Industrial Relations Commission of New South Wales CITATION : TWU v Orica Pty Ltd [2001] NSWIRComm 156 PARTIES : Transport Workers' Union of Australia, New South Wales Branch on behalf of Mr Bernard Jurd Orica Australia Pty Ltd FILE NUMBER: IRC 251 of 2001 IRC 534 of 2001 CORAM: Harrison DP CATCHWORDS : Unfair dismissal - employee of 181/2 years unblemished service - resignation given under duress not acted upon by employer - termination whilst suffering diagnosed stress - failure to apply employer's stress management policy - dispute re overtime availability - unregistered enterprise bargaining agreement - leadership requirement of team based organisational strucutre Held - dismissal harsh, unreasonable and unjust - reinstatement with no loss of wages or continuity of employment LEGISLATION CITED : Industrial Relations Act 1996 Cherry v Allied Express Transport [1997] 73 IR 305 CASES CITED : Ngo v Link Printing Pty Ltd [1999] 94 IR 375 Birrell v Australian National Airlines Commission [1984] 9 IR 101 Effem Foods Pty Ltd t/as Uncle Ben's of Australia v Urban [1997] 81 IR 341 HEARING DATES: 06/12/2001; 06/13/2001 EXTEMPORE JUDGMENT DATE : 06/13/2001 APPLICANT Mr A Metcalfe Transport Workers Union of Australia, NSW Branch LEGAL REPRESENTATIVES: RESPONDENT Mr C Fisher Fisher Cartwright Berriman JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 12 July 2001 Matter No IRC 251 of 2001 Notification under section 130 by Transport Workers' Union of Australia, New South Wales Branch of a dispute with Orica Explosives re threatened stoppage Matter No IRC 534 of 2001 Transport Workers' Union of Australia, New South Wales Branch on behalf of B Jurd and Orica Australia Pty Ltd Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 REASONS FOR DECISION 1 The notification and application in these matters were joined, preliminary proceedings establishing that the matters could not be resolved by agreement between the parties, resulting in arbitration proceedings on 12 and 13 June 2001. 2 In those proceedings Mr A Metcalfe appeared on behalf of the Transport Workers' Union of Australia, New South Wales Branch (TWU). Mr C Fisher of Fisher Cartwright Berriman appeared on behalf of Orica Australia Pty Ltd ('the company'). 3 Mr Metcalfe brought evidence from Mr Jurd, the applicant; and Mr Jeffrey Taylor, an employee of the company for 13 years, currently employed as a Plant Operator, and TWU delegate for two years. 4 Mr Fisher brought evidence from Mr Stephen Hodgson, an employee of the company for 12 ½ years, currently employed as Area Business Manager, Hunter Valley; and Mr Shane Moffitt, an employee with the company since 1981, currently employed as Plant Supervisor at the Mount Thorley depot. 5 On completion of hearing an ex tempore decision issued in the following terms. HIS HONOUR: This matter has been argued vigorously and competently by both parties and the evidence brought in a clear and frank manner which has been of great assistance to the Commission. I find that in the circumstances of Mr Jurd's employment, being some 18½ years of unblemished service with this employer, and the diagnosed stress supported by medical certificates tendered in these proceedings, that the purported resignation in December 2000 cannot be held to be effective. I find that there was a termination of employment by the employer on 11 January 2001. I will publish my reasons in full in due course, but I intend to order a reinstatement, without loss of wages and with continuity of service. I do not accept the division between the operation and medical matters purported by the company, nor do I accept that there has been such a change in the business circumstances so as to render reinstatement unavailable or impractical. I will be critical, to some extent, in the way in which the parties have administered the enterprise agreement. The process of posting the differences in overtime worked is appropriate and proper. There is a need however, I think, for the Team Leader to exercise some leadership in the management of that issue in order that the reasons that there is a difference between the amounts of overtime worked, become known and that remedial action be taken to bring about an evenness in the amount of overtime worked, rather than what appears in these proceedings, is simply a brawl between the employees over who might be to blame. I will publish my reasons in full and my orders to effect, in due course. 6 Reasons in full are now published. 7 On many issues of fact the parties are not significantly apart. 