Industrial Relations Commission of New South Wales CITATION: Deckers v The Frank Whiddon Masonic Homes of NSW [2005] NSWIRComm 1104 APPLICANT Hilary Christine Deckers PARTIES: RESPONDENT The Frank Whiddon Masonic Homes of NSW FILE NUMBER(S): 6823 of 2004 CORAM: McLeay C CATCHWORDS: Termination of employment - unfair dismissal - permanent part-time employment - claimed constructive dismissal - no procedural unfairness - applicant resigned - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Clark v Pittwater RSL Club Limited ]1998] NSWIRComm 637 James v Global Gossip Pty Ltd [2000] NSWIRComm 43 Staal and Tupene and HREA (on behalf of Nagy and Ors) v Western Sydney Area Health Service [2004] NSWIRComm 27 CASES CITED: Allison v Bega Valley Council [1995] NSWIRComm 175 Rapp v Wauchope RSL Club Ltd [1995] NSWIRComm 233 Ward v Mobile Innovations Limited [2002] NSWIRComm 28 HEARING DATES: 07/04/2005; 07/05/2005 EXTEMPORE JUDGMENT DATE : 07/05/2005 APPLICANT: Mr T Feerick, Solicitor Frontier Law Group Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT: Mr C Wurf Manager, Workplace Relations Aged Care Association Australia - NSW DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MCLEAY C 5 July 2005 Matter No IRC 6823 of 2004 Hilary Christine Deckers and The Frank Whiddon Masonic Homes of NSW Application by Hilary Christine Deckers re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1104 1 This is an application by Hilary Christine Deckers against The Frank Whiddon Masonic Homes of NSW ("FWMH") re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). Ms Deckers was employed as a permanent part-time Care Service Employee grade 1 under the Charitable Sector Aged and Disability Care Services (State) Award 2003 at Easton Park, a facility operated by FWMH. 2 Easton Park comprises 196 high care beds and 225 low care beds across seven facilities at Glenfield where there are also 27 self care units. FWMH is a charitable organisation providing care and accommodation to aged and disabled persons. FWMH currently operates 20 complexes across New South Wales employing approximately 1200 staff including about 460 staff at Glenfield. 3 Ms Deckers has been employed at Easton Park since 6 February 1985 and as a permanent weekend employee since 12 April 1986. 4 On 1 November 2004 Ms Deckers went to see her immediate manager, Mr Bryce Williams, the Hospitality Services Manager for Easton Park. She put her uniforms on a chair and when asked "what's this?" she said, "my resignation". Ms Deckers said she resigned because she was forced to do so by Mr Williams. She said she wanted to stop him harassing her by continually telephoning her at home and requiring her to work Mondays and Tuesdays. She referred to her increasing depression, which she said was due to her work place conditions. Ms Deckers was on anti-depressant medication and was found to be unfit for work by her doctor. 5 The respondent on the other hand said that they had not done anything to force the dismissal of Ms Deckers but that she had done so on her own accord. Her resignation had been accepted when she presented it. It had not been expected. 6 Ms Deckers gave evidence about her history of depression and her difficulty with a range of work place issues. She had been provided with disciplinary notices, had submitted a workers' compensation claim and that claim had been rejected by the insurer. She made no reference to the disciplinary issues in either her statement at first instance or her statement in reply filed in these proceedings. While acknowledging her receipt of the letters and her requirement to attend a disciplinary meeting, she gave no explanation of her behaviour, the subject of complaints to her manager. Her manager had dealt with these complaints in what he said was the usual and appropriate way and had assessed that Ms Deckers would benefit from a change in circumstances. 7 Ms Deckers reported that she had had no problems with work prior to Mr Williams arriving at Easton Park. Mr Williams had been appointed Catering Manager from 29 April 2002 and was promoted to the position of Hospitality Services Manager on 1 March 2005. In both positions he had direct line management responsibility for Ms Deckers. 8 Ms Deckers reported that she had been suffering depression and was distressed in the work place since May 2002 "due to the poor business practices adopted by Easton Park resulting in serious breaches of occupational health and safety requirements". She said that by September 2002 the depression was increasing in severity and that she told Mr Williams at this time that she was suffering from work place related depression and that she was on prescribed medication for it. Ms Deckers applied for and was granted leave and returned to work in December 2002. 9 In March 2003, Ms Deckers attended a meeting with Mr Williams to discuss a complaint he had received about her. She was "very upset and crying". Mr Williams' response, as reported by Ms Deckers, can only be described as sympathetic. She said that he said, "My dad suffers from depression so I understand what you are going through. If there is anything I can do to help you I will". 