Industrial Relations Commission of New South Wales CITATION : Shankar and Neumo Packaging Systems Pty Ltd [2000] NSWIRComm 227 APPLICANT PARTIES : Nand Kishore Shankar RESPONDENT Neumo Packaging Pty Ltd FILE NUMBER: 6891 of 1999 CORAM: Sams DP Termination of employment - unfair dismissal - actions of employer and employee - resignation of employee - whether applicant dismissed - jurisdiction of Commission - principles considered. CATCHWORDS : Held, applicant not dismissed - no action by employer to effect dismissal - applicant refused reasonable instructions - bona fides of applicant questioned - applicant resigned - lack of jurisdiction - application dismissed - notice of motion as to costs. LEGISLATION CITED : Industrial Relations Act 1996 s84 Allison v Bega Valley Council (1995) 63 IR 68 McCabe v New South Wales Police Service (unreported) Full Commission, Matter IRC3112 of 1994, 3 July 1996 Bayley Trading Co and NSW Sales Representatives & Commercial Travellers Guild, 1979 AR 392 Mohazab v Dick Smith Electronics (1995) 62 IR 200 Western Excavating (ECC) Ltd v Sharp, Lord Denning, CASES CITED : 1978 ICR 221 Hall and Australian Power Industries Pty Ltd (unreported) Sams DP, Matter IRC4615 of 1998, 12 March 1999 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Claric 218 Pty Ltd t/as Sanity Music v Meldrum, 91 IR 296 St Vincents Hospital Sydney Pty Ltd v Harris (unreported) Peterson Schmidt JJ, O'Neill C, Matter IRC5932 of 1998, 28 May 1998 Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999 Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000 HEARING DATES: 07/17/2000 DATE OF JUDGMENT: 11/10/2000 APPLICANT Mr N Shankar, unrepresented LEGAL REPRESENTATIVES: RESPONDENT Ms E Devine, Employers' Federation of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 10 November 2000 Matter No IRC99/6891 NAND KISHORE SHANKAR AND NEUMO PACKAGING SYSTEMS PTY LTD Application by Nand Kishore Shankar 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 Mr Nand Shankar ("the applicant") seeking relief in respect to his alleged unfair dismissal by Neumo Packaging Systems Pty Ltd ("the respondent") on 3 December 1999. 2 At directions and conciliation proceedings on 28 February 2000, both parties were unrepresented. Mr K Mahoney, the employer, appeared with Mrs J Mahoney and submitted that he had never dismissed the applicant. This defence became the pivotal issue in the arbitral proceedings and one which plainly involves whether the application, as a matter of jurisdiction, is competently before the Commission. 3 Despite this submission, I directed the parties to confer. No settlement was reached and the Commission chaired private conferences on 14 March. Again, no settlement could be reached. Pursuant to s87, I set the matter for hearing and issued directions for the filing and service of affidavit material. 4 The matter proceeded to arbitration on 17 July; Ms E Devine, from the Employers' Federation of New South Wales, now representing the respondent. 5 At the hearing, the applicant continued to represent himself and gave evidence on his own behalf. The respondent called four witnesses: Mr Keith Mahoney - Director Mrs Jan Mahoney - Director Ms Anna O'Keeffe - Marketing Officer Mr Ernest Hillier - Electrician Factual Background 6 Mr Nand Shankar was first employed by Neumo Packaging in November 1994 as a CAD (Computer Aided Design) Operator. Neumo employs five employees in addition to the two working directors, Mr and Mrs Mahoney. The company specialises in the design and manufacture of liquid filling machinery and container handling systems. 7 The applicant was paid an hourly rate of $17.50. During his employment his hours of work were varied to accommodate his second job and study commitments. 8 His terms of employment were acknowledged by him in a letter dated 12 August 1999 (annexure B Ex'C'). Relevantly the document records at cl 1 The Hours of Work, this notation "These hours should assist you in meeting your timetable to attend class". Also relevant is cl 2 Salary, which states " your wages can be paid by direct debit into any St George Bank account only or alternatively by company cheque ". 9 The applicant claims he was dismissed on 3 December 1999. He was paid until 10 December 1999 and subsequently paid outstanding entitlements and pro rata long service leave for which there was no entitlement. THE EVIDENCE 10 The applicant provided two written statements in which he outlined the circumstances of his alleged dismissal on 3 December 1999. He challenged the respondent's claim that there was no dismissal. 