8 The relevant evidence is that Mr Jurd commenced employment with the company in June 1982, giving him 18 ½ years of continuous service to the time of termination of his employment. 9 Mr Jurd was employed as an operator/truck driver transporting explosive materials to coal mines in the Hunter Valley. Mr Jurd was previously employed in the capacities of operator/truck driver; supervisor; and general hand. He relinquished the supervisor's position as a result of the loss of his driver's licence for a period of two years resulting from a drink driving conviction in 1990. 10 Nothing has been put to suggest that this has been other than an unblemished record of good service to the employer up to the issues leading to the termination of employment. The actions of Mr Jurd in December 2000 and January 2001 are out of character with his employment record. 11 Employment is pursuant to the Transport Industry Interim (State) Award and in conjunction therewith, from 1 May 1997, an unregistered enterprise agreement titled "ICI Explosives TWU Hunter Valley Operations Annualised Salary Enterprise Agreement" (referred to by the parties as 'the EBA') made between ICI Explosives, now Orica Australia Pty Ltd, and the Union. The EBA provides for an annualised rate of pay which incorporates payment for 428 hours of overtime per annum. 12 The relevant provision of the EBA, tendered within the affidavit of Mr Taylor (ex 7), is: "the rates of pay are calculated incorporating payment for 428 unrostered hours per annum. It is recognised by all parties that our business is cyclical, hours worked will be monitored and hours worked will vary. It is not the intention of the parties to ensure people work a minimum or maximum of number of unrostered hours but to manage the customer requirements for each plant and to maintain maintenance, training and other operational requirements. The annualised rates shown below also provide for recognition of the responsibilities and accountabilities associated with the ongoing job redesign outlined in clause 9." 13 In September 2000 Mr Shane Moffitt was transferred to Mount Thorley from Mount Owen as an operator prior to being appointed Plant Supervisor, having been employed with Orica from 1981. 14 It was Mr Moffitt's evidence that he was aware that in accordance with the EBA employees were supposed to be arranging to work overtime within their teams so that it was evenly shared. Mr Moffitt further deposed that he became aware that the EBA required employees to manage their overtime hours so that they were all within 10% of each other at each site. 15 Mr Moffitt deposed that he became aware that some operators, including Mr Jurd, were not working their fair share of overtime. 16 Mr Moffitt put that the differential in overtime hours worked was causing some conflict between operators, frustrating the team and causing low morale. 17 It was Mr Moffitt's evidence that he started to record the amount of overtime being worked by each employee at Mount Thorley from June 2000, the practice having ceased in March 2000 when the office clerk left the company. It was Mr Moffitt's evidence that he instituted a practice of putting up a bar graph on a notice board in the crib room showing the overtime hours for the week for each employee. He deposed that this allowed each operator to observe the amount of overtime they had worked in comparison to the others and as an indicator of who should have been first to do the overtime if they were available. 18 Mr Moffitt's evidence was that overtime requirements arose at short notice to suit customer needs, and that at various times operators were unavailable due to particular commitments. Mr Moffitt deposed that he recalled occasions when Mr Jurd was unavailable to work overtime or had not attended work because he needed to care for his wife who had a neck injury. The uncontroverted evidence is that Mr Jurd's wife has a serious neck injury displaying intermittent symptoms which affect her with varying degrees of disability, resulting in hospitalisation approximately once a year. 19 Mr Moffitt deposed that he had never refused Mr Jurd a request to take time off or directed him to work overtime when he was not available. 20 Mr Moffitt deposed that there was only one other employee, Bob Cook, who worked very little overtime each week as he also had to care for his wife who suffered a serious illness. Mr Moffitt deposed that there were some weeks where despite Mr Cook's situation, he was able to work more overtime than Mr Jurd and that whilst some employees were not happy about the uneven distribution of overtime, all appeared to accept Mr Cook's situation. 