10 In September 2003 Mr Williams moved Ms Deckers from Raines House to the Units at Easton Park. Ms Deckers complained that she had worked in Raines House for 12 years and developed relationships with the clients. In moving to the Units, because they were low care accommodation, there were an increased number of residents to look after and she had no additional training for this function and her requests for assistance were denied. Ms Deckers said that her depression worsened as a result of this move. She said "I had no shift partner to work with at the Units, as is the usual practice at Easton Park, and therefore I had to do the work normally performed by two people by myself and run from level to level in the Units while suffering from depression". Mr Williams said that it was his policy to rotate all staff through a range of positions in the same classification, and that the work required of Ms Deckers was the same as that required of other staff in the same position. 11 On 3 February 2004 Mr Williams discussed, on the telephone with Ms Deckers, a complaint he had received against her. He did the same on 9 March 2004 when a second complaint was received about Ms Deckers' work. Mr Williams said that he used the telephone, amongst other means of communicating with weekend staff, because his own work was basically Monday to Friday. He said he occasionally called in on weekends to see how things were going. Later, in May 2004, when Ms Deckers was distressed at work one day she received comfort and assistance from Ms Miriam Godbee and Ms Cheryl Standring. Ms Standring suggested that Ms Deckers put her concerns in writing in a hazard form and offered to speak to Mr Williams on her behalf. Ms Deckers said that she completed a form and gave it to Ms Godbee a couple of days later, although Ms Godbee does not recall this. A handwritten letter, not a form, was provided in evidence. Mr Williams then rang Ms Deckers to organise a meeting on a date nominated by Ms Deckers. She said that during the phone call he was "very angry" which Mr Williams denied. At the meeting on 10 June Mr Williams suggested that it may be better for Ms Deckers to move to the Arthur Webb Court since she was not happy in the Units. Ms Deckers said in evidence that she did not like changes, as it took her a long term to get to know the new group of residents. 12 At the Arthur Webb Court on a day in June Ms Deckers found that some of the plates were chipped and threw them out. She said that Mr Williams got angry when she told him about this and said that the matter should have been raised at the monthly meeting. However, those meetings were held during the week when Ms Deckers was not at work. Mr Williams again denied being angry or expressing anger towards Ms Deckers. He said he simply asked her to complete the appropriate record so that the plates could be accounted for. 13 Further complaints were received about Ms Deckers' attitude and performance from both staff and residents in July of 2003. At this stage Mr Williams decided to formalise the process. He wrote to Ms Deckers asking her to attend a meeting on 27 July, Ms Deckers attended with her husband. She said, "During the meeting I was distressed, shaking and crying uncontrollably". The letter that followed the meeting was a warning in relation to the allegations of failing to complete her duties in accordance with her job description and to a desired level, and inappropriate and unprofessional behaviour. It read in part: Management wishes to advise that you will be moved to the main kitchen and placed on day shifts on Mondays and Tuesdays, under supervision, for a period of four weeks beginning from 16 August 2004. Please note that this is not intended as punishment, but aims to assist you in improving your skills in relation to resident care and assisting you in becoming more familiar with facility policies. Be aware that if your conduct does not improve in relation to the above matters mentioned, it may result in further disciplinary action being taken against you. 14 Ms Deckers reported that she was very upset on receiving the letter and went to her doctor. She has not worked since that time. 15 Ms Wake gave evidence that Ms Deckers' formal complaints were all properly followed up by Mr Williams, including the purchase of a new bain-marie. One issue is currently being resolved by way of a building programme which will provide more space for both residents and staff. 16 Ms Deckers made an appointment to speak with a member of the payroll staff with a complaint about Mr Williams. Ms Wake, being Mr Williams' supervisor, organised to hold a meeting which Ms Deckers did not attend. 17 On 6 October when Ms Deckers' sick leave was about to run out, Mr Williams wrote to her confirming that her work would be Mondays and Tuesdays in the main kitchen for four weeks. On 1 November Ms Deckers came in to Mr Williams' office bringing her uniforms, identity card and a written letter of resignation dated 31 October 2004. The letter did not give reasons but Ms Deckers in her witness statement said that she resigned because she was forced to do so by Mr Williams for the following reasons: 1. I could not work on Mondays and Tuesdays and Mr Williams gave me no other option. 2. I was increasingly depressed due to my work place conditions and on anti-depressant medication. 3. I was found to be unfit for work by Dr Ayoub. 