11 The applicant said that on 3 December after he raised a number of issues with Mr and Mrs Mahoney, including wanting a cash cheque for his wages, both of them became aggravated and aggressive and Mr Mahoney told him to "clear the drawers and leave the premises". 12 Mr Mahoney phoned him at 6.30 that night and sought a meeting at 3.00pm on Monday 6 December when Mrs Mahoney wasn't at the office. The applicant asked for time off due to the stress he was experiencing at work. This was refused. While claiming to be dismissed, he later said that he had been forced to resign. 13 In his second statement (Ex'2'), the applicant identified a number of complaints he had with the company. He said that he had to take a second job and the company was "never flexible in accommodating his work arrangements or university course". In oral evidence, the applicant acknowledged that throughout his employment his hours varied with the agreement of the employer to suit his second job and his educational studies. His main complaint concerned the method of paying wages. The company had moved to electronic funds transfer and Mrs Mahoney was advised that each individual transfer cost $35 in bank fees. On 2 December the applicant had contacted the bank and was told the transfer fee was $1.50. The applicant did not believe Mrs Mahoney's advice and she told him she would gather further information to convince him. 14 The next day, Mr Mahoney gave the applicant a non-negotiable cheque, which was the usual form of payment. The applicant said he needed cash. He said this request made Mr Mahoney "very violent", snapping his fingers and stomping his feet. The applicant said he felt frightened and nervous, as he tried to explain he needed cash. Mrs Mahoney became involved and when the applicant told her she should have got back to him yesterday, about the bank charges, she shouted "Don't you dare speak to me like that. This is gross misconduct". Mr Mahoney then told him to go home, using the words "clear the drawers". The applicant asked if he was coming back on Monday and Mr Mahoney replied "I don't know, I will contact you and let you know". 15 Before leaving the premises, the applicant made two trips to his car, showing Mr Mahoney what he was removing. Mrs Mahoney wrote him a cash cheque and handed him a memo accusing him of wrongfully installing CAD software equipment. 16 At 9.30am on Monday 6 December, the applicant phoned Mr Mahoney to say he had a prior commitment at 3.00pm. He asked if he could come in earlier. He said Mr Mahoney rudely refused, citing his wife's presence in the office. 17 The applicant said he would come in and hand over the keys and collect the rest of his belongings. Mr Mahoney agreed and when he arrived at around 11.15am, the applicant told Mr and Mrs Mahoney he had been dismissed. Mr Mahoney said he should come to the meeting at 3.00pm, but the applicant said he had another appointment. Mrs Mahoney said that he had abandoned his employment and the applicant replied that he would "take this matter to Industrial Relations". 18 The applicant received a letter dated 6 December in which the company indicated that he had been stood down with full pay until a meeting was held to discuss the matter. He was told to attend for work and a failure to do so, by noon on 9 December, would be regarded as his abandonment of employment. 19 A meeting was held on 10 December and a transcript taken (annexure G to Ex'C'). No resolution was reached and the applicant delivered a letter to the company the same day indicating he did not wish to return to work. The letter stated: Further to our meeting today at 10.00am, I wish to make the following points clear: 1) I have been stood down from my duties as of 3rd of December 1999 for no genuine reason and told to 'clear the drawers' which now is rephrased by you as saying 'to take what you need'. 2) Being told 'not to turn (sic) for meeting to discuss the situation on Monday before 3.00pm while Jans around' stressing the fact that you don't want me to work in the same office as Mrs Mahoney. 3) Wrongfully accusing me of showing aggressive and confronting behaviour towards Mrs Mahoney and not taking into account the treatment I have been subjected to by both of you as been(sic) shouted upon and stamping of feet near my desk. 4) I have again being(sic) misled today regarding the transfer of money and being told that it is $36.00. I made an enquiry again over the phone at Seven Hills branch and talked to Les Miller and was told it will not cost anymore than $3.00 depending on type of account. Taking in view the above facts, other matters I raised with you in the meeting and fabricating the facts, discrimination, being dismissed from work unfairly, biassed(sic) treatment, etc., leaves me with