21 Mr Moffitt deposed that overtime was discussed at some toolbox meetings, but not all. A toolbox meeting was held on 30 November 2000 in which the uneven distribution of overtime was discussed, Mr Moffitt placing a bar graph of overtime hours for each employee open for discussion. 22 An operator, identified as Mr Frank Nemeth, was critical of Mr Jurd's overtime performance which led to a heated exchange between them. This exchange included Mr Jurd's criticism of the method of calculation of overtime, an issue which Mr Moffitt deposed had been raised previously by Mr Jurd. It was put that in culmination of the exchange Mr Nemeth said to Mr Jurd words to the effect: " You should leave if you do not want to work to the EBA", 23 To which Mr Jurd responded by giving Mr Nemeth a push on the arm. He then picked up his bag, left the meeting a departed the site. 24 Mr Moffitt deposed that he telephoned Mr Jurd at 10.30am that morning to invite him to a meeting with Mr Hodgson, Mr Taylor and himself concerning the events of the toolbox meeting, to which Mr Moffit deposed Mr Jurd responded by saying: "I am not going to put up with this shit any more, I've had a gut full. I'll be handing in my resignation at the meeting with Steve tomorrow". 25 Mr Jurd attended the meeting on Friday, 1 December 2000 with Messrs Taylor, Hodgson and Moffitt in Mr Moffitt's office at the Mount Thorley depot. It is Mr Moffitt's evidence that Mr Jurd did not attend dressed for work. There was conflicting evidence as to Mr Jurd's physical and emotional state at that meeting. Mr Jurd deposed that he was suffering from extreme blood pressure and anxiety, while Mr Moffitt's evidence was that he could not recall that Mr Jurd was shaking or that his face was red when arrived at the meeting. 26 It is Mr Jurd's evidence that he was not dressed for work on 1 December 2000 as he felt he was in no condition to work, deposing that he had been unable to sleep the night before as he had felt upset and agitated as a result of the events of the toolbox meeting. It is Mr Jurd's evidence that prior to the meeting he had attempted to make coffee in the meal room but was shaking too much to complete the task. 27 Mr Moffitt's evidence of the relevant exchange in the meeting is found at pp 9 and 10 of his affidavit (ex 9) in the following terms: " 'Thanks for coming Wayne. I understand an incident occurred yesterday and now we need to hear from you what happened. Can you tell me what happened?' Mr Jurd then said words to the effect of;- 'No, I don't want to discuss it' Mr Hodgson then said to Mr Jurd: 'Why?' Mr Jurd then said: 'I don't want to talk about it. I can feel my blood pressure going up. Can I transfer out of Mount Thorley?' Mr Hodson then said to Mr Jurd; 'Wayne, I am not going to move you just because there is a problem here. If I had to move people just because there was a problem I would be moving people all the time. We need to fix the problem, not move people.' As I recall it, it was when Mr Hodson said this that Mr Jurd started to look upset. Mr Jurd then said: 'If you can't get me out of here, you leave me no choice but to resign.' Mr Hodgson then said to Mr Jurd; 'No, let's talk about it.' Mr Jurd then said; 'No, I'm out of here.' Mr Jurd then stood up and held out his hand to shake Mr Hodgson's hand. Mr Hodgson, Mr Taylor and myself were still sitting. Mr Jurd then started to leave, and when he got to the door, he said words to the effect of; 'Can you find out what my entitlements are' Mr Jurd then left the office." 28 The evidence was that Mr Jurd went home and then, as no-one was home, to a hotel, arriving about 9.00 am and remaining throughout the balance of the day, consuming a substantial quantity of alcohol. 29 Mr Moffitt deposed that he had tried to contact Mr Jurd from around 10.30 am, telephoning his home and asking his daughter to have Mr Jurd phone him at work. Mr Moffitt deposed that at around midday Mr Jurd's daughter called him asking whether Mr Moffitt had heard from her father, as they had been unable to find him. Mr Moffitt's evidence was that some time after 5.00 pm on 1 December 2000 Mr Jurd returned his call. Mr Moffitt's account of this conversation is found at p11 of ex 9 in the following terms: "I said to Mr Jurd words to the effect of;- "Yeah, to make sure you got home allright. Don't do anything silly. Steve Hodgson has asked me to get something in writing from you to fax through to Rob Elder so your payments can go through.' Mr Jurd then said;- 'Yeah, I am still resigning. I can give you something in