Industrial Relations Commission of New South Wales CITATION: ALHMWU and Blacktown Workers Club Ltd [2005] NSWIRComm 1022 APPLICANT Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch PARTIES: RESPONDENT Blacktown Workers Club Ltd FILE NUMBER(S): 5654 of 2004 CORAM: Macdonald C CATCHWORDS: Unfair Dismissal Decision - reinstatement order - non compliance by Respondent - Applicant's resignation - rescission of resignation - resignation accepted - dispute notification - Hearing - involuntary resignation arguments rejected - resignation stands. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Gunnedah Shire Council v Grout (1995) 62 IR 150 HEARING DATES: 11/09/2004; 12/07/2004 DATE OF JUDGMENT: 02/25/2005 APPLICANT Ms T Moriarty (union official) LEGAL REPRESENTATIVES: RESPONDENT Mr B Cross (barrister) DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Commissioner Macdonald 25 February 2005 Matter No IRC 5654 of 2004 ERIC CRAMP v BLACKTOWN WORKERS CLUB LTD Notification under s 130 by the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch of a dispute with the Blacktown Workers Club Ltd re non-compliance with an Order of Commissioner Macdonald NON--COMPLIANCE DECISION NSWIRComm 1022 1 This Decision arises out of a decision made by myself in which I ordered the reinstatement of a Mr Eric Cramp to his former position with the Blacktown Workers Club Ltd. I ordered the reinstatement to take effect " by no later than 13 September 2004 ." That reinstatement by a certain date did not come to pass and the reason(s) why that order did not come to pass, is the subject of my deliberations for this Decision. 2 For ease of understanding, the Commission sets out below some explanatory notes: - (a) The writing of two decisions about the same parties and the same subject may cause confusion. Accordingly, the Commission will provide differing titles for the two decisions. The first decision, in which the Commission ordered the reinstatement of Mr Eric Cramp by a certain date shall be known as the Reinstatement Decision , which was handed down on 3 September 2004 (IRC No 4756/04). The second decision is the one now under consideration. It arises out of the alleged failure by the Blacktown Workers Club Ltd to comply with my reinstatement order. This decision, now under consideration, shall be known as the Non-Compliance Decision, which has a separate matter number (IRC No 5654/04). (b) The parties to both decisions are virtually the same:- · The Applicant was Eric Cramp in the Reinstatement Decision proceedings and is represented by the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Branch ("the Union"), in the Non Compliance Decision proceedings. · The Respondent is the Blacktown Workers Club Ltd, which was represented by Mr Schmitke of the Registered Clubs Association of New South Wales in the Reinstatement Decision proceedings. The Respondent was represented by Mr Bryce Cross, barrister for the Non-Compliance Decision proceedings and Mr Schmitke appeared this time as a witness. BACKGROUND 3 On 3 September 2004, I issued a decision (the Reinstatement Decision), making the following reinstatement orders - "1. Mr Eric Cramp (the Applicant) is to be reinstated to his former position with the Blacktown Workers Club (the Respondent) by no later than 13 September 2004. 2. Mr Eric Cramp's service is deemed to have been continuous for the purpose of long service leave pursuant to the Long Service Leave Act 1955." I also declined (paragraph 38) to order that the Respondent pay the Applicant for loss of earnings as a result of the dismissal. In other words, there was no order for back pay. 4 Seventeen days later (20 September) from the date of the Reinstatement Decision, the Union filed a dispute notification, pursuant to s 132 of the Industrial Relations Act 1996 ("the Act"), stating as follows: " 4. The question, dispute or difficulty concerns the following industrial matters: A) The Respondent's failure to comply with the Order of Commissioner McDonald (sic, Macdonald) in Matter No IRC 4756/04, a claim by Eric Cramp for relief from alleged unfair dismissal by Blacktown Workers Club. " The dispute notification also advised of an application under s 380 for an order against the Respondent in respect of a small claim. 5 Compulsory conferences were held on 22 and 23 September. Ms Moriarty appeared for the Union and Mr Schmitke for the Respondent. The Union alleged that the Respondent had failed to comply with my reinstatement order, with the effect that Eric Cramp had not been put back at work at all. The Union said that that was the fault of the Respondent who had changed Eric Cramp's roster from what it had been prior to his dismissal. The Union said that Eric Cramp had become distressed by the roster change, and so much so, that he advised the Union he did not want to return to work. The Union then advised the Respondent of this decision of Eric Cramp. The next day, the Union left messages with Mr Schmitke and the Respondent, that Eric Cramp did in fact want to return to work and therefore the Union's written advice of the day before that Eric Cramp did not want his job back, was rescinded. The Union advised that the Respondent would not rescind the resignation notification. Mr Schmitke put a different complexion on the dispute notification. He submitted that Eric Cramp had decided not to come back to work and he had made that decision before he was made aware of his return to work roster arrangement. The dispute notification remained unresolved at the end of the second compulsory conference. The matter was set down for a Hearing, which took place on 9 November and 7 December 2004. 