no choice but to formally inform you the(sic) I cannot continue my employment with you anymore. I have been under considerable amount of stress from the day of my dismissal which has affected both my personal and family life. I consider myself both physically and mentally unsuitable to return back to my normal job in the current work environment and therefore authorise you to fill the position which I held. Please note that I no longer wished(sic) to be paid from the time of my dismissal and make arrangements to pay me my outstanding holidays and other entitlements as per State Award as soon as possible. Also submit a copy of the tape and your reply to my letter dated 8th of December. Yours sincerely, Nand K. Shankar 20 A letter from the respondent dated 14 December (Ex'G') made it plain that his "resignation" was accepted. The letter stated inter alia: ... We make it quite clear that we have not and will not terminate your services by dismissing you. We have done everything we can to resolve this situation by following the correct procedure. ... 21 In oral evidence, the applicant said he was dismissed on 3 December. He was unhappy with the memo he had received and a response to a performance appraisal in October. The day before he complained of being short of cash and that his pay cheque had taken a long time to clear. He said he had previously raised this matter with the employer. He had not made a request for a cash cheque. The method of payment had changed following a robbery at the bank and employees were asked to choose between direct deposit at St George Bank, or by company cheque. He had objected to these means of payment, although he agreed to such terms in the contract of employment. 22 Ms Devine pressed the applicant as to why he would be invited to a meeting on 6 December and attend a meeting on 10 December, if he believed he was dismissed on 3 December. He was also asked why, if he had been dismissed, he left personal belongings on 3 December, unyet he took the office keys. He explained he was in shock and simply forgot things. He added that Mr Mahoney had not asked for the keys. The applicant was asked why he continued to act as an employee, by responding to directions and attending meetings. He said he did so in order to secure his outstanding entitlements such as annual leave and long service leave. There is no evidence that his entitlements would not be paid, even though he made a complaint to the Department of Industrial Relations. The applicant gave evidence that he believed he was entitled to pro rata long service leave after five years if he was terminated. He had raised this issue with the employer on 2 December. Ms Devine questioned the applicant as to why he sought stress leave on 10 December if he believed he was dismissed on the 3rd and/or 6th. He thought he was obliged to continue talking to the employer. He was also questioned as to why he needed to resign if he had already been dismissed. He said it was incorrect to resign (T.p46). The applicant said that the conversation with Mr Mahoney on 6 December confirmed he had been dismissed. He did not believe it was reasonable to wait until 3.00pm for the meeting, when Mrs Mahoney wasn't in the office. He agreed that he did not give the employer an opportunity to correct his wrong impression that he had been dismissed. He acknowledged that he had decided he was dismissed, no matter what the employer said (T.p24). 23 While convinced he had been dismissed, the applicant conceded he had not asked to be reinstated. 24 The applicant did not rely on a number of matters stated in his application as to the reasons why he was unfit for work due to stress (see p1 and p2 of attachment). None of these matters had ever been raised with the employer. 25 The applicant said the Commission should disregard his claim that there was a "plot to force him to resign". 26 The applicant was questioned as to the transcript of the interview of 10 December. He had insisted the meeting be taped. He agreed the meeting was directed to two issues - explaining his behaviour on 3 December and discussing his grievances. 27 One of the options to resolve the grievances was for Mrs Mahoney to move to another office. The applicant did not accept this option. Other issues emerging from the transcript were an incident in 1997 when the applicant was found asleep at his desk and, on another occasion, when he spent two days doing personal work on the office computer. A few months prior to 3 December the applicant received a written warning for poor performance. 