writing. When do you want it?' I then said: 'Monday will do.' Mr Jurd then said;- 'Allright, I'll be there about 8.00 am Monday to clear my locker out and give you my keys. I'll give it to you then.' I deny that I said in this conversation words to the effect that a verbal resignation was not sufficient and that it had to be in writing. At some point during this conversation Mr Jurd said to me words to the effect of;- 'I've been at the pub all day.'" 30 It was Mr Moffitt's evidence that Mr Jurd telephoned him at around 10.40am on Monday, 4 December regarding the conversation at p12 of ex 9 in the following terms: "I have been to see my doctor, Dr Lee who has certified me with severe anxiety and stress and I am unfit for work between 4 December and 31 December 2000. Do you want me to drop the certificate in to the office?' I then said to Mr Jurd words to the effect;- 'No. I have a Christmas Hamper to deliver to you. I'll pick it up when I bring around your hamper.' During this conversation Mr Jurd said to me words to the effect of;- 'I don't know where being on sick leave puts me.' I then said to Mr Jurd;- 'I agree, I don't know either. I will contact Orica management and someone from management will be in touch with you.' Later that day I delivered the hamper to Mr Jurd at his home and picked up his medical certificate." 31 Mr Moffitt deposed that he subsequently informed Mr Taylor that he had spoken to Mr Jurd who had informed him that he had seen a doctor who had diagnosed severe anxiety and stress and that he would be off work for one month. Mr Moffitt's evidence was that he was on annual leave from 28 December 2000 to 5 February 2001. It follows that Mr Moffitt had no part in the decision taken on 12 January 2001 to terminate Mr Jurd's employment. 32 The evidence of Mr Hodgson was that he interviewed Mr Nemeth on the day after the events of 30 November 2000 and that Mr Nemeth put to him: "It didn't worry me, at no time did I feel threatened" 33 It was Mr Hodgson's evidence that was not satisfied as Mr Nemeth is of large stature and his concern was that another operator of smaller stature could have felt threatened in similar circumstances. He felt obliged to pursue the matter. 34 Mr Hodgson's evidence was that he then arranged an interview with Mr Jurd who put that he did not wish to discuss the matter. Mr Hodgson recounts the response by Mr Jurd at p10 of his affidavit (ex 8) in the following terms: I can't. I can feel my blood pressure going up. Can I have the option of a transfer out of Mount Thorley" 35 Mr Hodgson's evidence was that he declined the request for a transfer to which Mr Hodgson put Mr Jurd responded: "If you can't get me out of here then you leave me no option but to resign." 36 Mr Hodgson then offered to talk about it to Mr Jurd who declined, stating again before leaving: "No, I am out of here … … I want to know what my entitlements are". 37 Mr Hodgson deposed that he did recall that after Mr Jurd left, he had said words to the effect: We will have to get his resignation in writing" as this was his understanding of the EBA arrangements and he did not have time to consider the resignation at the time as it came as a surprise to him. 38 Later that day Mr Hodgson commenced two weeks annual leave. 39 Mr Hodgson further deposed that some time after his return from leave he became aware that Mr Jurd had submitted a medical certificate to cover him until January 2001. Mr Hodgson then arranged a further meeting with Mr Jurd on 2 January 2001. It was Mr Hodgson's evidence that he asked Mr Moffitt to arrange this meeting. This is inconsistent with Mr Moffitt's evidence that he was on annual leave from 28 December 2000 to 5 February 2001. 40 It was Mr Hodgson's evidence that Mr Jurd and Mr Taylor attended the meeting which took place at the Mount Thorley depot and that Mr Jurd was not dressed for work. Mr Hodgson deposed that he stated that he meeting was a continuation of the earlier meeting in relation to the altercation between Mr Jurd and Mr Nemeth, also putting that: " Due to the severity of the incident at the toolbox meeting I am going to issue you with a first and final warning" 41 Mr Hodgson deposed that Mr Jurd responded: "If this is company policy I have to accept it." 42 Mr Hodgson described the subsequent exchange at the meeting of 2 January 2001 at p12 of ex 8 in the following terms: "'Wayne, before I can allow you to come back to work I need to understand if you are prepared to work under our Agreement and as part of this to share the overtime that is needed to be worked. Are you prepared to