18 Mr Williams in his affidavit said: At no time was Hilary Deckers terminated from her employment with Easton Park. At no time was Hilary Deckers threatened with dismissal from Easton Park. He confirmed that Ms Deckers' prior work record was not in issue and that he was dealing with the complaints against her in terms of the normal policies and procedures of FWMH. 19 Mr Feerick submitted that Mr Williams was well aware that Ms Deckers' depression was work related. I do not accept this is so. Mr Williams denied that Ms Deckers gave him any impression that her depression was work related during their initial discussion in September 2003. The WorkCover medical certificate provided by the applicant's general practitioner, Dr Ayoub, was issued after the work performance issues had been discussed with Ms Deckers and after the letter was sent to her requiring her to work on Mondays and Tuesdays for a limited period. 20 Under cross-examination Ms Deckers confirmed that she had received no suggestion or advice from anyone associated with the respondent that she should resign; she had not kept her appointment with Ms Wake to express her concerns about Mr Williams; and Mr Williams had not contacted her by telephone or letter in the weeks prior to her submitting her resignation. 21 Whilst Ms Deckers stated that she was afraid of Mr Williams, there was nothing in the evidence or in his style or demeanour to suggest that the fear was caused by Mr Williams. Rather, on the medical report provided in evidence by the applicant, it appears that she had suffered from adjustment disorder and has always experienced high levels of anxiety. 22 Mr Feerick for the applicant submitted that the respondent was unreasonable in moving Ms Deckers from weekend work to weekday work after a large number of years working weekends. I find the circumstances of this case are distinguishable from those in Clark v Pittwater RSL Club Limited [1998] NSWIRComm 637, to the extent that Ms Deckers was required to work week days for a limited period of four weeks, without change to her role or duties. In addition, between the notice of 2 August and the termination of the employment relationship on 1 November, she had a period of two months to consider her options, to seek advice (which she did) and to discuss alternatives with her employer (which she did not). Mr Williams gave evidence that he has been flexible when asked to do so by other staff in similar circumstances, and I have no reason to believe that Ms Deckers would not be granted the same consideration if she had only requested it. 23 The instruction to work on Mondays and Tuesdays for a period of four weeks was not extraordinary in the circumstances. It was normal procedure by the respondent following issues of work performance remaining unresolved over a period of time. Child care arrangements for Ms Deckers' sons, aged 13 and 15, were not even raised by Ms Deckers with the respondent. She did not explain to her employer her reason for non-attendance at the meeting arranged with Ms Wake. She did not attempt to discuss any alternatives with Mr Williams or Ms Wake, or even to discuss her concerns with Ms Godbee, with whom she evidently had a satisfactory relationship. 24 The circumstances in this case are also distinguishable from those in James and Global Gossip Pty Ltd [2000] NSWIRComm 43 where the actions and conduct of the respondent in that case were such as to have been found to have forced the applicant to resign. The events in Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27 are similarly distinguishable. 25 It was revealed in evidence that the policy of the respondent was to ensure that the temporary arrangements for a change of shift would not result in any loss of pay during that period. It may have reduced Ms Deckers' distress a small amount if this information had been provided in writing in the first instance, that is, in the letter of 2 August. However, I am not satisfied that it would have made a significant difference to Ms Deckers' decision not to return to work. 26 The verbal evidence of Mr Williams was entirely consistent with what was written in his affidavit and with the evidence of other witnesses for the respondent, and was entirely credible. That Ms Deckers was feeling "terrified" by Mr Williams cannot be found, on the evidence, to be caused by Mr Williams deliberately or otherwise. Mr Feerick referred to Ward v Mobile Innovations Limited [2002] NSWIRComm 28 in regard to the conduct of the respondent being different to their intention. In this case I am satisfied that neither the conduct nor the intention of the respondent was at fault. 27 Mr Feerick submitted that Ms Deckers was not able to cope with her work without assistance, but that the assistance offered, that of supervision of Mr Williams on Mondays and Tuesdays, was not appropriate. In fact the evidence showed that the solution offered was completely in accordance with the respondent's normal policies and procedures. Mr Williams was at all relevant times Ms Deckers' supervisor. The supervision offered on Mondays and Tuesdays would be indirect. Mr Feerick also submitted that there was no chain of command in the catering area, unlike that which existed in the nursing stream. This submission was contrary to the evidence which showed there was a Team Leader in the kitchen who provided direct supervision of the catering staff and who would continue to do so regardless of the days of the week. 28 Mr Feerick made a number of further submissions contrary to the evidence. For example, he said that Mr Williams did not address Ms Deckers' concerns about the workload. The evidence of both Mr Williams and Ms Wake showed that he had in fact implemented a range of strategies to assist her on both a short term and long term basis. In addition, Mr Feerick suggested that Mr Williams was investigating Ms Deckers' work performance at the same time as her complaints against him were being investigated. This was not so. No investigation into Mr Williams had commenced since Ms Deckers had not met with Ms Wake and so had not made any complaint about Mr Williams. These examples are not exhaustive. 