28 Ms Devine questioned the applicant as to whether he was looking for another job at the time he was allegedly dismissed as Mrs Mahoney had overheard him being interviewed on the phone. He said it was for a weekend part time job and it had gone no further. Respondent's Evidence 29 Two former employees (one since resigned and one retired) were called to give evidence as to what they had heard of the conversations involving the applicant and the Mahoneys. 30 Ms Anna Marie O'Keeffe had an office close to Mrs Mahoney and overheard the conversation on 6 December. She said the applicant had insisted the conversation of the previous Friday had become heated because Mrs Mahoney had shouted at him. Mr Mahoney had replied it was the applicant who had started the shouting and abuse. 31 Ms O'Keeffe heard Mr Mahoney repeatedly say that the applicant had not been dismissed, but told to go home and cool off. Ms O'Keeffe believed that the applicant would not accept any other outcome than he had been dismissed. 32 Mr Ernest Hillier was an electrician, employed by the company from November 1993 until retirement in January 2000. He was friendly with the applicant and was asked to act as a witness for him at the meeting on 10 December. 33 Mr Hillier said his recollections of the meeting were dominated by: i) Mr Shankar's absolute insistence that the altercation on 3 December had resulted in his dismissal; ii) The position of the Mahoney's, which was that under no circumstances had he been dismissed and that he had been informed of this fact, both orally and in writing; iii) The purpose of the meeting being to make sense of what had occurred on 3 December, in the hope that all the parties could resolve their concerns and continue the working relationship. iv) Unfortunately, Mr Shankar's continued insistence that he had been dismissed, in spite of the Mahoney's continually saying that he still had a job and in fact that he remained on full pay, prevented any resolution of the matter. (para 12 Ex'B') 34 Mrs Jan Mahoney is a Director of Neumo Packaging. Her primary duties are in administration. 35 Unsurprisingly, her version of the conversation with the applicant on 2 December differs sharply with the applicant's. Mrs Mahoney said the applicant was very aggressive, insisting that the information from the bank was a lie. Mrs Mahoney became upset, not appreciating being called a liar by an employee. When Mr Mahoney intervened, the applicant continued to complain about the time it took for his pay to be processed. 36 The following day, 3 December, as Mrs Mahoney was unwilling to deal directly with the applicant, she prepared his pay cheque in the usual way and asked Mr Mahoney to give it to him. Mr Mahoney explained that the company was exploring options in respect to internet banking. The applicant became agitated and said " she should have paid me by cash cheque ". She felt threatened and said to her husband to take back the cheque and she would go down to the bank and bring back cash. Mr Mahoney said " no " and the applicant continued his aggressive demeanour calling Mrs Mahoney a liar. She responded by saying " don't you dare speak to me like that ". Mr Mahoney told the applicant to pack up and go. The applicant asked if he should come back on Monday. Mr Mahoney had said " go home and cool off and we will talk about it on Monday ". 37 Later that day, Mr Mahoney phoned the applicant, requiring him to attend a meeting at 3.00pm on Monday. The applicant called on Monday morning saying he was unavailable, but would immediately return his keys and collect his belongings. When he arrived, the applicant refused to discuss the matter and handed over the keys. The applicant had insisted he was dismissed on Friday and Mr Mahoney insisted he was not. 38 A letter was sent to the applicant confirming he was stood down on full pay and a meeting was arranged for 10 December with Mr Ernest Hillier acting as witness for the applicant. The meeting was inconclusive. The applicant was convinced he was dismissed. 39 In cross examination, Mrs Mahoney confirmed that, had the applicant's wages been identical each week, the bank fee for a periodic payment was $1.50. However, as his wages were different each week, the cost was $35.00 for each transaction. She said there was no problem in providing a cash cheque; but the applicant didn't ask for one. 40 Mr Keith Mahoney has been a director of the company since September 1992. He had valued Mr Shankar as an employee and had accommodated his second job and educational commitments. Despite this, there were occasions where he discussed his work performance and attitude and particular problems had been corrected. 