappropriate - compensation ordered - compensation for hurt and humiliation refused - lack of evidence. LEGISLATION CITED : Industrial Relations Act 1996 Workplace Relations Act 1996 Allison v Bega Valley Council (1995) 63 IR 68 Mohazab v Dick Smith Electronics (1995) 62 IR 200 Association of Professional Engineers, Scientists & Managers Australia v David Graphics Pty Limited (unreported, Industrial Relations Court of Australia, Wilcox CJ. 12 July 1995) Linkstaff International Pty Ltd v Roberts (1996) 67 IR 381 Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 Clark v Pittwater RSL Club Limited (1998) 84 IR 309 CASES CITED : Lorna Britton v Riverstone Public School (unreported, Schmidt J, Sams DP and McLeay C, Matter IRC5504 of 1999, 6 May 1999) St Vincents Hospital Sydney Pty Limited v Harris (1998) 81 IR 173 Peters v Jenolan Caves Reserve Trust (1998) 86 IR 162 Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 Liu and Ors v Coms 21 Ltd (Giudice P, Duncan DP and Larkin C, Dec 193/00 M Print S3571) Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 HEARING DATES: 02/17/2000; 02/18/2000 DATE OF JUDGMENT: 04/07/2000 APPLICANT Ms N Rudland (Barrister) RESPONDENT LEGAL REPRESENTATIVES: Mr M Scheib (Barrister) SOLICITORS Crichton-Browne Crossley JUDGMENT: - 36 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP April 7, 2000 Matter No IRC99/4997 CHRISTOPHER NEIL JAMES AND GLOBAL GOSSIP PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 This is an application pursuant to s84 of the Industrial Relations Act, 1996 "the Act", filed by Christopher Neil James, seeking relief in respect to his alleged unfair dismissal by Global Gossip Pty Ltd on, or about, 26 August 1999. 2 The matter was first listed for directions and conciliation on 21 October 1999; the applicant representing himself and Mr M Scheib of Counsel appearing for the respondent. Following preliminary submissions, I directed the parties to confer, and upon resumption, there being no agreement, the Commission chaired private conferences with the parties. No agreement could be reached and, pursuant to s87 of the Act, I set the matter for arbitration and issued directions for the filing and service of affidavit material. 3 Christopher Neil James (the applicant) is twenty-six years old and was employed on a casual basis as a customer service representative at a specialist communication store owned by Global Gossip Pty Ltd in Darlinghurst. 4 The respondent did not press any issue as to the casual nature of the employment; but strongly contested that a dismissal, in both fact and law, had occurred. The respondent contended that the applicant had resigned, and accordingly, there was no jurisdiction for the Commission to proceed to determine his unfair dismissal claim. 5 It is not disputed that a resignation was offered. The applicant, however, argues that it was a resignation forced upon him by the actions of the employer; thereby falling for characterisation as a "constructive dismissal". 6 At the hearing of the matter, Ms N Rudland of Counsel appeared for the applicant and Mr Scheib continued his appearance for the respondent. 7 Ms Rudland called evidence from the applicant and Mr Scheib called evidence from: Mr Peter Ovenden, Company Director Mr Geoffrey Fisher, Operations Manager Ms Sarah-Jane Lascelles, Store Manager 8 The following brief chronology is extracted from the evidence filed, and a review of the transcript: A) The applicant commenced employment in November 1998 and worked regular shifts of around twenty hours per week up until June 1999. B) He also worked on a part time basis for Grace Bros. These employment arrangements were also regular and both employers accommodated a regular pattern for the applicant. C) There was no complaint with the applicant's work performance. D) On 27 May 1999, an incident occurred in the store involving a regular customer accessing child pornography. The applicant called the police, bypassing senior management. The customer was subsequently arrested and escorted from the store by the police (For convenience, I shall refer to this incident as the "illegal" incident). E) The company, very soon after this incident, introduced a policy to deal with any future incidents. The policy is reproduced below: ILLEGAL WEB SITES AND RELATED INFORMATION Under State and Federal laws, access to web sites and information that contains the following information is ILLEGAL. Child pornography Information detailing usage and creation of weapons Defense(sic) force sites If you are aware of any person viewing material of a nature that you know or believe to be illegal, contact Kylie, Peter or Philip immediately. UNDER NO CIRCUMSTANCES SHOULD YOU TAKE SUCH MATTERS INTO YOUR OWN HANDS AND CONTACT AUTHORITIES VIEWING PORNOGRAPHIC MATERIAL Pornographic sites containing images or information of people over the age of 18 is: NOT illegal IS allowed to be viewed by people over the age of 18 If a customer wishes to view such material ask them to sit at a terminal out of the view of other customers. If they are offending or creating discomfort for other customers, please ask them to discontinue their access. Contact Numbers: KYLIE DRURY 0416 267 970 PHILIP DEAN 0416 267 969 PETER OVENDEN 0416 267 968 F) It is uncontested that the applicant, not only disagreed with this policy, but made it abundantly clear, that he would not abide by it. He believed he had a moral and legal responsibility to contact the police, if he thought a criminal act was taking place. G) Shortly thereafter, the employer reduced his regular hours of work - claiming that it was due to an overall reduction in costs as a result of a seasonal downturn in business. H) The applicant contends that the reduction was largely as a consequence of his stated opposition to the policy earlier referred to, and an incident involving another employee. I) On, or about 22 August 1999, the applicant was advised of his roster. It conflicted, in part, with his hours of work at Grace Bros. He believed this was a deliberate attempt to force him out which left him with no alternative but to resign. THE EVIDENCE For the Applicant 9 The applicant provided a witness statement (Ex'1') and gave oral evidence. 10 He described the events leading up to, and including the illegal incident on 27 May, where a customer was arrested for accessing child pornography on the internet. Earlier, on 20 May, the same customer had shown the applicant illegal material. The applicant was shocked and disgusted and told the customer to inform the police. The customer accessed similar material again on 27 May. The applicant and another employee, Fiona Campbell, came to the conclusion that the police should be called. 11 A company director, Mr Peter Ovenden, and the Human Resources Manager, Kylie Drury, both complained to the applicant that the incident should have been reported through management. 12 An e-mail outlining the company's policy was issued the next day and after taking legal advice, the applicant e-mailed his employer on 29 May, indicating that he would not abide by the policy as it opposed his "moral, ethical and legal obligations to call local authorities if shown explicit child pornographic material". He added that by not doing so, he might be held to be an accessory to a crime. 13 The company e-mailed him on 31 May indicating that, by refusing to abide by a legally valid policy, the applicant was in breach of his employment contract. 14 Ms Drury called him on 1 June and asked if he understood the policy. He told her that the only way he could agree to the policy was if the manager agreed to contact the police once having been told of an incident. Ms Drury said if he didn't agree, management would have to take action. He asked if this meant losing his job. Ms Drury responded by suggesting a meeting with the company solicitor. 