Industrial Relations Commission of New South Wales CITATION: Gibbons v. Blacktown Workers Club [2005] NSWIRComm 1035 APPLICANT Australian Liquor, Hospitality and Miscellaneous Workers' Union PARTIES: RESPONDENT Blacktown Workers Club FILE NUMBER(S): 3069 of 2004 CORAM: Connor C termination of employment - resignation - constructive dismissal - evidence of past conduct - assault - conflict in evidence - credibility of witnesses CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Allison v. Bega Valley Council (1995) 63 IR 68 Busways v. Johnson (1994) 55 IR 255 Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Gorman v. BHP Integrated Steel Division (unreported) Hales and Kerr (1908) 2 KB 601 Health and Building Surveyors' Association of New South Wales v. Strathfield Municipal Council (1987) 25 IR 359 Makin v. Attorney General for New South Wales (1894) AC 57 CASES CITED: Martin v. Osborne (1936) 55 CLR 367 Michaelis Bayley Trading Company Case (1979) AR 392 Peters v. Jenolan Caves Reserve Trust (1998) 86 IR 162 R v. Smith (1915) All ER Rep.262 Roberts v. Prince Alfred College (1979) 46 SAIR 598 Subramaniam v. Public Prosecutor (1956) 1 WLR 965 HEARING DATES: 03/02/2005; 03/18/2005; 04/01/2005 DATE OF JUDGMENT: 04/22/2005 APPLICANT Chris Acev Australian Liquor, Hospitality and Miscellaneous Workers' Union LEGAL REPRESENTATIVES: RESPONDENT Shaun Schmitke Registered Clubs Asociation of New South Wales DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 22 April, 2005 Matter No IRC 3069 of 2004 John Michael Gibbons and Blacktown Workers Club Application by the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1035 Introduction 1 Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, the Australian Liquor Hospitality and Miscellaneous Workers Union has lodged an application on behalf of its member, Mr J M Gibbons, who was employed as a barman by the Blacktown Workers Club. Mr Gibbons' services terminated on Thursday, 13 May, 2004 after almost three years of employment. He commenced employment on a casual basis but was made a permanent part-time employee in late 2002. He tendered his resignation following an investigation over an incident of alleged misconduct by him on Monday, 10 May, 2004. It is alleged he assaulted a fellow employee, Ms Susan Hansen, who was employed as a bar attendant at the club and with whom he had a personal relationship at that time. 2 In its Part 6 application the LHMWU has sought Mr Gibbins' reinstatement or, alternatively, monetary compensation in lieu thereof. The matter was allocated to me and the Registry set it down for proceedings - conciliation and directions - on Wednesday, 30 June, 2004, a mention on Monday, 19 July, 2004 and a further conference on Thursday, 5 August, 2004. Conciliation failed to settle the matter. I programmed it for arbitration on Wednesday, 2 March, 2005, Friday, 18 March, 2005 and Friday, 1 April, 2005. Mr Acev represented Mr Gibbons and the LHMWU in the hearing, calling Mr Gibbons to give evidence. Mr Schmitke represented the club in the hearing. He called two members of the management of the club to give evidence in the hearing: Mr Geoffrey Drummond, the human resources manager, and Mr Luke Walker, formerly the operations manager. He also called Ms Hansen as a witness in the hearing. 3 Significantly for my jurisdiction under Part 6, Mr Gibbons resigned. Part 6 applications apply only to cases where an employee is dismissed: S.84(1) makes that plain, viz: "If an employer dismisses an employee and the employee claims the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part." A resignation is not a dismissal for the purposes of S.84(1) and Mr Schmitke argued that the Part 6 application which the LHMWU lodged on behalf of Mr Gibbons was therefore jurisdictionally incompetent. But Mr Gibbons asserted in his Part 6 application that he resigned because the club management "pressured" him with the prospect of police action and the loss of future employment opportunities. He therefore claimed that his resignation was a constructive dismissal and, as such, fell within jurisdiction under Part 6. I will discuss this jurisdictional issue later in more detail in this decision because it is a claim which relies on my assessment of the evidence adduced in this hearing. I turn now to consider that evidence. The Incident 4 Mr Gibbons' employment with the club has not been without incident. His employment record reveals a number of occasions when Mr Gibbons' temper apparently got the best of him and he acted in a belligerent