41 The applicant's response to his appraisal in October 1999 had been to list the following set of grievances: i) pay transfer to Westpac $1.50; ii) Picnic Day holiday entitlement; iii) Training CAD LT 2000 iv) Award for Draughtsmen - submit copy 42 The first issue was the subject of the conversations on 2 December with Mrs Mahoney. Mr Mahoney's recollections are the same as his wife's. I don't, therefore, repeat them. 43 The following day, Mr Mahoney assumed responsibility for paying the applicant by his normal mode of payment. Mr Mahoney corroborated his wife's version of the ensuing conversation, adding that the applicant was aggressive and repeatedly jabbing his finger towards his wife. After the applicant accused her of lying, Mr Mahoney said "pack up and go home, we will give you a cash cheque". 44 After questioning whether he had been dismissed, Mr Mahoney confirmed he had said "go home and cool off and we will talk about it on Monday". 45 Mr Mahoney corroborated his wife's version of the events on 6 December and the meeting on 10 December. On 6 December, Mr Mahoney recalled the applicant saying he was now taking the matter to Industrial Relations. At the meeting on 10 December, Mr Mahoney believed that, as the applicant was determined to take court action, the company had no option other than to allow the matter to take its course. 46 In cross examination, Mr Mahoney denied telling the applicant to "clear his drawers". He said "take what you need and go home". 47 In respect to the payment by cheque, Mr Mahoney said the applicant had made a decision to accept a non-negotiable cheque. However, he could have had a cash cheque, if he asked for it. 48 Mr Mahoney said he took none of the usual steps to effect a dismissal, such as marching the employee off the premises, putting the employee's belongings in a box or demanding the return of company property. SUBMISSIONS 49 The applicant made a brief submission concentrating primarily on the difficulties he experienced in cashing his pay cheque. He said when he put his grievances in writing, nothing was done. He said he asked for a cash cheque and in response was dismissed by being told to pack up and leave. 50 For the respondent, Ms Devine tendered detailed written submissions. Before referring to them, I should note that, as the case was listed for two days, I invited the applicant to consider Ms Devine's submissions overnight and respond accordingly. He chose not to do so. 51 Ms Devine's submissions were developed under the following headings: Was the applicant dismissed? Submissions on the law Submissions on the facts Submissions on credit Application of the law to the facts of this case Was the dismissal "unfair, unreasonable or unjust"? Circumstances of the dismissal Mitigating circumstances Orders sought 52 Ms Devine submitted that, on his own evidence, the applicant had not been able to demonstrate that he was dismissed. Consequently, the Commission does not have jurisdiction to hear, and determine the applicant's claim. 53 There is evidence from four witnesses to corroborate this conclusion. The evidence is that between 3 and 10 December, the respondent continued to act as the employer and the applicant continued to act as an employee; accepting directions from the employer, attending meetings and corresponding with the employer. 54 The actions of the employer, Ms Devine said, were perfectly reasonable and understandable, particularly in wishing to defuse a heated situation on 3 December by sending the applicant home. 55 Despite continued provocation, the employer endeavoured to discuss the matter with the applicant and resolve it. The employer's behaviour was consistent with it wishing the employment relationship to continue 56 The applicant continued to insist he had been dismissed despite the employer insisting he was not. The applicant had even decided, on 6 December, to lodge an unfair dismissal claim. 57 Ms Devine referred the Commission to a number of decisions which have discussed the notion of constructive dismissal - Allison v Bega Valley Council (1995) 63 IR 68, McCabe v New South Wales Police Service (unreported) Full Commission, Matter IRC3112 of 1994, 3 July 1996, Bayley Trading Co and NSW Sales Representatives & Commercial Travellers Guild, 1979 AR 392, Mohazab v Dick Smith Electronics (1995) 62 IR 200, Western Excavating (ECC) Ltd v Sharp, Lord Denning, 1978 ICR 221 and Hall and Australian Power Industries Pty Ltd (unreported) Sams DP, Matter IRC4615 of 1998, 12 March 1999. 58 The applicant had not raised constructive dismissal until his 31 March statement. It was not mentioned in his application. She said. it was invented by him at the last minute. 59 Ms Devine submitted that the applicant had engaged in unacceptable behaviour, wrongly accusing his employer of lying. Such behaviour amounts to misconduct. 