15 On 3 June Ms Drury, the company solicitor, Mr Garry Crossley and store manager, Sarah Jane Lascelles, met with the applicant with a witness, Mr Mark Sutcliffe. The applicant "felt" this was a disciplinary meeting. 16 He attests that the solicitor had agreed the policy was ambiguous and would need to be changed. 17 The applicant said that his roster in that week was changed and he lost a shift. When he queried this with another employee, Ms Fiona Campbell, she replied that Ms Lascelles had drawn up the roster. When he asked Ms Lascelles she had said Ms Campbell made up the roster. 18 He reaffirmed much of this testimony in evidence in chief. 19 In a meeting with manager, Geoff Fisher, on 19 August, the applicant attests that he told Mr Fisher that the reason for his loss of shifts was his failure to abide by the policy. Mr Fisher said Ms Lascelles had told him the reasons were "not turning up to staff meetings or training sessions". He said he hadn't known of the staff meeting and he had told management he couldn't attend the training. In any event, he said, these incidents were after his reduction in hours and were therefore not valid reasons. 20 The applicant attests that the only times he couldn't work at Global Gossip because of his hours at Grace Bros were Thursday 4.00-9.00 pm, Friday 9.30-6.00 pm, Saturday 9.30-6.00 pm and Sunday 11.00-4.00 pm. However, the next fortnight's roster had him working Thursday night, Friday day, Saturday day and Sunday day. He rang Mr Fisher on 26 or 27 August and said "because I have been rostered on the only times that I cannot work, I have no option but to quit". He said Mr Fisher made no offer to swap shifts. 21 On 31 August the applicant says he sent a letter of resignation indicating he was very disappointed at the way he was treated. He received no response - although the respondent says it never received the letter. 22 In oral evidence, the applicant said he received the offending roster on the weekend of 21-22 August, and did not phone Mr Fisher until the following Thursday. He said during this time he had asked Grace Bros if he could change his hours with them - but this was refused. He said Mr Fisher knew full well of his Grace Bros job and when he couldn't work for Global Gossip. 23 The applicant acknowledged that, in a staff meeting in June 1999, employees were told that there was a requirement for a reduction in staff hours. 24 In cross examination, the applicant admitted removing, without permission, various documents from his employer, including e-mail messages. He was asked about the policy with which he disagreed, and acknowledged the company was entitled to set policies in relation to the operation of its stores. He said however, he was not called upon to abide by the policy because there were no further incidents. He said that he now believed the company was acting responsibly. 25 The applicant was closely examined on the roster attached to Mr Fisher's affidavit and the times he actually worked. He said that in the week ending 6 June he worked twenty hours, and complained about the loss of one shift. In the following three weeks his hours were 19.5, 19.5 and 16.5. He had not complained about these hours, but in the next week, his hours were reduced to 4.5. This reduction coincided with the staff meeting where employees were told of a cutback in hours. He accepted the company was entitled to reduce the hours. While he questioned his reduction in hours with Ms Lascelles and Ms Campbell, neither had said the reason was his refusal to abide by the policy. He assumed "to an extent" that the reason was because of an overall reduction in hours. 26 In the meeting with Mr Fisher on 19 August, the applicant said that Mr Fisher offered him more hours if he agreed to abide by the policy. He accepted that this was an important matter omitted from his original statement (Ex'1'). 27 After being taken to the rosters by Mr Scheib, he accepted that not all the shifts required by Global Gossip in the second roster conflicted with his shifts at Grace Bros and that it did not substantially conflict. He accepted he could work two of the three shifts or 14 of the 22 hours on offer. In the following week, he could have worked 24.5 hours of 32 hours offered, but declined to do so. 28 During this cross examination it emerged that there were two rosters, Ex'4' an earlier draft, and an annexure to Mr Fisher's affidavit. He attested that the roster he received was Ex'4' only, and he received it after his meeting with Mr Fisher. 29 A third set of rosters was produced (Ex'A') for the same period. These revealed that corrections and amendments were made to rosters which the applicant said, to his knowledge, did not occur. He later acknowledged that the rosters were amended, but they were not always e-mailed; rather amendments were pinned to the store notice board. He accepted that he would look at the notice board and it was in clear view. 30 The applicant was taken to an e-mail (Ex'B') sent to him on 22 August advising of changes to the roster commencing 23 August. He said he received the e-mail, but the roster attached was Ex'4' and not the amended roster annexed to Mr Fisher's affidavit. 31 The applicant said he waited until Thursday, 26 August to phone Mr Fisher (Mr Fisher says it was the morning of the 27th). He didn't ask for the roster to be changed, but resigned. He said he used the words "you know I couldn't work these particular days" - although these words were not in his original statement. He disagreed with Mr Fisher's version of the conversation. 32 He was asked what he had requested of Grace Bros in respect to adjusting his roster. He confirmed that Grace Bros was his preferred employer. 33 He accepted that, at the meeting with Mr Fisher on 19 August, Mr Fisher was offering him more work and that he had a good relationship with him. Mr Fisher was approachable. He said he was then confused when he received the conflicting roster on 22 August. 34 The applicant said he hoped for a negotiated outcome in the phone call of 26 August, although he did not ask Mr Fisher to change the roster. The next day he wrote a letter of resignation and sent it on 31 August; but didn't keep a copy. He relied on his memory to say the letter was short and did not express concern at the lack of alternative arrangements offered to him. The applicant was asked what efforts he had made since leaving Global Gossip to secure extra work. He said he did not ask Grace Bros for extra hours, but had secured 7.5 hours at another retailer as a shop assistant. He also secured some promotional work through an agency. For the Respondent 35 Mr Peter Ovenden, Company Director, provided affidavit and oral evidence. In his affidavit, Ex'C', he described the facilities provided in Global Gossip stores operating throughout Australia. 36 There is no dispute as to the employment history of the applicant, except Mr Ovenden says the applicant verbally resigned on 27 August 1999. No resignation letter was ever received. He said that as a casual, the applicant was offered varying hours, according to a roster published in advance, and depending on each store's changing circumstances. 37 Mr Ovenden said that in late June 1999, reacting to a seasonal downturn, the company introduced a cost saving policy by reducing hours. He said as a general rule the hours in all stores were reduced by fifty per week. The hours were increased in August 1999 following a promotional strategy. 