29 In all the circumstances I can only conclude, on the evidence, that Ms Deckers' anxiety and depression which led to her resignation followed the normal and appropriate response by the respondent when complaints were received from staff and residents about Ms Deckers' work performance. 30 As Mr Wurf submitted, there cannot be a claim for unfair dismissal without there first being a dismissal. It was not the case here, as it was in Allison v Bega Valley Council [1995] NSWIRComm 175, that there was conduct by the employer that was the effective cause of the termination of the applicant's employment. The employer had expressed no desire to bring about the termination of the contract of employment, either by word or deed. The response to receiving a complaint against the applicant was in accordance with the normal practice of the respondent, and could not be considered to be unfair. Mr Williams' explanation for contacting Ms Deckers by telephone was reasonable; her reaction - fear of answering her telephone - was not. 31 Mr Wurf submitted that the respondent had fulfilled the requirements of procedural fairness as established by the Commission, citing Rapp v Wauchope RSL Club Ltd [1995] NSWIRComm 233. I am satisfied that this is so. Mr Feerick submitted that Mr Williams erred by not inquiring as to the effect on Ms Deckers of a move to week day work. It would, in my view, be improper for him to inquire into details of the impact of work on any employees' private life or home life, unless such issues were raised first by the employee. 32 Indeed, Ms Deckers was aware of her rights to raise a concern with her employer. During a conversation following her written complaint about her workload and some safety issues she threatened to go to the Board and was made fully aware of her right to discuss any issues with Ms Wake. She exercised this right by telephoning the Human Resources office of the respondent and subsequently setting up an appointment to meet Ms Wake. That she did not keep the appointment is a matter for herself. It was available to her to speak to Ms Wake rather than to meet with Mr Williams to return her uniforms and provide her written resignation. 33 Sadly, Ms Deckers has been out of work since 1 November 2004 due to her ill-health. This was not the fault of her employer. Having written her letter of resignation one day and delivering it on another, returning her uniforms at the same time, it cannot be said to have been a spur of the moment decision. 34 Notwithstanding Ms Deckers' ill-health, I respectfully agree with the comments of Grayson DP in Ward, where he said: In that regard, I bear in mind and with respect agree with Mr de Meyrick's submission that contracting parties should conduct themselves in their contractual relationships on the basis of mutual good faith ( Lewis v Motorworld Garages Ltd [1936] ICR 157; Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 1 WLR 589) and further, that there is an implied term in every contract of employment that neither an employee nor an employer will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or damage the relationship of confidence and trust between that employer and employee ( Malik v Bank of Credit and Commerce International S.A. [1997] 3 WLR 95, I do not think those principles have been offended here because among other things, the respondent on my view of the evidence was within its rights to raise with the applicant and to pursue its ongoing concerns as to her work performance and being "good and considerate" ( Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666) does not, it seems to me, require an employer who perceives the need to manage unsatisfactory work performance, necessarily to desist for fear of giving offence to or otherwise upsetting the employee/s concerned. 35 Ms Deckers was fully aware of the context in which her actions were situated. Mr Williams had discussed complaints from residents with her in February and April 2004. I cannot accept that her depression was caused by the respondent or that she was not aware of alternatives to resignation. It was necessary for him to manage work performance issues for the sake of the applicant, as well as in the interests of residents and other staff. 36 Mr Wurf submitted that the application was fundamentally misconceived in that reinstatement was not sought and that compensation could not have been ordered where the applicant has had medical certificates for the entire period between the time of the termination of her employment until now and indeed continuing through to August 2005. However the respondent did not apply for costs in these proceedings so as not to penalise the applicant any further. 37 Having regard to all the evidence and the submissions made in these proceedings, I am not persuaded that the applicant was constructively dismissed. I am satisfied that she made a considered decision to resign from her position. It follows that the Commission does not have jurisdiction to intervene in this matter. 38 The application is dismissed. 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