manner at the club with fellow employees, swearing at them. On Wednesday, 6 November, 2002, in fact, Mr Gibbons received a final warning over his behaviour and attitude at work. Ordinarily, an employee's past conduct is a relevant consideration to determine the fairness or unfairness when his services are terminated [Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 at p.27]. But no evidence was really led by the parties concerning the separate incidents in Mr Gibbons' past employment with the club and I believe the incident on Monday, 10 May, 2004 must be considered in isolation in this hearing. The current allegation against Mr Gibbons, from which the termination of Mr Gibbons' services flowed, stands or falls, depending upon the evidence over that incident before me. 5 Nevertheless, previous complaints made concerning Mr Gibbons' conduct at work with other staff members do support the opinion that I have formed that Mr Gibbons had a temper and a short fuse to go with it. Evidence of similar facts or acts in the past are usually not admitted into evidence. The evidence that a person has done similar acts in the past is irrelevant to show that the person did a particular act at a later time. But, as I see the situation, that is far from a hard and fast rule of evidence and there are many examples where past conduct has been received into evidence [Makin v. Attorney General for New South Wales (1894) AC 57, R v. Smith (1915) All ER Rep.262 and Martin v. Osborne (1936) 55 CLR 367]. In Hales v. Kerr (1908) 2 KB 601 the situation was explained by Channel J in the following manner: "…It is not legitimate to charge a man with an act of negligence on a day in October and to ask a jury to infer that he was negligent on that day because he was negligent on every day in September… But when the issue is that the defendant pursues a course of conduct which is dangerous to his neighbours, it is legitimate to show that his conduct has been a source of danger on other occasions, and it is a legitimate inference that, having caused injury on those occasions, it has caused injury in the plaintiff's case also…" Information concerning complaints over Mr Gibbons' past conduct comes forward in this hearing through Mr Drummond's evidence. None of the complainants actually gave evidence in this hearing against Mr Gibbons and, as Mr Acev highlighted in the proceedings, the allegations made against Mr Gibbons in those complaints remains unproven as far as these proceedings are concerned. But at least Mr Drummond's evidence confirms that such complaints have actually been made over Mr Gibbons' conduct in the past [ Subramaniam v. Public Prosecutor (1956) 1 WLR 965]. 6 Mr Gibbons had commenced an intimate relationship with Miss Hansen in late 2002. According to Ms Hansen that relationship only ended with the incident on Monday, 10 May, 2004. Indeed, shortly before the incident she and Mr Gibbons had planned an overseas holiday together which ultimately did not go ahead. According to Mr Gibbons, his relationship with Ms Hansen had cooled earlier in 2004. He claimed that the overseas trip which Ms Hansen had suggested was to help in overcoming the difficulties which had emerged in their relationship. Indeed, Mr Gibbons recorded in the written statement which accompanied his evidence that by early 2004 his relationship with Ms Hansen: "...became strained due to the increasing deceit and secretive conduct of Ms Hansen. She arranged days off and did not advise me of them, was keeping company with another male staff member to whom she had told that we (Mr Gibbons and Ms Hansen) were 'just friends'. The time that we kept together became increasingly less and less..." Ms Hansen had for a time been residing with Mr Gibbons in his sister's house but she had moved out following a disagreement with Mr Gibbons' sister. 7 There is a significant level of conflict in the evidence of relevant events before me in this hearing. In particular, Mr Gibbons' version of the incident on Monday, 10 May, 2004 is in stark contrast to the version given by Ms Hansen. That is disturbing because the differences in the evidence of Mr Gibbons and Ms Hansen may not be explained away as simply faulty recollections by them: one version of the incident on Monday, 10 May, 2004 cannot stand against the other version and therefore the resolution of this matter is dependent upon the respective credibility of those two witnesses. Somebody - either Mr Gibbons or Ms Hansen - is not being entirely honest with me in this hearing. 