38 In reply to the applicant's statement, Mr Ovenden agreed that he had told him he should have contacted someone at Head Office about the 27 May incident, but denies the applicant's version of the conversation and denies that he violently shook papers at him. 39 In cross examination, Mr Ovenden said he visited the Oxford Street store, at least once a week, sometimes spending two or three hours in the store. However, he had not worked alongside the applicant in the Oxford Street store. 40 Of the four directors, two were working directors and two were not. Mr Overden said, as a director, he had no involvement in rostering of staff, but he had a responsibility in terms of broad policy decision making, such as the decision to reduce overall hours due to the winter months downturn. There was no written directive to this effect; rather he instructed the Director of Operations to reduce overall hours. 41 In respect to the resignation letter, Mr Ovenden had undertaken inquiries at Head Office and the Oxford Street store and no one had received, or had seen such a letter. 42 Mr Ovenden said that it was the management who raised the issue of employees possibly viewed as colluding in a crime, if they did not report an alleged illegal incident. He had discussed with the applicant, management's view that employees should notify management, rather than contacting the authorities themselves. He accepted that he had been "very upset" the Police were called on 27 May, before Head Office was notified. 43 He said the policy was put in place the day after the incident, following discussions at senior management level. He said he was not annoyed that the applicant refused to abide by the policy. 44 Mr Ovenden was asked about the two rosters before the Commission and said that, apart from displaying the roster in the store and the e-mail (Ex'B'), which had no attachment, there was no other documentary evidence that proves the applicant received the second roster. 45 Mr Geoffrey Fisher is the respondent's operations manager. He had been a temporary manager in the Oxford Street store for a short time from 14 August 1999. 46 He describes the meeting with the applicant at about 5.00 pm on 19 August 1999. The applicant had said he was looking for more hours, but had felt Ms Lascelles and upper management wanted him out. Mr Fisher said he knew the applicant was working at Grace Bros, but didn't know his shifts and the applicant didn't raise it at the meeting (the applicant's version of the conversation is disputed by Mr Fisher). 47 Mr Fisher said he sent the second roster to the applicant on 19 or 20 August, providing him with a total of 22 hours and 32 hours, respectively, in the subsequent two weeks. 48 He had not heard from the applicant until the morning of 27 August (the applicant says it was the night before). Mr Fisher said the applicant had said "I can't work for Global Gossip any longer because I can't work two jobs. Please tell Peter and Phil that I will send in a resignation letter" 49 The applicant had not mentioned his roster conflicting with his roster at Grace Bros. 50 In cross examination, Mr Fisher was shown Ex'4' and said he prepared this roster after 5.00 pm on 19 August when it was sent by e-mail to all staff (possibly on 21 August) and pinned on the notice board. It was prepared after the meeting with the applicant on 19 August. It was subsequently altered and re-sent on 20 August (Ex'B' shows it sent on 22 August). He said it was not uncommon for rosters to be adjusted, depending on changed circumstances, or an employee's personal requests. 51 He gave evidence that he couldn't remember which day it was sent and said the confusion of the time of Sunday 4.25 am, as disclosed on the e-mail, might have referred to the time in the United States. 52 He reaffirmed that the applicant had phoned him on the morning of 27 August; the applicant had not asked him to change the roster and if he had, he would have tried to accommodate him. 53 In further questioning Mr Fisher said that Ex'B' reveals that there was a roster attached to the e-mail of 22 August and that the message was relayed through the United States as Hotmail is based there. 54 In cross examination, Mr Fisher said that he started working for Global Gossip as a casual in April 1999 and became operations manager in July 1999. In the hierarchy, all store managers report to him and he reports to the director of operations, Kylie Drury. He said that until the staffing system was changed in September 1999 there had been no supervisor at the Oxford Street store from the middle of June. He had been acting store manager from 14 August to 23 August and had prepared the rosters for the two weeks commencing 23 August. He accepted this was the first occasion he had prepared rosters for the Oxford Street store. He had received no instructions as to the requirements for drafting the roster, nor did he look at past rosters, or ask anyone about them. He said, while he was aware the applicant worked at Grace Bros, he didn't know the details. 55 Mr Fisher gave further evidence of the meeting with the applicant on 19 August. There had been discussion of the illegal incident and the applicant had said his hours had been reduced because of that incident. Mr Fisher had told him that as a casual he could have been finished up at any time. He had told him that Ms Lascelles had expressed concerns as to his not attending meetings. The applicant had refuted these allegations. 56 Mr Fisher had participated in the management meeting in June 1999 which determined to reduce hours - it had not been store specific. There had been no discussion about the affects on individual staff or putting a freeze on engaging new staff. He accepted good management practice would be to minimise the impact on existing staff and not employ new staff. 57 Mr Fisher says he was absolutely certain the applicant called him on Friday morning, 27 August (not the night before) because he was left short staffed for that night. In this phone call, he recalled the applicant only said he "could not work two jobs" and not that it was "two jobs at the same time". He had understood him to mean that he could only work one job and he had chosen Grace Bros because he had added "I resign" and a letter of resignation would be sent. Mr Fisher had not dissuaded him from resigning because earlier offers of help had not been followed up by the applicant. He denied it was a "relief" that he had resigned. 58 He was only aware of performance related issues which were expressed by Ms Lascelles and Ms Drury. He later was told by Ms Lascelles about an issue with cleaning. He was unaware of any disciplinary action taken against the applicant. 59 Ms Sarah-Jane Lascelles commenced casual employment with Global Gossip in July 1998 and the following month became a store supervisor for the Kings Cross store. She became and manager for both Kings Cross and Oxford Street, when the latter opened in April 1999. 60 Ms Lascelles was the manager of the Oxford Street store for most of the time the applicant was employed at the store. In her affidavit, Ex'E' she said she had "inherited" him from the Central store and at the time was "not overly impressed with his performance; although, she said he had good customer skills. She felt the move to Oxford Street would boost his overall performance. 