6 At the Hearing, the Applicant was represented by Ms Moriarty of the Union who called the following witnesses: · Mr Eric Cramp - the Applicant · Mr Denis Riddell - union delegate/employee of the Respondent · Mr Bob Moylan - employee · Mr John Barry - union official · Mr John Hawker - union official Note: Mr John Barry was not required for cross-examination. 7 At the Hearing, the Respondent was represented by Mr Bryce Cross, barrister, who called the following witnesses: · Mr Shaun Schmitke - industrial advocate for the Registered Clubs Association · Mr Neale Vaughan - operations manager for the Respondent · Mr Geoffrey Drummond - human resources manager for the Respondent FINAL SUBMISSIONS For the Union 8 Ms Moriarty sought, pursuant to s 137(b) of the Act, that the Commission make an order that the Respondent was to comply with my reinstatement orders contained in my Reinstatement Decision of 3 September 2004. That is, the Union sought the reinstatement of Eric Cramp to his pre-dismissal position "on terms not less favourable than he had prior to his dismissal." The words in italics are a reference to s 89(1) of the Act. The Union submitted that the Respondent had not complied with my reinstatement order, in that it placed Eric Cramp on a roster that did not represent the same shifts he had worked prior to his dismissal. Once Eric Cramp became aware of the shifts he had been rostered to work by the Respondent, he became upset and agitated and to such an extent, that he told the Union he did not want to return to the Club. The Union then facsimiled the Respondent on Thursday night, 9 Septembers, advising that Eric Cramp had tendered his resignation. The Union submitted that this resignation was caused by the Respondent rostering Eric Cramp to work shifts in a way different to his pre-dismissal roster and hence, it was submitted, making it difficult for Eric Cramp to return to work. Accordingly, the Union submitted, the Respondent had not complied with my reinstatement orders and the Respondent's conduct was the cause of Eric Cramp's resignation. Further, the Union sought not only an order of compliance for reinstatement per my Reinstatement Decision, but as well, an order that Eric Cramp be paid lost income from the date he was to be reinstated, that is, on and from 13 September 2004. For the Respondent 9 Mr Cross, barrister, submitted that the Respondent had complied with my reinstatement order but that Mr Eric Cramp did not like the terms of that order and terminated his employment by resigning his employment. Mr Cross described the Union's attempt to blame Mr Cramp's resignation on any changes to the roster he was to work upon his return to work, as an after thought, designed to deflect from the real reason for his resignation, being dissatisfaction with the reinstatement order. Mr Cross said that there had been changes to the roster that Mr Cramp had worked at the time of his dismissal - about 12 months prior. The reason for the roster changes over the ensuing year had gone unchallenged by the Union during the proceedings. (The effect of the roster changes, is that Mr Cramp would have been starting his shifts later than he had prior to his dismissal. The later starts ranged from one hour later to five and a half hours later). Mr Cross set out a chronology of events and dates going to the resignation of Mr Cramp. As to this chronology, Mr Cross submitted that: · Mr Cramp spoke to his Union six times before advising the Union that he did not wish to return to work. · The Union did not lodge a dispute notification prior to Mr Cramp's resignation in order to deal with the Respondent's alleged non-compliance with my order. · Any concerns Mr Cramp had with the roster was not raised with the Respondent prior to his resignation. · Mr Cramp had resigned his employment but, it was submitted, he only had knowledge of the span of hours of one shift only at the time of his resignation. 10 Mr Cross submitted that Mr Cramp had resigned his employment, simply because he did not like the terms of my reinstatement order. CONSIDERATION 11 The Union submitted that Eric Cramp's resignation was the fault of the Respondent who had not allegedly complied with my reinstatement order by offering a return to work roster to Eric Cramp, different to the roster he worked prior to his dismissal. The Respondent submitted that the motive for the resignation was not due to the Respondent's conduct - but that Eric Cramp was not happy with my Reinstatement Decision in that he was not given any back pay and, in particular would still be subject to on-going monitoring of his performance. The Respondent also argued that irrespective of motive, Eric Cramp had resigned his employment without knowledge of his proposed return to work roster. Accordingly, the basis for Eric Cramp's resignation was without foundation. The Respondent conceded that Eric Cramp's return to work roster was not the same as his pre dismissal roster, but rostering arrangements for employees at the Club had changed since the time of his dismissal. The reason put forward by the Respondent for the roster changes since his dismissal had not been challenged by the Union during proceedings, said Mr Cross. The Issues 12 The issues then for the Commission's consideration are as follows: · Eric Cramp resigned because of the Respondent's proposed return to work roster for him. The Respondent denied he had knowledge of the proposed roster. This raises