60 Ms Devine submitted that the applicant's position was inconsistent and unexplained. He firstly said he was dismissed on 3 December, then that the dismissal was confirmed on 6 December. He then offered his forced resignation on 10 December, citing a number of grievances. These grievances had never been raised with the employer and one dated back some four years. 61 She said the applicant's evidence was inconsistent, exaggerated and unsubstantiated. 62 The applicant, she said, was considering terminating his employment at least on 2 December, when he raised the matter of pro rata long service leave. 63 The applicant had not discharged the onus of proving he had been directly, or constructively dismissed. The respondent's conduct between 3 and 10 December was consistent with a desire of maintaining an ongoing employment relationship. It was reasonable that the employer should seek a meeting with the applicant to resolve any problems. However, the applicant's employment was terminated at the applicant's initiative, as a consequence of his insistence that he had been dismissed. This was despite all the evidence to the contrary, and his refusal to resolve his grievances with the employer. 64 As a secondary submission, Ms Devine put, that, even if there was a dismissal, such dismissal was justified by the applicant's behaviour, conduct and past performance. The respondent made repeated efforts to discuss the applicant's grievances and gave him an extended opportunity to defend himself. He failed to do so. In any event, the applicant was paid $2,800 in pro rata long service leave - to which he was not entitled - and which should be taken into account. 65 At no time did the applicant seek reinstatement. This is a matter the Commission should consider pursuant to s88(e) of the Act. 66 Finally, Ms Devine made an application for costs, citing the exaggerated, inconsistent and unsubstantiated claims of the applicant and his stubborn insistence that he had been dismissed. She said the application was frivolous and vexatious and costs should be ordered pursuant to s181(2)(c) of the Act. CONSIDERATION Was there a dismissal? 67 The applicant made confusing and contradictory claims as to whether he was dismissed or forced to resign. He was unclear as to what date he alleged he was dismissed. Notwithstanding this confusion, the issue to be determined in this case is simply whether the applicant's termination of employment constituted a "constructive dismissal". 68 If, as Ms Devine contends, there was no dismissal - constructive or actual - it follows, de juris, that there is no jurisdictional basis for a claim of relief from unfair dismissal. 69 The principles the Commission is to apply in these circumstances have been variously described as "termination at the employer's initiative" or "where the conduct or actions of the employer is the real and effective initiator of the termination of employment" or "where the conduct of the employer has compelled or unduly influenced the employee to resign". 70 The oft quoted authority for these principles - particularly as it is pertinent to a forced resignation - is Allison v Bega Valley Council. At p72-73 of the 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 ensue 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. 71 The principles have been reaffirmed in a number of subsequent Full Bench cases including Clark v Pittwater RSL Club Ltd (1998) 84 IR 309, Claric 218 Pty Ltd t/as Sanity Music v Meldrum, 91 IR 296, St Vincents Hospital Sydney Pty Ltd v Harris (unreported) Peterson Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998, Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999 and Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000. 72 One must approach this matter by examining the actions and behaviour of both the applicant and the employer. Thus, the Commission may conclude, using the language referred to in Allison, whether the employer had compelled or unduly influenced the employee to resign. 73 The Employer's Actions 1) The Commission accepts that on 3 December 1999, following a heated exchange between the applicant and Mrs Mahoney, Mr Mahoney used the words " Go home and cool off and we'll talk about it on Monday ". In my view, these words could not possibly be construed, or misunderstood, such as to convey an intent of the employer wishing to dismiss the applicant. It was a perfectly reasonable response to the acknowledged heated argument between the applicant and Mrs Mahoney. It follows from this finding, that I do not accept the applicant's evidence that Mr Mahoney had said " clear the drawers and leave the premises ". Even if these words had been used, and conveyed to the applicant an intention to dismiss, the subsequent actions of the employer make it abundantly apparent that dismissing the applicant was never it's intention. 