8 Ms Hansen was on duty at the club in the bar of the Frank Dunn Lounge on the ground floor on Monday, 10 May, 2005. Mr Gibbons was not on duty but had attended the club as a member, apparently to play snooker as he had brought his snooker cue in a case with him. The case in which he held his snooker cue was made of balsa wood, padded on the inside. Evidently the snooker cue unscrews into two parts to fit in the box. Mr Gibbons was upstairs at the club. Ms Hansen claimed that she had received a message from a supervisor that day that Mr Walker had instructed her that she was not permitted to leave the bar where she was working and visit Mr Gibbons at any time, including during her break. A workmate and friend of Mr Gibbons approached her and informed her that Ms Hansen would like to see her upstairs during her break at 2.30pm and she informed him that she was not permitted to go away from the floor on which she worked. 9 Mr Gibbons subsequently approached Ms Hansen in the bar at approximately 1.30pm. Ms Hansen asserted that Mr Gibbons "...looked angry...and was ranting and raving on...". He shouted at her: "Have you lost your mind? Are you telling me that you can't leave your area during your break? You're saying that you can't even get something from your car during your break? That's insane!" Ms Hansen responded: "No. I've been told that I can't go up to that area and that's it. I've been told not to go so I'm not going." Mr Gibbons concluded the confrontation: "See you round sometime." 10 Ms Hansen claimed in her evidence that the confrontation she had with Mr Gibbons at that time was "...short and sweet...": it may have been "short" but I am not convinced that it was "sweet" because Ms Hansen remained concerned over it later in her shift. Mr Gibbons left the bar and until the end of Ms Hansen's shift at 6.30pm she did not see him. She assumed he had left the club but she remained nervous of his conduct earlier in the day and worried that he might be waiting for her in the car park, which proved to be the case. 11 Ms Hansen exited the club in a lift. A young man, whom she claimed that she did not know got into the lift at the same time. That man, who subsequently became involved in the incident which led to the termination of Mr Gibbons' employment was not called to give evidence in the hearing. Nor has he been identified further in this hearing - except to say that Mr Gibbons believed him to be Irish. Ms Hansen assumed that he had been exercising in the club gymnasium because he was "...quite sweaty and had a jacket over his arm...". She struck up a casual conversation with the man. She commented that it was cold and the man offered to lend her his jacket. They were laughing when they exited the lift to the car park but she cannot now recall what had made them laugh. She then saw Mr Gibbons leaning on a rail near the lift doors, holding his snooker cue case. She claimed that he appeared intoxicated to her. Mr Gibbons denies that he was intoxicated. 12 Ms Hansen claimed that apparently Mr Gibbons had formed the view that the man was a friend of hers - too friendly, apparently: his subsequent conduct suggests to me some jealousy on his part. He yelled at her: "What's going on here? Am I interrupting something?" Ms Hansen claimed in an affidavit that Mr Gibbons had then added: "I should spit on you." She had claimed in a report dated Monday, 10 May, 2004 she had prepared for the club over the incident that Mr Gibbons had told her that he was going to spit on her. Mr Acev highlighted in his cross-examination of Ms Hansen that what was said in the report showed an actual intention to spit on her, whilst what she had recorded in her affidavit was not so emphatic. Ordinarily, I would be more inclined to accept what is contained in a report by a person fairly contemporaneously with the incident in question but on this occasion, in the light of the clarification she gave in the evidence in this hearing, I am more inclined to accept what she now records in her affidavit. In any event, Mr Gibbons denies that he made any comment of that nature at all. And what followed reveals a substantial conflict in the evidence of Mr Gibbons and Ms Hansen. 