61 On 23 June 1999, she met the two directors, Mr Ovenden and Mr Dean, who informed her that work rosters had to be cut as a cost saving measure. She said the rosters were reduced by about fifty hours and most of the casual staff had their hours reduced and one was terminated. Her decision to reduce the applicant's hours was because he was the least flexible of the casual staff, was not as reliable or as committed as others, and had a second job. 62 She said she was responsible for the rosters up to 16 August 1999 and did not purposely roster him on, when she knew of his other commitments with Grace Bros. 63 In cross examination, Ms Lascelles said she could not remember, ever raising any issues as to the applicant's performance; rather, it was simply emphasising that certain things had to be done. She did, however, raise her concerns with head office. There were no counsellings and no specific process put in place to improve his alleged poor performance. 64 Ms Lascelles described her "chatline" conversation with Fiona Campbell - an employee who also worked at the Oxford Street store in the same capacity as the applicant. She had expressed to Ms Campbell some unhappiness with a head office employee named Julie. In respect to the illegal incident, she had expressed to Ms Campbell that she was very angry with the applicant, and that he shouldn't have called the police before calling her. 65 She was shown a "chatline" conversation with Ms Campbell at 11.27 am on 27 May 1999, which discloses that Ms Campbell was happy with the applicant and said "Chris is very efficient, you know I got in at 9.00 am and everything was beaut" Ex'3'. This was within an hour of the illegal incident with the customer. 66 Later that same day, Ms Lascelles admits saying she was never completely confident in him (the applicant) opening the store, and, despite her reservations, had done nothing about it. 67 She conceded that the words "you do delete dialogues, don't you?" was because she did not want other people accessing the conversation. In respect to another "chatline" conversation with Ms Campbell, Ms Lascelles says she did not know what was meant by "I have also left Ben off the schedule, for well obvious reasons". 68 In questioning as to the reduction in hours, Ms Lascelles said she knew about the hours the applicant could work, because it was on an e-mail in the applicant's file, kept in the Oxford Street store. She had not removed this e-mail from the store and expected it to still be there. She had not told Mr Fisher of any particular staffing requirements, or specifics as to the applicant's availability. 69 She accepted that, faced with a policy to reduce hours, a responsible manager would not be engaging new staff. She was shown the rosters and accepted that new staff, albeit from the Kings Cross store, had worked on shifts in Oxford Street. She said, however, that it was easier to train staff in the Oxford Street store and this was why the new names appeared on the roster. She was also asked about the hours of existing staff and agreed they had suffered no reductions and some had increased hours. A staff member, Helen, who left, had only worked for one month. 70 Ms Lascelles accepted that, when reducing the applicant's hours, she took into account her view that he was not as reliable or committed as other staff. She had never told the applicant this was the reason. She said she had no recollection of the applicant complaining about his hours, or saying the roster he had complained about was Ms Campbell's responsibility. 71 She denied using the roster to remove Ben from employment. She said that he was "quite happy" about it. She further denied that she was very negative towards the applicant, or that she had singled him out for reduced hours. She accepted that, at no time, had she raised with the applicant, concerns as to his reliability or commitment; but conceded she had made decisions about his employment based on these concerns. 72 In re-examination, Ms Lascelles said that she was shocked when she saw hard copy of her conversations with Ms Campbell. She accepted there was no confidentiality and anyone could click on to a person's name and access their messages. SUBMISSIONS For the Applicant 73 Counsel for the applicant submitted that: A) The applicant's termination of employment was a "constructive dismissal" attracting a finding of being "harsh, unreasonable and unjust" in terms of ch 2 Pt 6 of the Act. B) The applicant commenced employment in November 1998. At all times the respondent was aware of his other work commitments with Grace Bros. C) There was no dispute as to the events which occurred on 27 May 1999 or the applicant's clear intention not to accept, or abide by, the company's policy arising therefrom. D) There is nothing in the applicant's employment record which reflects adversely against him. While Ms Lascelles gave evidence as to problems with his performance, at no time had she established any formal warning or counselling processes. Her views, however, were taken into account when the applicant's hours were reduced within days of the illegal incident. E) This established a pattern which ultimately led the applicant to believe he had no option but to resign. F) Where there is a conflict of evidence between the applicant and Ms Lascelles, the applicant's testimony should be preferred. He gave his evidence in an open and honest manner. G) The applicant's hours were dramatically cut from an average of twenty to four and one half. At the same time, employees were brought in from other stores and existing employees suffered no reduction in hours. Mr Fisher and Ms Lascelles both gave evidence that a responsible manager in circumstances of reducing hours, would seek to lessen the impact on existing employees in order to be fair to all. The applicant however, had borne the brunt of the cut backs. There was no discussion with staff as to the effect of the reduced hours. H) There was a meeting between Mr Fisher and the applicant on 19 August. Mr Fisher had information as to Ms Lascelles' views of the applicant - but at least in respect to not attending the training session, Mr Fisher was fully aware of the reasons. The applicant had made clear his opposition to the policy in relation to accessing illegal material, and that he left the meeting with the impression that he would get increased hours, provided he abided by the policy. I) A roster was prepared about 5.00 pm that day which conflicted with his Grace Bros commitments. A second roster was sent late on Sunday, 22 August. While he didn't ring the next day to complain, he did seek to alter his Grace Bros roster to suit Global Gossip's requirements. J) The applicant's evidence, corroborated by Mr Fisher, was that he told Mr Fisher on 19 August, that management wanted him out and the roster was a means of forcing his resignation. It was not unreasonable or irrational for the applicant to have this view. K) It is not crucial that Mr Fisher says the applicant phoned on 27 August, whereas the applicant says it was the night before. What matters is that it did take place, and the recollections of both witnesses, were not materially different in effect. L) Mr Fisher made no attempt to dissuade the applicant from resigning and wasn't unhappy with the result. M) From the end of May until mid August the respondent took critical actions relating to the hours of work which ultimately led to the termination of employment, albeit by resignation. This constituted a constructive dismissal. See Allison v Bega Valley Council (1995) 63 IR 68, Mohazab v Dick Smith Electronics (1995) 62 IR 200 and Association of Professional Engineers, Scientists & Managers Australia v David Graphics Pty Limited (unreported, Industrial Relations Court of Australia, Wilcox CJ. 12 July 1995). N) Reinstatement is impracticable, as the applicant has alternative work and maintains his opposition to the