work under the EBA?' Mr Jurd then said to me:- 'No, I don't think I am' I then said to Mr Jurd:- 'Are you prepared to share the overtime evenly with your peers' Mr Jurd then said to me;- 'No' I then said to Mr Jurd;- 'If you are not prepared to work under these conditions then it is very difficult for me to let you come back to work. Why don't you want to?' Mr Jurd then said to me:- 'I'm sick of the way management are treating people. I'm sick of the unrostered overtime and the EBA. I have my clothes here ready to work, but I don't think I can cope.' Mr Taylor then said words to the effect of:- 'Can the company get some help for Wayne. He is obviously stressed.' I then said to Mr Taylor;- 'I will look into it.' " 43 It was Mr Hodgson's evidence that subsequent reflection on these events led him to the view that Mr Jurd had tendered his resignation on more than one occasion and that he was obliged to accept it. He deposed that Mr Rob Elder, the respondent's Human Resources Manager, was absent on annual leave at the time, so Mr Hodgson awaited his return and after discussion with Mr Elder they reached a position shortly before 11 January 2001 that Mr Jurd's resignation would be accepted. 44 Mr Hodgson deposed that he contacted Mr Jurd on 11 January 2001 by telephone, recounting the relevant part of the conversation at p13 of ex 8 in the following terms: "I said to him words to the effect of:- 'There are two separate issues here Wayne. One is that you do not want to work under our Agreement and the second is a medical issue. While the medical issue is being handled by others, we need to handle the business side. We have decided to finish you up and as part of this we will provide you with a week's pay. We will arrange for your entitlements to be finalised as quickly as possible. In reply, Mr Jurd said to me words to the effect of;- 'You know I'm on a WorkCover certificate. Do what you have to do, you haven't heard the last of this.' " 45 The evidence of Mr Hodgson was that he subsequently informed Mr Taylor of the termination of Mr Jurd's employment. The relevant discussion is set out at p14 of ex 8 in the following terms: " ' We have just parted company with Jurdy' In reply, Mr Taylor said to me words to the effect of:- 'Why?' I then said to Mr Taylor;- 'Wayne does not want to work under the EBA and as such I cannot have him back in the team. There are two separate issues here, a performance issue and a medical issue. A stress claim can go on for a long time and that is being handled by professionals. I still have to deal with the performance issue.' Mr Taylor then said to me:- 'Who made the decision?' I then said to Mr Taylor;- 'Myself and Rob Elder.' I recall that some time after this conversation, I advised Mr Sam Farrugia and Mr Neil Scholes words to the effect of;- 'We had to let Wayne go for work performance issues. He did not want to word under the EBA.' " 46 Mr Hodgson deposed that the Mount Thorley depot was operating at optimum manning levels and that there were no vacancies to which Mr Jurd could be reinstated. He further deposed that the respondent is currently undergoing a re-tendering process in respect to Bulga Coal and has been affected by a recent restructure at the Lemington Mine reducing the work from the Mount Thorley depot. Further, the respondent no longer employs anyone in the general labourer classification and as such there is no position available within the Hunter Valley operations that Mr Jurd is able to perform. 47 The evidence of Mr Hodgson was that Mr J Lewis, the National Workers' Compensation and Rehabilitation Manager for the respondent, is the responsible officer in respect to the stress related disability suffered by Mr Jurd. Attachment C to the affidavit of Mr Taylor (ex 7) is correspondence from Mr Lewis to Mr Taylor setting out in 15 closely typed pages the company policy on stress management. This is a comprehensive policy, however there is no evidence whatsoever that Mr Jurd has been given any consideration in respect to this policy by site management in the Hunter Valley. SUBMISSIONS 48 Mr Metcalfe submitted that the resignation offered by Mr Jurd was in fact a constructive dismissal. 49 Mr Metcalfe relied on Allison v Bega Valley Council [1995] 63 IR 68 to support his argument that the employer had behaved in such a way so as to render the employer's conduct a real and effective initiator of the termination of the contract of employment. 