13 According to Mr Gibbons, he had sought from Ms Hansen a more detailed explanation of why she had refused to see him earlier in the day (not about her possible involvement with the man in the lift). Mr Gibbons was carrying his snooker cue case. He recorded in his written statement that during the conversation he: "...tapped Ms Hansen on the buttocks, not aggressively, more as a gesture of affection. She did not cry out in pain or fall to the ground. Ms Hansen seemed surprised by this gesture. She just stared out into space, not even looking at me... I had my cue case in my hand and my arms spread to my side in a questioning gesture, shrugging my shoulders..." Suddenly, Ms Hansen screamed out: "Don't hit me." Mr Gibbons said: "I'm not hitting you." 14 Ms Hansen claimed in her evidence that she had covered her face to protect herself should Mr Gibbons spit at her and she recorded in an affidavit which formed the basis of her evidence that the: "...next thing I felt a whack on the right hand side of my head and then another whack on my left elbow. I was so scared and it all happened very quickly..." Ms Hansen recorded in the report she made to the club management that she had been head-butted to the right hand side of her head and that Mr Gibbons had hit her on the left elbow with his snooker cue case. In her evidence in this hearing she indicated that she was now not so sure that the blow to the side of her head was a head-but. But she had been struck on the side of the head nonetheless. 15 Ms Hansen believes that she must have screamed out because the man she had earlier travelled with in the lift came over and told Mr Gibbons not to hit Ms Hansen. The man pushed Mr Gibbons against the rail and a scuffle developed between the two men. According to Mr Gibbons, the other man kept pushing him and trying to head-but him. Mr Gibbons claimed that he told the man: "Mate, this is my missus." And the man allegedly replied: "I don't care, don't hit her." 16 Mr Gibbons left the car park with his snooker cue case. The other man came over to Ms Hansen and asked her if she was okay, showing her his hand and claiming he had "busted" it, presumably in the altercation with Mr Gibbons. Ms Hansen claimed that the man confirmed that her head was red and bruised and asked her if she wished to go back into the club and report the incident to the police. Ms Hansen wished only to leave the car park in her vehicle and the man indicated that he would follow her out in his own vehicle. 17 When Ms Hansen got home she telephoned Mr Eddie Bellman, the duty manager of the club that night, and reported the incident. Mr Bellman took the initiative and contacted the police and a police officer visited Ms Hansen at her home later that night. The police officer took a statement, which became an exhibit in these proceedings and informed her that she should visit a medical practitioner and take out an Apprehended Violence Order against Mr Gibbons. She did neither. Ultimately Ms Hansen preferred not to take any further action over the matter. Although her personal relationship with Mr Gibbons has clearly ended, she holds no fears concerning any further threat from him and has not had any contact with him. She recognises that he has a temper and she simply suspects that something had upset him earlier on Monday, 10 May, 2004 and he had been irritated about it when he confronted her later in the car park and took it out on her. 18 Because Ms Hansen now has no personal contact with Mr Gibbons, and he presently does not work with her at the club, there is no reason for her to come into contact with him again - and she has not done so. Even were Mr Gibbons to return to work at the club, she does not believe that she would come into contact with him. The club is large and she and Mr Gibbons ordinarily worked in different areas of it. Nevertheless, she has claimed that since the termination of Mr Gibbons services from the club there has been some friction in her working relationship with some of the staff members and, in particular, a supervisor who was friendly with Mr Gibbons. Generously, she has volunteered that if Mr Gibbons resumed working at the club, she would leave and work in another related club. She indicated in her evidence that she saw that as an option because, although Mr Gibbons resided close to the club and did not drive a car to make work somewhere else further away from his residence easier for him, she did drive a car and was, consequently, more mobile and able to work some distant club. The Resignation 19 On Tuesday, 11 May, 2004 Mr Drummond summoned Mr Gibbons to a meeting arranged for Thursday, 13 May, 2004 to discuss the incident in the car park on Monday, 10 May, 2004. Because Mr Gibbons had been off duty at that time, he believed that the meeting was concerning his club membership and not his employment and he consequently did not require Mr Dennis Riddell, the LHMWU delegate at the club to be in attendance at the meeting. When Mr Drummond informed him that the topic for discussion was the incident in the car park on Monday, 10 May, 2004, according to Mr Gibbons' written statement, he responded as follows: "...I was attacked by a drunk Irishman and that I didn't wish to take the matter any further..." Mr Drummond insisted that the meeting would go ahead anyway. It appears that Mr Gibbons thought that the meeting was to discuss his scuffle with the other man whilst Mr Drummond was concerned to raise the altercation with Ms Hansen. They were at cross-purposes to that extent. 