the issue as to: What did Eric Cramp know and when did he know it? · If Eric Cramp had knowledge of the proposed return to work roster, in what way was that roster different to his pre dismissal roster and would the difference, in any event, justify his decision to resign his employment? Put another way, would any difference in the proposed roster for Eric Cramp, support the Union's claim that the Respondent had not complied with my reinstatement order? Issue: What and When? 13 The circumstances giving rise to Eric Cramp's resignation took place over a few days only, following the handing down of the Reinstatement Decision on 3 September 2004 (Friday). According to Eric Cramp's witness statement (exhibit 1), the dates and events were as follows: (a) Wednesday, 8 September - He was visiting the Club socially when he was approached by an employee and told that his name was listed on the roster that had been posted for the following week. (Under cross-examination he confirmed he did not view the roster). He received a telephone call from Ms Moriarty, union official (who did not give evidence), with respect to certain correspondence from the Registered Clubs Association. He does not give details of this conversation. He contacted Denis Riddell, the union delegate and said he explained his concerns. He does not give details of this conversation. He deposed that the shifts he had been rostered to work were different to the shifts he had regularly worked prior to his dismissal. He said: " I was rostered to work mostly night shifts on the new roster rather than the day shifts I normally worked prior to dismissal. " (paragraph 7) The Commission notes that Eric Cramp has deposed he had knowledge of the proposed roster return as of some point in time on Wednesday, 8 September. He does not expressly state as to who gave him this knowledge and he has only named relevantly, two persons in his statement: Ms Moriarty of the Union and Mr Denis Riddell. (b) Thursday, 9 September - He deposed he spoke with Denis Riddell again about his concerns. No detail is given about this conversation. He then spoke to Mr John Hawker, Assistant Secretary of the Union and told of the strain on his family and he did not want to return to work. Later that afternoon, he received a phone call from Ms Moriarty about his returning to work. He spoke to Ms Moriarty again and said he did not want to return to work. The Commission notes that some time during that day of 9 September, Eric Cramp has given the go-ahead for the Union to advise the Respondent that he was not returning to work but resigning his employment. This obvious instruction is not recorded in his statement. (c) Friday, 10 September - He deposed he spoke to Mr Riddell, Mr Hawker and Mr John Barry. (Presumably these conversations were by telephone). He phoned Mr Hawker back and advised he wanted to return to work. The Commission notes that this instruction sought to rescind his resignation instruction given the previous day. 14 In summary, thus far, a reading of Eric Cramp's witness statement as to the "What" and "When" issue, establishes that he only had knowledge about one shift only and the source for that one shift only information came from Ms Moriarty. According to his witness statement, he had resigned his employment based on information about the start and finish times of one shift only. 15 The only other person named by Eric Cramp that he spoke to, was the union delegate - Mr Riddell, whose witness statement (exhibit 4) does not assert that he had knowledge of Eric Cramp's proposed roster as of Wednesday, 8 September. His statement says that he saw the roster in the Club, the following day (Thursday, 9 September), which is the day Eric Cramp instructed the Union to advise the Respondent of his resignation. 16 Based on these two witness statements, it is clear that Eric Cramp had information about one only shift as at Wednesday. Accordingly, the issue as to "What" and "When" came down to a consideration of the events of Thursday, being the day he resigned his employment. That is, had he resigned on the Thursday before he had knowledge of the Respondent's proposed full roster for him? 17 This question of "What" and "When" was answered in an unsatisfactory way, in favour of Eric Cramp, during examination of Mr Cramp in the witness box. Eric Cramp was cross-examined by Mr Cross and said that his knowledge of the week's roster for him came to be known by him on the Thursday. (Tr 9 November - p 20) Eric Cramp was then re-examined by the Union on this evidence. Objection was taken by Mr Cross about a leading question. Re-examination continued but eventually Eric Cramp was asked to leave the court room whilst the advocates addressed the Commission as to Eric Cramp's evidence as to "What" he knew and "When". Upon returning to the witness box, the Commission asked Eric Cramp as to "What" and "When". At that point, he said for the first time that he had been told of the proposed roster on the Wednesday night by Mr Riddell. When Mr Riddell was being cross-examined by Mr Cross, he said, for the first time, that he had been told of Eric Cramp's proposed roster " by a reliable source " and he confirmed with Eric Cramp in their telephone conversation of Wednesday night, that the proposed roster comprised mainly night shifts. (Tr 9 November - p 33) 18 The Commission finds that the evidence that fell during re-examination and cross-examination is that Eric Cramp had knowledge of his roster (knowledge beyond one shift only) and he had this knowledge on the