respondent's policy. O) Compensation should be ordered at a rate of 20 hours per week x $13.00 x 26. P) The applicant had secured alternative employment and his remuneration from Grace Bros should not be taken into account. Q) Compensation should also take into account "hurt and humiliation". For the Respondent 74 Mr Scheib's submissions may be summarised as follows: A) The applicant must establish, on the balance of probabilities, that he was dismissed, and that the dismissal was "harsh, unreasonable or unjust". B) The applicant was a casual employee. The employer was perfectly entitled to alter its business arrangements to suit operational needs. C) The applicant recognised that he would work the hours the employer offered and the employer was entitled to offer shifts as it saw fit. D) The respondent did not rely on any performance issues with the applicant. While Ms Lascelles had certain performance concerns, they were never used as a basis for recommending the applicant's dismissal. Her concerns were general remarks designed to recognise the need to juggle shifts to meet operational requirements. E) The Commission does not need to determine whether the company's policy on illegal material is fair, reasonable or otherwise. It was, however, a perfectly measured and responsible policy communicated to all employees. If the applicant found the policy abhorrent, he had a choice to leave. The policy, nevertheless, did no more than protect the employees, by placing the responsibility of contacting the authorities with management. F) The key to whether the applicant voluntarily resigned is whether he received the second roster. On the balance of probabilities, it was sent to him between Saturday 21 and Sunday 22 August. That roster provided 22 hours in the week of 23 August. This was a clear indication that the employer was prepared to offer more hours than 4.5. G) It was never put fairly and squarely to Mr Fisher that the second roster was not sent, nor received by the applicant. The attachment 'A' to Mr Fisher's affidavit actually came from the applicant's documents. H) While both rosters contain overlaps between Grace Bros and Global Gossip it was recognised Mr Fisher didn't know the precise details and would have made variations if a mistake had been made. I) The applicant overreacted. The second roster only slightly overlapped and could have been easily adjusted. The applicant displayed no willingness to take up any of the hours that were offered. J) The applicant was an unreliable witness, based on: i) his removal, without permission, of company documents; ii) his downloading of chatline messages between other persons; iii) the material in (i) and (ii) was not attached to the applicant's original statements; iv) dates were changed during his evidence; v) he had said rosters weren't changed - but they were; vi) he had claimed an immediate reduction of hours after 3 June which was not the fact; vii) when questioned as to the second roster, the applicant did not protest that it was not the roster he said he received; viii) despite keeping all relevant documents he did not keep a copy of a very important document - his resignation letter. This was incredible. K) The applicant " sat on his hands " from Sunday to Thursday or Friday and made no attempt to contact the respondent to discuss the matter. The applicant had made up his mind to leave the company and phoned Mr Fisher to inform him. L) Mr Scheib relied on Linkstaff International Pty Ltd v Roberts (1996), 67 IR 381. The applicant was not "squeezed out" of employment, his position was being accommodated, and if there was a mistake, the applicant did nothing to correct it. M) As to mitigation, the applicant had continued employment with Grace Bros and did not ask for additional shifts from Grace Bros. In Reply 75 Ms Rudland submitted that: A) The applicant cannot be criticised for answering questions on the second roster because it was he who raised the issue of two rosters. B) There is no evidence of the applicant downloading material. C) the applicant was entitled to keep e-mails between himself and the company; they were not confidential and he was a party to their creation. D) It was never put to the applicant that he had withheld or concealed documents (See Browne v Dunn rule). E) There was no evidence of the applicant receiving the attached roster to the e-mail, Ex'B'. CONSIDERATION The Termination of Employment 76 The essential question for determination is whether the applicant's termination of employment falls within the class of dismissal known as a "constructive dismissal" . A consequential question - was the dismissal, "harsh, unreasonable or unjust" within the meaning of ch 2 Pt 6 of the Act - only arises if the answer to the first question is in the affirmative. I will come to this latter question shortly. 77 True it is that the applicant submitted his resignation; whether he did so in a letter and whether the letter was actually sent, or received, is not particularly relevant. He had resigned in the phone call to Mr Fisher on 26 or 27 August. He acknowledged as much in his evidence. That, of course, does not end the matter. He claimedhe had been forced to resign because he was rostered at times when management knew he was unable to work because of his other commitments with Grace Bros. 78 In my view, it is crucial to recall that the applicant had expressed a view, on 19 August, that Ms Lascelles had reduced his hours because management wanted him out. Mr Fisher acknowledged as much in paragraph 4 of his affidavit, Ex'D'. Thus, it must be accepted that the applicant genuinely believed, rightly or wrongly, that a set of circumstances was being constructed which would force his resignation. He expressed his belief openly, a week prior to the resignation. No one in management made any effort to disavow him of this belief. Indeed, Mr Fisher did not reject, or attempt to dissuade, the applicant from his belief when there was an opportunity to do so. Mr Fisher did, however, construct a roster which provided him with significantly more hours than he had earlier received. Should this have convinced the applicant that his belief was misplaced or erroneous? To answer this question requires a careful analysis of what roster he actually received, and whether it made his Grace Bros employment so untenable, that he was left with no option but to resign. I shall turn to the evidentiary difficulties of the rosters shortly. Relevant Principles 79 The Commission's principles as to what constitutes a constructive dismissal are now well established. They emerge from a long line of precedent with the most oft quoted authority being Allison v Bega Valley Council. 80 It is appropriate to record the relevant extract from the Full Bench decision: 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 such a 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 of it the employee appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue. In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensure and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer. Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed. 81 A number of subsequent cases similarly considered the principles discussed in Allison. They include Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296, Clark v Pittwater RSL Club Limited (1998) 84 IR 309, Lorna Britton v Riverstone Public School (unreported Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999),St Vincents Hospital Sydney Pty Limited v Harris (1998) 81 IR 173 and Peters v Jenolan Caves Reserve Trust (1998) 86 IR 162. 