20 Mr Gibbons' employment came to an end following the meeting on Thursday, 13 May, 2004 at which Mr Drummond and Mr Walker were in attendance. There is also a conflict in the evidence of Mr Gibbons, on the one hand, and Mr Drummond and Mr Walker, on the other hand, which is important because it goes to the question of whether or not Mr Gibbons' resignation was tainted by duress to constitute the basis for a constructive dismissal. That is Mr Gibbons' claim in this hearing. 21 The meeting on Thursday, 13 May, 2004 occurred in Mr Walker's office. Mr Gibbons asserted that at the meeting Mr Walker told him of the police involvement over the incident and suggested that both Ms Hansen and the other man in the altercation "...had blood on them...". Mr Gibbons indicated in his evidence that he was confused over the allegations of violence and blood and the suggestion flowing from Mr Walker that he was entirely responsible in the incident. Mr Walker claimed that Mr Gibbons' assertions in the meeting were confusing and that he was "...all over the place with his recollection..." Mr Drummond claimed that it was very difficult to get information out of Mr Gibbons at the meeting and he was "...vague and not very precise...". 22 Mr Walker and Mr Drummond denied that either of them made any suggestion to Mr Gibbons that it would be better for him to resign. Mr Walker described the meeting in his evidence as only an investigation to obtain information from Mr Gibbons concerning his version of the incident. He would have in all probability requested Mr Gibbons to produce a written statement concerning the incident so that he could compare it with the version provided already by Ms Hansen. He claimed that it was not his intention to bring Mr Gibbons employment to an end. He thought it would be more likely that, since the incident occurred when Mr Gibbons was off duty, he would be cited as a member before the club board. For an employee to face dismissal there were more procedural steps required and, for a start, a formal response over the incident from Mr Gibbons would have been sought. Mr Walker and Mr Drummond therefore expresses some surprise over what followed from Mr Gibbons, ie that he brought the meeting to an end with his resignation. 23 Mr Gibbons recorded in his written statement that at the meeting: "...it was stated to me that, based on my history, and this recent incident, the club was strongly considering sacking me but indicated that the club would give me the opportunity to resign as it would look much better for me in trying to get work elsewhere. I was asked to leave the room briefly while (the matter) was discussed. When I was asked to come back in Mr Walker indicated to me that the club had decided to sack me. I believed what Mr Walker had said about it being '...better for me...' to resign so I said I would. I was in shock due to the implication by Mr Walker that I was lying, that I had enacted a bloodied assault on Ms Hansen, that I could expect the police to be involved and that I faced serious charges. Mr Walker then reached into a drawer and produced a resignation form, which I completed very shakily and hurriedly. I just wanted to get out of there..." That is denied by Mr Walker and Mr Drummond who claim that they had at no time suggested that Mr Gibbons resign. 