2) It is utterly inconsistent with a decision to dismiss the applicant that the employer phoned him later the same day to arrange a meeting on the following Monday. If the applicant had been dismissed, what would be the purpose of such a meeting? The employment relationship, as far as the applicant believed, had ended. 3) The applicant continued to be paid until 10 December; entirely consistent with a decision to suspend him on full pay. The employer made no attempt to pay out the employee's outstanding entitlements, until after his resignation. If he had been dismissed on 3 December, outstanding entitlements would have been paid on that day, or soon thereafter. 4) At no time, on 3 or 6 December, did the employer ask the applicant to return his office keys. If he had been dismissed - particularly in such unpleasant circumstances - it makes no sense that the employer didn't ask for the keys to be immediately returned. 5) Mrs Mahoney was prepared to move offices to avoid contact with the applicant. This was a most sympathetic and extraordinary concession from the employer. The applicant wouldn't hear of it; offering an excuse that this would be disruptive to a good work environment. To my mind, this excuse demonstrates that he was not the least bit interested in resolving his grievances or keeping his job. 6) By letter dated 6 December the applicant was informed he had been stood down on full pay. The language used is unequivocal. Nothing could have been clearer: Please be advised of your current employment situation with Neumo Packaging Systems Pty Ltd. On Friday the 3rd of December, you were stood down from duties with full pay because of your aggressive and confronting behaviour towards Jan. You were told to go home and cool off and that we would discuss the matter with you on Monday. ... At this point in time your situation is as follows: You have been stood down from duties, with full pay until a suitable resolution has been reached. As you are currently still employed with us, we require you attend your workplace and enter into discussions with us to resolve this matter. Should you not attend this office between now and 12:00 noon on Thursday 9th December 1999, we will be of the opinion that you have abandoned your employment and will therefore take steps to fill the position you currently hold. 74 The Employee's Actions 1) From 3 December until 10 December, the applicant, in my view, continued to act as if he was an employee. Such actions included: i) corresponding with the employer on 8 December seeking a meeting; ii) raising grievances with the employer beyond 3 December; iii) accepting lawful directions from the employer to attend for meetings; iv) seeking stress leave from the employer; v) attending a disciplinary interview on 10 December, insisting himself that it be taped; It makes absolutely no sense at all, that the applicant would continue to act as an employee, if he had, or even believed, he was dismissed. The applicant was well aware of his rights and entitlements. He had already contacted the Department of Industrial Relations. I do not accept his evidence that he continued to act as an employee because he feared his outstanding entitlements would be denied him. I regard such evidence cum grano salis. It is curious that he waited some weeks after his performance appraisal, when his five year anniversary had passed, to claim he was entitled to pro rata long service leave. 2) By his own hand, the applicant resigned on 10 December. It is inexplicable that he would do so, if he believed he had been dismissed a week earlier. Indeed, his evidence was that he was dismissed twice. 3) When he left on 3 December he failed to take personal items with him, such as books and food. This is inconsistent with a claim that he was told to clear his drawers and leave the premises. 4) The applicant claimed the employer was inflexible. However, the acknowledged terms of employment disclose flexible hours to accommodate his university studies and a second job. In oral evidence, the applicant grudgingly accepted the employer's willingness to accommodate his needs. 5) His extravagant claim (subsequently withdrawn) that there was a plot to force him to resign, is clearly contrary to his claim of dismissal. To my mind, the alleged plot was a complete figment of his imagination; 6) As early as 6 December, the applicant threatened the employer with an unfair dismissal claim, despite continually being told he had not been dismissed. 