82 It is manifestly clear that, a common thread in all constructive dismissals, is a notion that the termination of employment was brought about by the actions or behaviour of the employer. Ad summam, the employer was the effective initiator of the termination. This might arise in circumstances where a resignation is forced on the employee (as was the case in Allison) or in other circumstances such as the employee abandoning employment, being "sent away" by the employer, being "squeezed out" or faced with a unilateral and detrimental variation to employment, such as demotion. 83 In the present case - where there is no dispute a resignation was offered - I consider it pertinent to note what Macken J said in Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392: Just as it is a fundamental requirement for an employment contract to be entered into by the genuine consent of both parties to the contract - a consent untainted by any hint of pressure or threat - so too, it must be terminated by a resignation equally untainted by any such threat. Where a contract is terminated otherwise, it amounts to constructive dismissal. The "Illegal" Incident 84 In my view, there can be no argument that the employer had a right - indeed, an obligation - to introduce a policy to deal with any future incidents of the kind that occurred on 27 May 1999. However, the "angry" reactions of Ms Lascelles and Mr Fisher were also influenced by a concern for the company's reputation and, the embarrassment of a customer being escorted from the store by Police; no doubt, in full sight of other customers. This view is reinforced by the comments of Mr Philip Dean, another director, who said in an e-mail to the applicant on 31 May 1999: Having a customer escorted from the premises of one of my shops in handcuffs does concern me if there is a way of achieving the same outcome in a less dramatic manner. (Ex'2') I also believe, in Ms Lascelles' case, that she was annoyed her management role, in dealing with such matters, had been usurped by a subordinate. 85 There is, of course, a public duty on all citizenry to report acts of alleged criminal activity. Sometimes, members of the public can be over exuberant, to the point of obsession with so doing. Others have a deep personal commitment to help in eradicating criminal activity which they find particularly abhorrent. I am satisfied that the applicant falls in the later category in respect to his understandable aversion to child pornography. 86 The applicant believes that if he did not report such activity, directly to the police, he might be held to be an accomplice to a criminal act. This is a mistaken view. So long as he reports the activity to an appropriate person, such as his supervisor or management, his public duty is, in my view, completely discharged. By taking matters into his own hands, he puts himself and other employees at personal risk. In any event, it is surely a matter of plain commonsense, that such incidents be reported, and acted upon, by management. It is management's legal and moral responsibility, stricto sensu. 87 I nevertheless accept the sincerity and conviction of the applicant's position. 88 Being aware that the applicant was so fervent, even passionate, about this matter, and because he had been the central character in the illegal incident, it would seem sensible that the company's introduction of the new policy be handled in a sensitive way, particularly as it was to be applied to the applicant. 89 I do not believe it was so handled. 90 It is trite to note that the policy was not in place when the applicant commenced employment - indeed, the policy arose directly out of, and as a result of the incident. Perhaps, with hindsight a more consultative and inclusive dialogue with employees, and in particular the applicant, might well have produced an agreed and acceptable policy. The word "commonsense" springs to mind. I hasten to add that this is not to derogate the company's ultimate responsibility for introducing reasonable policies which must be accepted by employees. 91 The applicant gave uncontested evidence that the company's solicitor, conceded the policy may be ambiguous. I would also express some concern as to what was to occur if a supervisor or manager was not in the store, or wasn't readily available. Should an employee in such circumstances, take matters into his/her own hands? 92 One further matter needs to be mentioned. Even though the applicant had said he would not abide by the company policy, he was never actually presented with a set of circumstances in which his opposition could be tested. Put another way, he never contravened a company policy. It must logically follow that any punitive action taken by the employer on a presumption he might do so, might well be regarded as unfair. The Rosters 93 Even during the proceedings, there was confusion as to what roster the applicant received, and when - confusion exacerbated by the production of at least three rosters; Ex'4' which I will refer to as the first roster, the annexure to Mr Fisher's affidavit, the second roster and Ex'A', the final roster of actual hours worked. For present purposes Ex'A' is only relevant for the purposes of establishing the hours actually worked. I record the hours worked by the applicant from 5 April 1999 to 22 August 1999: Date Hours 5.4.99 19.5 12.4.99 19.5 19.4.99 26.0 26.4.99 26.0 3.5.99 27.5 10.5.99 27.5 17.5.99 *6.5 31.5.99 20.0 7.6.99 19.5 14.6.99 19.5 21.6.99 16.5 28.6.99 4.5 5.7.99 4.5 12.7.99 4.5 19.7.99 9.0 2.8.99 4.5 9.8.99 4.5 16.8.99 4.5 * The applicant was on holidays this week 94 I draw a number of conclusions from this: A) Average weekly hours during April, May and June were 20.7. B) The applicant's hours are dramatically reduced for the following seven weeks. The turning point closely coincides with the company cost cutting policy to reduce overall hours in late June 1999. C) Obviously, this lends credibility to the respondent's submission that the reduction in the applicant's hours was not motivated by his refusal to comply with the policy. 95 However, this reduction in hours needs to be examined in the wider context of examining the staffing levels and hours for all employees during the same period. This inquiry discloses that some employees suffer no reduction in hours, while others actually have increased hours. Two employees, known as Matt and Marius, provide obvious examples - Matt's hours in June/ July/August are respectively 34, 36.5, 34.5, 36.5, 30.5, 36.5, 40, 36.5, 30, 32, 32 and similarly Marius' hours are 38.5, 36.5, 33.5, 32.5, 34.5, 37, 37 (last 12 July). 96 In addition, two new employees appear on the roster - Lesley on 19 July (12.5 hours) and Daniel on 2 August (8 hours) and 9 August (40 hours). 97 There can be little doubt from these disclosures that the policy to reduce costs was disproportionately and unfairly targeted at the applicant. I find accordingly. 98 I return then to my difficulty in establishing which roster, for the week of 23 August, was received, and when. My dilemma is compounded by the contradictions in Mr Fisher's evidence. 