50 Mr Metcalfe further relied on the judgement of His Honour Mr Justice Peterson in Cherry v Allied Express Transport [1997] 73 IR 305 in which there is a consideration of applicable law dealing with special circumstances in which resignations are uttered. The relevant extract relied upon by Mr Metcalfe is at p309 wherein his Honour states: The authorities to which I was taken suggest that where an employee is thought by an employer to have resigned in the course of a heated exchange, but by the use of ambiguous language, the employer who accepts words seemingly of resignation faces the risk of having a contrary finding of fact made. In Minato v Palmer Corporation Ltd (1995) 63 IR 357 Murphy JR extracted and applied the principle adopted in Britain where seemingly unambiguous words of termination are used. The judicial registrar's decision reads (at 361-362): "The central issue here, as far as the respondent is concerned, is whether the applicant had resigned. … The legal. position is set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said: 'In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view Tribunals should not be astute to find otherwise... However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.' Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows: "If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [19831 IRLR 313. These we refer to as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objectively.' 51 Mr Fisher relied upon a decision of a Full Bench of the Australian Industrial Relations Commission in Ngo v Link Printing Pty Ltd [1999] 94 IR 375 to support his argument that effective resignation at the initiative of the employee did occur; and that such resignation could not be unilaterally withdrawn. 52 Mr Fisher further referred me to the discussion by the Full Bench in Ngo of a judgment of Gray J in Birrell v Australian National Airlines Commission [1984] 9 IR 101 found at p378 supra in the following terms: The next point is whether Mr Ngo was entitled to withdraw his resignation. The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in par 8). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (at 110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union of Australia (1993) 49 IR 323 at 336, by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia (1993) 54 IR 134 at 138 and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd (1995) 60 IR 68 at 87-88. In Birrell , Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the head had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the head of the moment, when those words are retracted swiftly (at 110-111). In Mr Ngo's case, assuming in his favour that his resignation was given in the heat of the moment, it was not retracted swiftly. In our view, Mr Ngo was not entitled to withdraw his resignation on the day following the giving of it. 53 Mr Fisher put that even if the law required a resignation given in the heat of the moment to be retracted swiftly for the retraction to be effective, this was not the case here. 54 Mr Fisher also relied upon a decision of a Full Bench of this Commission in Effem Foods Pty Ltd t/as Uncle Ben's of Australia v Urban [1997] 81 IR 341, which he put resolved settled law on re-employment to support his argument that on the circumstances of the matter neither reinstatement nor re-employment are practical alternatives in the event that termination of employment is found to be harsh, unreasonable and unjust. CONSIDERATION 55 The purported resignation of Mr Jurd on 1 December 2000 is not binding upon him given the circumstances in which it was uttered and the subsequent conduct of both the applicant and the employer. The five weeks between withdrawal and attempt to rely upon it caused the resignation to go stale. The purported resignation is further rendered ineffective by Mr Jurd's state of health and the provocative manner in which the employer advised the issue of overtime disparity. 56 Termination of employment is not sustained by the events of the disagreement and altercation between Mr Jurd and Mr Nemeth on 30 November 2000. 57 There was no action on the resignation by the employer for some five weeks. The meeting of 2 January 2001 concerned return to work arrangements, not the giving of effect to the purported resignation. In the event, the company did not act on the resignation until 12 January 2001. 