Wednesday which is prior to his resignation decision. Accordingly, he had the knowledge to be able to assert that he resigned because (in his view) the proposed roster was "mostly night shifts" and this, he said, justified his claim in so many words that the Respondent was pushing him out the door. The Commission finds it unsatisfactory that important evidence as to "What" and "When" he knew (the Wednesday night telephone conversation) was not recorded in the witness statements of either Eric Cramp or Mr Riddell. Issue: Return to Work Roster 19 In what way was the return to work roster different to Eric Cramp's pre dismissal roster and would the difference, in any event, justify his decision to resign his employment? Put another way, would any difference in the proposed roster for Eric Cramp, support the Union's claim that the Respondent had not complied with my reinstatement order? 20 The evidence showed that there was a difference in the shift times to be worked by Eric Cramp, when compared to the shift times he worked pre dismissal. The Respondent set out both lots of shifts in its written Outline Of Submissions (paragraph 6). The comparison showed a difference (in a later start time) of 1.0 hours; 1.5 hours; 2.45 hours; 4.0 hours and 5.5 hours - for Thursday to Monday. 21 Because of this difference, the Union submitted that the Respondent planned to reinstate Eric Cramp on terms less favourable to Eric Cramp than his pre dismissal terms. The less favourable terms being that he would not be working the same shifts. This caused him to be "extremely upset and agitated", said the Union in final submissions, and hence explained his resignation. 22 As shown above, the shifts were not the same as for his pre dismissal shift times. The Respondent gave evidence, per Mr Drummond (human resource manager), that there had been a change in shift rosters in the twelve months between Eric Cramp's dismissal and reinstatement order. These changes impacted on the hours worked by supervisors. Eric Cramp was a supervisor. Mr Drummond stated that the changed shift arrangements came about from the introduction of gaming technology and trading patterns. None of this evidence about the bases for changed shift arrangements was challenged by the Union. The Union did not put any submission that there was a supervisor(s) working the shift times that Eric Cramp had worked pre dismissal and therefore Eric Cramp could have worked his pre dismissal shift times on his return to work. As the Union did not challenge Mr Drummond's evidence about the bases for the change in shift arrangements for supervisors, then the Commission must conclude that there was no foundation for the Union to do so. If the Commission were to accept the Union's argument that Eric Cramp was to be reinstated on terms no less advantageous then pre dismissal, then the Commission would be ordering the Respondent to roster Eric Cramp to work shift times out of synchronisation with its current business practice as to the rostering arrangements for its supervisors. It is not the case that the Commission declines to grant the Union's relief because to do so would be seen as an interference by the Commission in the managerial prerogative of the Respondent to direct Eric Cramp to work whatever shifts the Respondent sees fit. There is a reinstatement order and as far as the Commission is concerned the Respondent has complied with that reinstatement order, having regard to the reasons put forward by the Respondent as to why Eric Cramp had not been offered the same pre dismissal shift times. There was just no evidence by the Union of discriminatory treatment by the Respondent in the rostered hours offered to Eric Cramp. This observation leads to the next point considered by the Commission in its deliberations - the lack of a dispute notification by the Union prior to Eric Cramp resigning his employment. The Respondent makes the point, and the Commission concurs, that the Union could have pursued any concern about the proposed shift times for Eric Cramp, through an urgent dispute notification listing - prior to Eric Cramp's scheduled return to work date in accordance with my reinstatement order. A compulsory conference would have dealt with the issues of concern to Eric Cramp and the Union and allowed Mr Drummond to explain (as he had in his witness statement) why those particular shift times were put forward for Eric Cramp. The latter's claim that his proposed shift times were "mostly night shifts" would have been seen to be incorrect - as he was to concede under cross-examination. (Tr 9 November - p 26) A compulsory conference would have provided an opportunity for the parties and the Commission to explore the issues of concern to Eric Cramp and the Union. Other Issues 23 The Union submitted that the return to work rostered hours for Eric Cramp breached my reinstatement order in that he was not being offered a position "on terms not less favourable than he had prior to his dismissal." The words in italics are a reference to s 89(1) of the Act. The Commission finds that the Respondent is not in breach of my order with respect to s 89(1) of the Act given the unchallenged evidence of Mr Drummond as to the changed business circumstances of the Respondent over the period of time that Eric Cramp had been unemployed due to his dismissal. 