75 Having reviewed the evidence in this case, including the applicant's own admissions, the Commission is unable to find any basis for a conclusion that the applicant's resignation amounted to a constructive dismissal. The Applicant's Case 76 A few words should be said as to the bona fides of the applicant. I readily accept that unrepresented litigants are usually unfamiliar with their rights and obligations in presenting their own case. However, unrepresentation is not a licence for bringing claims before this Commission which are manifestly devoid of merit, or which are deliberately designed for some ulterior motive. 77 In my view, the applicant in this case deliberately set about to concoct a set of circumstances which would open up his claim for unfair dismissal. At various points in his case, when the circumstances didn't quite fit the game plan, he altered his story. The applicant was not a helpless, uninformed worker, unjustly treated by a horrible, uncaring employer. The applicant was well versed as to his rights and not at all afraid to stand up for what he believed were his entitlements. This is evidenced by his knowledge of the annual picnic day and long service leave entitlements. 78 Why, I ask rhetorically, would he wait to challenge the employer over a number of grievances until his five year anniversary had passed? Why, I ask again, would he raise, for the first time, a series of complaints (some dating back four years) in his application for relief from alleged unfair dismissal? 79 In my opinion, the applicant had no intention of remaining with the employer, but was damned sure he would screw whatever he could out of the employer before he left, including concocting an unfair dismissal. I am not in any doubt about these comments. Indeed, they are well supported by the applicant's own admission, that during his employment with Neumo, he was seeking another job, and using the employer's time to be interviewed for it. 80 The applicant's central grievance was that he wanted a new method of payment for wages. His far fetched claim that he would go hungry, if he didn't get his pay on the due day, merely confirms my lack of faith in his evidence. He had every excuse why he was so desperately in need of a changed method of payment. However, I am astonished, that someone with his knowledge and intelligence, would not have a credit card or be able to access an Automatic Teller Machine. I note also he had a second job and his wife was working. "Going hungry" would hardly seem to have been a possibility. 81 The applicant had another misconceived and ulterior motive. He believed that he would be paid pro rata long service leave after five years; but only if he was dismissed. He was inquiring about it on 2 December. This would explain his absolute conviction that he had been dismissed the following day. Of course, his view was wrong. He was nevertheless, paid pro rata long service leave to which he was not entitled. SUMMARY 82 An employer is perfectly entitled to make arrangements with an employee to discuss difficulties in the workplace. Mr Shankar was not the slightest bit interested in discussing his problems. He found excuses not to discuss the issues and doggedly maintained he had been dismissed. This is contrary to the factual position. 83 In my opinion, it didn't matter one iota what the employer said, or did, the applicant was convinced he was dismissed. He completely ignored all attempts by the employer to correct his wrong impression. 84 To my mind, his behaviour was totally unreasonable and provocative. It gives rise to a presumption that he had an ulterior motive; namely a belief that he could access his pro rata long service leave; but only if he was dismissed. CONCLUSION 85 From my earlier consideration it is unnecessary to make findings as to the merits of the applicant's termination of employment. I have found, that there was no dismissal of the applicant, and de juris, the Commission has no jurisdiction to proceed with the applicant's claim under Pt 6 of ch 2 of the Act. 86 However, I note that the applicant received $2,800 in pro rata long service leave to which he was not entitled. On the basis of what was disclosed during the course of this case, I am inclined to the view that the applicant has been more than generously treated by the respondent. 87 This application is dismissed for want of jurisdiction. 88 Any application for costs (as foreshadowed by Ms Devine) must be made by way of notice of motion filed with the Commission and served on the applicant within twenty-one (21) days of today. 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.