58 I would not interfere with the company's view of this matter that it warranted a warning. However, the provocation and opportunity for dispute created by the manner in which the issue of working unrostered overtime in roughly equal proportion was advised by Mr Moffitt mitigates the behaviour of Mr Nemeth and Mr Jurd. It is entirely proper and appropriate that records be kept by the company and disproportionate working of overtime by individuals be addressed. It is not proper in my view that this be addressed by the convening of a free for all debate with the obvious potential for conflict. There is regrettably no evidence that Mr Moffitt had raised the issue privately with Mr Jurd to seek a rectification of the overtime discrepancy, or that any plan to achieve this had been put. While the concept of self managed teams is considered to have merit, there remains a need and obligation on management to provide responsible leadership. 59 Mr Jurd was suffering from stress as diagnosed by his treating physician, evidenced by certificates tendered in these proceedings in exhibits 1, 4, 5 and 6 which certify Mr Jurd unfit for employment from: · exhibit 1 - 4/12/00 to 31/12/00 2/1/01 to 15/1/01 16/1/01 to 31/1/01 1/2/01 to 1/3/01 · exhibit 4 - 3/4/01 to 3/5/01 · exhibit 5 - 4/5/01 to 4/6/01 · exhibit 6 - Fit to resume duties 5/6/01 60 The behaviour of the applicant at the toolbox meeting of 30 November 2000 and at the meeting with management on 1 December 2000 leads to a conclusion that, whilst not diagnosed until 4 December 2000, Mr Jurd was suffering some disability prior to that date. 61 The purported repudiation of his contract of employment by Mr Jurd on 2 January 2001 is not accepted. I find that Mr Jurd's employment was terminated by the company as it had formed a view that he would not meet his obligations to work unrostered overtime pursuant to an unregistered enterprise agreement. The evidence of Mr Hodgson at pages 11 and 12 of his affidavit (ex 12) set out an acceptable version of these events. 62 The refusal by Mr Jurd to do his share of unrostered overtime in accordance with the enterprise agreement is, in my view, properly characterised by his expression that he was unable to cope, which I find referred to the condition of his health. An outright refusal as purported by the company is such an irrational response by Mr Jurd so as to be the effect of his distress. I note that in the evidence of Mr Hodgson, Mr Taylor, the TWU delegate, requested help for Mr Jurd pursuant to the company's stress at work policy and that none was provided. The failure of the company to apply its own stress management policy to Mr Jurd is harsh and unjust. 63 The division of issues between performance and health pursued by Mr Hodgson is neither valid nor open to him. The issues are inextricably linked. 64 In this context and supported by the medical evidence of stress, the inescapable conclusion is that Mr Jurd was suffering from impaired health due to work related stress. 65 I find the termination of Mr Jurd's employment in those circumstances to be harsh, unreasonable and unjust. 66 I do not accept the proposition advanced by Mr Hodgson that reinstatement is impractical due to uncertain business circumstances and restructure of operations. 67 As an employee of 18½ years service Mr Jurd is entitled in my opinion to be restored to his employment as if he had not been unfairly dismissed. Whatever effect current or future business circumstances may have upon employment or employment classification is a matter to be dealt with in the ordinary course of business, but not one which stands in the path of reinstatement in the circumstances of this matter. 68 Orders for reinstatement, payment of compensation, and continuity of service issue herewith. INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Thursday, 12 July 2001 Matter No IRC 251 of 2001 Notification under section 130 by Transport Workers' Union of Australia, New South Wales Branch of a dispute with Orica Explosives re threatened stoppage Matter No IRC 534 of 2001 Transport Workers' Union of Australia, New South Wales Branch on behalf of B Jurd and Orica Australia Pty Ltd Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDERS 1. Pursuant to s89(1) of the Industrial Relations Act 1996 I order Orica Australia Pty Ltd to reinstate Mr Bernard Wayne Jurd to his former position on terms no less favourable to him than those that would have been applicable had he not been dismissed. 2. Pursuant to s89(3) of the Industrial Relations Act 1996 Orica Australia Pty Ltd is ordered to pay to Mr Bernard Wayne Jurd within 21 days of these orders the amount equal to ordinary time wages he would, but for being dismissed, have received from the time of termination of employment to reinstatement in accordance with these orders. I so order. R W HARRISON Deputy President oo0oo 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.