24 Mr Drummond and Mr Walker claim that when Mr Gibbons returned to the meeting from the brief adjournment, he sat down and said: "I've thought about it and I might as well resign." Mr Drummond said to Mr Gibbons: "Well, that's your choice. Fine." Mr Gibbons nodded. Mr Drummond asked Mr Gibbons if he would like him to get a resignation form and Mr Gibbons replied: "Yep. That's what I want." 25 Mr Drummond obtained a pro-forma resignation form from outside Mr Walker's office and handed it to Mr Gibbons. Although Mr Drummond expected Mr Gibbons to take the resignation form away to complete, he filled in the form immediately. According to Mr Walker, Mr Gibbons was quite "...calm and collected..." and he did not believe that he was acting rashly or under pressure. However, I note that Mr Gibbons' resignation form was completed in very shaky handwriting and that he misspelt his own name in it - "Gibons" - giving the reason for his resignation that he was "...unyappy..." [sic] which suggested to me that Mr Gibbons was under some strain at the time. 26 Mr Gibbons was escorted to the lift by Mr Drummond who permitted him to leave the lift so that he could collect some medication that he had left in the first aid cabinet. Mr Drummond refused to permit Mr Gibbons to get out of the lift on the floor where Ms Hansen was working, however. Mr Gibbons claimed that Mr Drummond "pinned" him to the wall of the lift to prevent him from getting out on that floor. It seems more likely from the evidence in the hearing that Mr Drummond merely blocked Mr Gibbons with his body and prevented him from leaving the lift on that floor. I do not believe that Mr Drummond "pinned Mr Gibbons to the wall. Conclusion 27 How much of the scuffle in the car park related to personal matters - as distinct from issues in the employment - between Mr Gibbons and Ms Hansen it is not possible to determine on the state of the evidence. It seems more likely that the incident was entirely personal between them. But I am satisfied from that evidence that the altercation Mr Gibbons had with Ms Hansen was considerably more serious than he is suggesting and that she was genuinely concerned over her safety in the car park on Monday, 10 May, 2004 - and apparently had cause to be concerned. Clearly Mr Gibbons' assaulted her. His claim that he "...tapped Ms Hansen on the buttocks not aggressively, more as a gesture of affection..." is not plausible. For reasons not fully explained, he was angry at the time and acting aggressively. He had a temper and was showing it. He was apparently prepared to take out his frustrations on Ms Hansen in the car park, sufficient to agitate the interest of a man who happened to be present. It stretches credibility to breaking point to assume that Mr Gibbons was acting affectionately to Ms Hansen at the time. 28 As I indicated in my unreported decision of Thursday, 13 July, 2000 in Gorman v. BHP Integrated Steel Division [Matter No.IRC 4242 of 1999 at pp.47 and 48]: "...The gist of the assault lies particularly in the apprehension in the victim's mind. Thus a person pointing a harmless toy pistol at a taxi driver who was deceived and thought the pistol was real would still clearly be an assault [ R v. Everingham (1949) 66 WN(NSW) 122]..." The assault of an employee is clearly grounds for dismissal, even summary dismissal. Mr Walker indicated in his affidavit that during his meeting with Mr Gibbons on Thursday, 13 May, 2004: "...at one point. he made a comment suggesting that he was only pretending that he might harm (Ms Hansen)..." That would be enough to constitute assault on its own. And on that basis, in my opinion, there would be no justification for my intervention in support of Mr Gibbons were he to have been dismissed. But, in any event, Mr Gibbons was not dismissed at all. He resigned and I do not believe that his resignation may be effectively regarded as a constructive dismissal. 29 It is established that if an employee, confused and relatively powerless against an employer, is ambushed into resigning because he believed that he had no real choice in the matter, the purported resignation is not one in fact because of the threat of duress directed against him. It does not represent the employee's true intentions. In such a situation the actual termination of the employee's services is, constructively, a dismissal. Whilst the termination of employment was in form a resignation, the force applied to the employee made it a dismissal in fact. That is the interpretation which Mr Acev is advancing for my consideration in this hearing on behalf of Mr Gibbons. Mr Schmitke described Mr Acev's submissions as "textbook", implying by that expression that they were artificial and designed only to fit inappropriately with established legal principles. But they find support in the decision of the Full Bench of the Commission (Peterson and Marks JJ and Connor CC) in Allison v. Bega Valley Council (1995) 63 IR 68 where a resignation following a threat of police involvement made by an employer against the resigning employee was sufficient to make that resignation a constructive dismissal [the Michaelis Bayley Trading Company Case (1979) AR 392 at p.393, Health and Building Surveyors' Association of New South Wales v. Strathfield Municipal Council (1987) 25 IR 359 and Peters v. Jenolan Caves Reserve Trust (1998) 86 IR 162]. 