24 To the extend that the Union submitted (that is, without case law in support) that Eric Cramp resigned his employment in the heat of the moment or due to stress caused by the Respondent, this is rejected by the Commission given a consideration of the events of the Wednesday and Thursday, the latter day being the day of his resignation. The Commission has already considered the issue as to What Eric Cramp knew and When did he know it (see paragraphs 13 to 18 inclusive). The Commission concluded that Eric Cramp had knowledge about more than one shift he was rostered to work the next week and that he had this knowledge on Wednesday night. The Commission notes that Eric Cramp resigned his employment the next day on the basis of, he said, that the proposed roster for him was made up of "mostly night shifts" but he conceded under cross- examination that this proposed roster was not made up of "mostly night shifts". In other words, the basis of his resignation was incorrect. The next day, Thursday, Eric Cramp resigned his employment. The events of the Wednesday and Thursday surrounding that resignation do not assist Eric Cramp to argue that he resigned his employment in the heat of the moment or under such a stressful personal condition that he did not have his full faculties in operation. As to a resignation in the heat of the moment, the events surrounding his resignation begin with his having knowledge (wrongly based) that he would be working "mostly night shifts" and that he had this knowledge on Wednesday night. Under cross-examination Eric Cramp advised that he spoke with the Union six times before advising he did not wish to return work. He spoke over the telephone with Mr Ridell, Mr Hawker (union official) and Ms Moriarty (union official). The Union told Mr Cramp it would support him in his concerns about the proposed return to work (Tr 9 November, page 9) . Firstly, the Commission notes that he did not resign his employment in the heat of the moment when he found out that his return to work shifts were not the same as his pre-dismissal work shifts. This point in time was the Wednesday. This is the time when he would be expected to react negatively to the news of his return to work shifts. Secondly, there was no evidence before the Commission from the Union witnesses that supported a resignation in the heat of the moment. Indeed as the Commission understands the evidence, none of the Union witnesses were present, in Eric Cramp's company, when he took the decision to resign and therefore cannot and could not give an account of his person at the point in time he decided to resign his employment. The evidence of Eric Cramp himself did not support a finding of a resignation in the heat of the moment. The Commission rejects Eric Cramp's argument that his resignation was due to stress and, by inference, he had been forced to resign his employment because the stress was due to the Club's conduct in providing him with a roster made up of "mostly night shifts" - and that this was so different to his pre-dismissal roster that he became stressed. The Commission did not have before it any medical evidence to support Eric Cramp's claim as to his mental condition on that Thursday when he resigned his employment. Even if there was such medical evidence, he would still need to show that his resignation "... was a product of confusion or was involuntary": Gunnedah Shire Council v Grout (1995) 62 IR 150 at 160), Full Bench, Industrial Relations Court of Australia. The Commission cannot accept that there was confusion in the mind of Eric Cramp given the discussions that took place over six telephone calls between Eric Cramp and his union delegate and union officials on that Thursday. For example, Mr Hawker, union official, deposed that Eric Cramp was very upset and emotional and under pressure but that in itself is not evidence that Eric Cramp was of such a confused mind that his resignation was involuntary. 25 The Commission raised an issue with the parties going to the legal effect of an Order of the Commission. That is, the Commission queried whether any party could ignore a reinstatement order. The Commission had in mind something to the effect that "an order is an order is an order": and no party could ignore it. During the Hearing, both parties indicated that no case law had been found on that query of the Commission. In any event, Mr Cross for the Respondent did not support that type of concept. Having considered the matter further, the Commission places no weight on the idea of "an order is an order is an order". The reason for doing so lies behind the meaning of "reinstatement", which means reinstating the contract of employment between an employer and employee. By order of the Commission, I reinstated the contract of employment between Eric Cramp and Blacktown Workers Club. Subsequently, Eric Cramp brought his contract of employment to an end - as he was free to do so - by tendering his resignation. Accordingly, the Commission is satisfied that Eric Cramp could, at law, 7resign his employment as my reinstatement order had, by then, served its legal purpose. CONCLUSION 26 The Union has filed a dispute notification and an application for a small claim against the Respondent, arguing that the Respondent had not complied with my reinstatement order by offering Eric Cramp rostered hours of work different to that which he worked pre his dismissal some twelve months beforehand. Having considered all of the evidence, the Commission rejects the Union's claim against the Respondent. The Commission finds, as well, that Eric Cramp freely resigned his employment. Accordingly, the Commission declines to intervene in this matter any further. A Macdonald 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.