99 Mr Fisher contends he sent the second roster to the applicant on 19 or 20 August following his meeting with the applicant on 19 August. In my opinion, this claim is improbable when it is considered against other evidence, such as: i) Mr Fisher makes no mention of an earlier roster (presumably Ex'4') being prepared, altered or sent. ii) The e-mail Mr Fisher sent with the second roster (tendered by the respondent as Ex'B') is dated and timed 22 August (Sunday 4.28 am). There is no evidence, except the roster being pinned on the noticeboard, that the applicant received the second roster. iii) Even if the second roster was on the noticeboard on Saturday 21, Sunday 22 or Monday 23 August, the applicant wouldn't have known about it, as he was rostered off (on both rosters) from Saturday 21 to Thursday 26 August. iv) Mr Fisher attests that there was "no way" he would have sent the roster at 4.28 am on Sunday. He suggests the e-mail time might have something to do with the time being United States time. If this be so, it seems even more incredible, as it places the Australian time at somewhere between 6.28 and 9.28 Sunday night. This was the night before the roster had commenced. Mr Fisher attests that the roster was well in place before Monday, 23 August. The night before could hardly be described as "well in place". 100 These apparent conflicts do not necessarily reflect adversely on Mr Fisher; perhaps he was just mistaken. He was, after all, a new relieving store manager and, like Ms Lascelles, had little experience or knowledge of the particular requirements of the Oxford Street store. 101 On the other hand, it raises sufficient doubt in my mind for a finding on the balance of probabilities, in the applicant's favour; namely, that he may not have been aware of the existence of the changed roster and was reacting and responding to Ex'4' only. In doing so, as I will explain shortly, Ex'4' reveals significant conflicts between his roster at Grace Bros and what Global Gossip was offering. This is best disclosed by the following chart: FIRST ROSTER (EX'4') SECOND ROSTER (Fisher's Affid.) GRACE BROS COMPATABLE TO 1ST ROSTER COMPATABLE TO 2ND ROSTER FRI. 27/8 4.00 - 12.45 6.15 - 12.45 9.30 - 6.00 x SAT. 28/8 12.15 - 9.00 12.15 - 9.00 9.30 - 6.00 x x SUN. 29/8 4.00 - 12.45 4.00 - 12.45 11.00 - 4.00 THUR. 2/9 4.00 - 12.45 4.30 - 12.45 4.00 - 9.00 x x FRI. 3/9 OFF 6.15 - 12.45 9.30 - 6.00 SAT. 4/9 4.00 - 12.45 6.15 - 12.45 9.30 - 6.00 x SUN. 5/9 12.15 - 9.00 4.30 - 10.00 11.00 - 4.00 x 102 From an examination of this chart, five of the seven days rostered by Global Gossip clashed with his hours at Grace Bros. Even if he had received the second roster, it reveals a conflict with two of the seven days. 103 I am persuaded, therefore, that the applicant believed he had little option but to resign a position which had only been offering him 4.5 hours per week for some time, in favour of a position which had more hours and was more regular. His position is perfectly understandable. In my view, there was justification for his belief, that either of the rosters, but most particularly the first, was a means to force his resignation. CONCLUSION 104 For the following reasons and in view of the relevant principles, I accept that the applicant's resignation amounted to a "constructive dismissal". It was a dismissal I would characterise as "harsh unreasonable and unjust". A) It is not difficult to imagine circumstances in which a casual employee might have his/her hours reduced with an intention to force the employee to resign. It equates to the notion of "squeezing out" an employee (see Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, or making the position so untenable - that it is virtually worthless, to remain available to be employed. Resignation becomes 'Hobson's choice'. An employer might manipulate a set of circumstances to produce such a result. Motivation for doing so may have little, or nothing, to do with an employee's work performance, attitude or behaviour. The employee may be totally oblivious as to why the employer wants him/her out - and never finds out. However, these are not the circumstances revealed in this case. I am satisfied that the company directors had no intention to reduce the applicant's hours, or force his resignation. I accept Mr Fisher's bona fides in this regard. However, Ms Lascelles and Ms Campbell may well have had other ideas. I refer to Ex'6', the e-mail conversation between Ms Lascelles and Ms Campbell, on 27 May concerning an employee named Ben. He had been left off the roster and remained completely off roster from 14 June onwards. The conversation is instructive: 6.05 So what did you want me to do about Chris? (the applicant) I have also left Ben off the schedule for well obvious reasons [delete]. 6.06 I'm not sure what the situation is with Chris to be honest. Can we just put him on as usual but not with new staff? Good move re Ben. I'll call him and let him know that we need to train up all the new staff so don't have any spare shifts. This is a delicate one. In my opinion, this conversation evinces a clear impression that changing the roster was a device to remove Ben from the roster. It was being suggested that the roster be similarly used to reduce the applicant's hours and, perhaps, encourage his resignation. At best, this conversation is entirely inappropriate and reveals an intent which is open to serious question. Strangely, however, another conversation earlier in the day begins with Ms Campbell expressing satisfaction with the way the applicant had opened the shop. The conversation soon develops into a concern that there was a lack of confidence with him opening up. This is a curious and suspicious shift in position. B) There is clear evidence that Ms Lascelles was less than impressed with the applicant. I find that Ms Lascelles's complaints were more reminders commonly made by a superior to an employee and had little basis in real or serious performance related issues. C) Ms Lascelles attests to not being " overly impressed with his (the applicant's) performance" and that he had not shown himself to be as reliable and committed as other staff members. Ms Lascelles gave oral evidence that, at no time, did she raise her concerns with the applicant's performance, let alone do so formally, through a counselling, or warning process. The tenor of her affidavit and oral evidence reveals and underlying personality clash. Her approach was unprofessional and clumsy. I accept that she lacked supervisory skills and experience to handle her working relationship with the applicant effectively. Nevertheless, the applicant was entitled to regard her attitude toward him as hostile and further evidence of management's desire to force him out. D) Ms Lascelles's e-mail communications with Ms Campbell reflect adversely on both of them. Ms Lascelles' involvement displayed weak management skills and poor judgement. Ms Campbell was not the applicant's supervisor. She had no right to be used as a conduit to Ms Lascelles by reporting to her on the applicant's behaviour or performance. Not until later was the applicant aware Ms Campbell was "dobbing" him in to Ms Lascelles. Ms Lascelles says in one e-mail exchange that she hopes Ms Campbell is deleting the conversation. One might properly draw the conclusion that Ms Lascelles knew these secretive, critical conversations were wrong and details should be expunged from the computer. E) While I accept that there was a meeting of management in late June which decided to reduce costs by a cut in overall hours, I am satisfied that the cut in hours was unfairly apportioned to the applicant (from an average of twenty to 4.5 hours). In any event, the policy seems to be, at best inconsistent with new staff being engaged, and other employees not suffering cutbacks. The employer's offer to provide more hours to the applicant is corroborative of this inconsistency. It is open to conclude that the reduction in hours was a device used by Ms Lascelles and Ms Campbell as a surreptitious means of expressing their dissatisfaction with the applicant. It was entirely misconceived and unfair. F) The applicant firmly believed his reduction in hours was a direct consequence of his