30 But in my view Mr Gibbons simply volunteered his resignation because he recognised - accurately enough, in my opinion - that his conduct would ultimately have constituted grounds for his dismissal. I do not believe on the evidence before me in this hearing that the club management held resignation out to him. As Mr Schmitke submitted in the hearing, the reasoning in Allison v. Bega Valley Council (at p.72) is that the employer must have acted in such a manner as to establish that it was the "...real and effective initiator of the termination of the contract of employment...": it is not what the employee may have perceived, possibly incorrectly, to have been the case. 31 And if an employee, in full knowledge of allegations that have been levelled against him, chooses to avoid resign to avoid further embarrassment and the employer subsequently accepts that resignation, it would not properly represent a threat by the employer at all but a concession given to him by the employer. In such a case there would be no dismissal, constructive or otherwise. For instance, in Roberts v. Prince Alfred College (1979) 46 SAIR 598 Olsson P of the South Australian Industrial Court summarised the situation (at p.617) as follows: "…The substitution of the resignation for the dismissal was simply, as it were, an act of clemency accorded (by the employer) so as to minimise the prejudice to (the employee) in obtaining other employment…" Mr Schmitke speculated that Mr Gibbons may have simply been embarrassed over the incident in the car park on Monday, 10 May, 2004 and concerned to avoid any further complications and that was his motivation to resign. 32 Furthermore, if Mr Gibbons had not volunteered his resignation - and the evidence before me suggests that it was actually Mr Gibbons who chose to resign - I speculate that in all probability he would have been dismissed by the club. As I indicated earlier, it seems likely to me that such a dismissal would be neither "harsh," "unreasonable" or "unjust" to use the language of S.84(1) [Busways v. Johnson (1994) 55 IR 255 at p.261]. In this case, I would regard the club management's acceptance of Mr Gibbons' resignation to have been more in the nature of a concession the club was prepared to hold out to him, rather than pressure applied to him to influence him. 33 I note that Clause 30, Settlement of Disputes, of the Club Employees (State) Award provides, among other things, a procedure for clubs to adopt when dismissing an employee, viz: "In the case of dismissal the employer shall, without prejudice to his final rights, ensure that an employee is subject to the accepted counselling procedure, has an opportunity to answer any allegations put to him and has the opportunity of being represented by a union official in accordance with this procedure prior to dismissing the employee. The employer shall comply with this requirement by advising the employee that dismissal is being considered, that the employee has the right to be represented by a union official and allowing sufficient time for a union official to attend; provided that, where a union official does not attend within three days from the advice of the employer to the employee, the employer may deal with the dismissal without a union official being present." The meeting Mr Gibbons had with Mr Walker and Mr Drummond on Thursday, 13 May, 2004 did not comply with those conditions: for a start, an LHMWU official did not attend (because Mr Gibbons believed that he did not need one). But I am satisfied from the evidence that the intention of the meeting was to do no more than gather information concerning the incident in the car park on Monday, 10 May, 2004 (although it may no doubt have represented a prelude to further action by the club management which may in all probability have ultimately led to Mr Gibbons' dismissal). In my opinion, the meeting was not covered by Clause 30. 34 For those reasons, I do not propose to intervene in support of Mr Gibbons in this hearing. I am satisfied that the Part 6 application which the LHMWU lodged on his behalf is beyond jurisdiction as a true resignation by him. I accordingly dismiss the matter. P J CONNOR Commissioner 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.