refusal to abide by the company's policy on illegal material. Was it a valid and reasonably held belief? The evidence discloses that Ms Drury had warned the applicant on 1 June 1999 that a failure to agree with the policy might result in management taking further action. The applicant asked if this meant losing his job. Thus, in the context of the warning and the applicant's belief that he might lose his job, it is not a significant leap to a validly held conclusion that a reduction in hours, a few weeks later, was a disciplinary measure taken against him. He expressed this view to Mr Fisher on 19 August. Mr Fisher didn't disavow him of the view. He did, nevertheless, increase his hours for the following week; seemingly unaware the hours conflicted with the hours worked at Grace Bros. G) Even if I accept that Ms Lascelles had reduced the applicant's hours for the reasons she stated (see para 61), the applicant was never told it was because he was the least flexible, not as reliable or committed as others or that he had a second job. He was entitled to know the reasons and be given an opportunity to defend himself. This was denied to him. Mr Fisher seems to think the only reason was related to the applicant failing to attend meetings. Such an allegation had been satisfactorily rebutted by the applicant. 105 It seems the new employees, starting out as casuals and demonstrating potential, make a rapid rise in promotion. It is unfortunate, however, that promotion is not always accompanied by appropriate supervisory or management training. Mr Fisher gained rapid promotion from a casual to Operations Manager in three months. Mr Fisher's evidence was that he was not aware of the shifts worked by the applicant at Grace Bros. In my view, it was not unreasonable to expect that he should have been. The applicant's arrangements were held in an e-mail in his personal file kept at the Oxford Street store. Having assumed responsibility for the store, it was reasonable that he would acquaint himself with the history and requirements of the store. It was a small store with only a few staff. 106 There is much about the applicant, disclosed in his behaviour and from his demeanour in the witness box, which leads to a conclusion that he is a witness of credit. He is a hard working young man, juggling a number of jobs and working irregular hours. There were no performance related issues relied upon by the respondent. He has strong personal convictions which are to be applauded. There was, however, some criticism of him taking home hard copy e-mails and messages without authorisation. He acknowledged he had not sought, or received permission, to do so. In the context of his fears that his job was in jeopardy and in view of the idle and damaging gossip between Ms Lascelles and Ms Campbell, it is hardly surprising that he might seek to retain some evidence to protect his position lest it be erased from the computer system. I hasten to add, I do not condone his removal of company records; but they were not confidential and were inappropriately used as a basis for impugning his employment. 107 Similarly, Mr Scheib attacked the applicant's credibility for failing, in his first statement, to record the precise words in various crucial conversations. In my view, these are discrepancies of omission, rather than direct conflict. It does not materially affect the substance or intent of the conversations. In addition, it should be remembered that the applicant prepared his statement without legal advice or assistance. It is a little harsh to be critical of an unrepresented litigant for a failure to be technically precise. It is not an uncommon problem and should be treated with caution. Accordingly, I draw no adverse inferences from the omissions. Hurt and Humiliation 108 Ms Rudland, submitted that any compensation order, pursuant to s89(5), should take into account the "hurt and humiliation" suffered by the applicant. Presumably, I would be doing so under the wide scope of s88(f) which allows the Commission, in determining an applicant's claim, to take into account "Such other matters as the Commission considers relevant". 109 I was not provided with any authority in support of this proposition, although the Commission is aware that in a recent decision of the Australian Industrial Relations Commission in Liu and Ors v Coms 21 Ltd (Giudice P, Duncan DP, Larkin, C Dec 193/00 M Print S3571) a Full Bench of the Australian Commission, on appeal, discussed the terms of s170CH(3) to (7) of the Workplace Relations Act 1996 and a decision of the Full Court of the Industrial Relations Court in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 which permitted compensation for "shock, humiliation and distress". The Commission said: If the current Act was intended to overrule Burazin one would expect a specific indication of that, given the terms of s170CH(7), rather than the minor changes in phraseology to which Mr Constance referred. We have concluded that the relevant words in s170CH(6) should be construed to mean only that where the Commission considers that reinstatement is inappropriate it may make an order for compensation as an alternative remedy. We do not think that such a construction does any violence to the ordinary meaning of the words used. We reject the submission that the terms of s170CH(6) do not permit the Commission to order compensation for shock, humiliation and distress. 110 The Commission then discussed the extent of the evidence before the Commission at first instance, and upheld the appeal on the basis that the original matter was not approached "by reference to the evidence, such as it was, of the affect their dismissal had upon the applicants in this case". 111 It is trite to note that Liu was decided under a different legislative scheme and determined according to its own particular set of facts. 112 Ms Rudland adduced no evidence as to the nature, or extent of the "hurt and humiliation" alleged to have been suffered by the applicant. Accepting that the legislative distinction is not decisive, and assuming I have the discretionary power to do so, I am not persuaded that this is a case which would warrant a finding that the applicant has suffered "hurt and humiliation", justifying compensation. The question, of whether compensation for hurt and humiliation is an available, remedy under ch 2 Pt 6 of the Act, cannot be answered in light of the scant submissions put in this case. It may well, in futuro , arise in another case. However, a proper evidentiary case will need to be put and made out before this question is able to be authoritatively determined. FINDINGS 113 For the reasons earlier discussed, I am satisfied that: 1 The actions and behaviour of the employer were such as to force the applicant to resign. 2 The applicant was entitled to hold a belief that he was forced to resign. 3 The termination of employment was a "constructive dismissal" within the contemplation of the authorities discussed herein. 4 The dismissal was "harsh unreasonable and unjust" within the meaning of Ch 2 pt 6 of the Act. 5 Reinstatement is inappropriate and impractical. 6 Compensatory relief should be ordered. ORDERS 114 Pursuant to s89(3) of the Industrial Relations Act 1996, the Commission orders that: 1 Global Gossip Pty Ltd shall pay to the applicant, Mr Christopher James, an amount of $2,600 representing ten weeks' salary at an average of twenty hours per week. 2 The above amount shall be paid within twenty-one days of today. 3 Proceedings in matter IRC4997/99 are formally concluded. Peter Sams Deputy President 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.