Industrial Relations Commission of New South Wales CITATION: Issome Ghama v Warraboo Pty Limited t/as De Costi Seafoods Broadway [2005] NSWIRComm 1162 APPLICANT Issome Ghama PARTIES: RESPONDENT Warraboo Pty Limited t/as De Costi Seafoods FILE NUMBER(S): 6064 of 2004 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - constructive dismissal alleged - facts and test for constructive dismissal considered - constructive dismissal not found - unfair dismissal application dismissed LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Allison v Bega Valley Council (1995) NSWIR Comm 175 HEARING DATES: 07/06/2005 DATE OF JUDGMENT: 10/14/2005 APPLICANT Mr I Ghama, unrepresented LEGAL REPRESENTATIVES: RESPONDENT Mr Reid, unrepresented DECISION: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 14 October 2005 Matter No IRC 6064 of 2004 Issome Ghama v Warraboo Pty Ltd t/as De Costi Seafoods Broadway Application by Issome Ghama re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1162 D E C I S I O N 1 This Decision concerns an application for relief for unfair dismissal filed by Issome Ghama ("the Applicant") on 13 October 2004, against Warraboo Pty Limited t/as De Costi Seafoods Broadway ("the Respondent"), pursuant to s 84 of the Industrial Relations Act 1996 ("the Act"). 2 The application was heard at the same time as IRC 6065 of 2005, which was an application filed by another employee (Mr Marcel Misuraca) against the same Respondent. The applications while heard at the same time were dealt with as separate applications. 3 The matter was first listed for Conciliation on 2 November 2004 and was re-listed for Report Back on 16 November 2004 and 2 December 2004. On the last occasion I was advised by the parties that the matter settled. The file was accordingly returned to the Registry. 4 On 11 January 2005 my office received a telephone call from the Applicant advising that as yet his settlement monies had not been paid. A call was placed by my office to the Respondent who confirmed that the settlement monies had not been paid but that the monies would be paid by the end of January 2005. The Respondent was advised that if the monies were not paid by then, the matter would be re-listed. 5 The monies were not paid and so the matter was re-listed for Mention on 2 March 2005. The Respondent did not appear at this mention. The matter was listed for Hearing on 6 July 2005 with directions issued as to the filing of evidence. 6 My office was advised by the Respondent via telephone on 10 March 2005 that the Respondent was not aware that the matter was listed for 2 March 2005 and that this is why he did not attend on that day. In this telephone call, the Respondent confirmed that he had received the letter advising him that the matter was set down for Hearing on 6 July 2005. BACKGROUND 7 The Applicant was employed by the Respondent for seven weeks as a casual and worked about 5 to six days a week for those seven weeks. The period of employment was from 6 August 2005 to 23 or 24 September 2005. The Applicant had worked at the place of business since 20 November 2002, prior to the Respondent taking over the franchise of the business on 6 August 2004. 8 The Respondent alleges that the Applicant was serving out a probation period at the time of his resignation. The Applicant denies any knowledge of a probation period. 9 The Applicant alleges that he was forced to resign from his position due to the conduct of the Respondent towards him and other staff members. 10 Both parties were self represented in the proceedings. THE PARTIES EVIDENCE For the Applicant 11 The Applicant filed a witness statement on 13 April 2005 that included submissions and case law going to "Constructive Dismissal". 12 The witness statement (Exhibit 1) in the proceedings, contained the following evidence: Paragraph 3 That the Respondent (Mr Reid), was not happy with the Applicant's work and that Mr Reid had intended to replace a large proportion of staff, including the Applicant. This made the Applicant feel uncomfortable. The Commission notes that this allegation came from other members of staff who were not named and who did not give evidence. Paragraph 4 a) That on 17 September 2004, Mr Reid had called another employee, Mr Misuraca (the Applicant in IRC 6065 of 2004) names such as " pussy boy" and asked him to " stop acting like a fucking girl " " and to get the hell over your attitude ", when Mr Misuraca had asked to leave for the day and find a replacement for his shift. Paragraph 5 That on 23 September 2005, a new roster had been drawn up that did not contain the names of the Applicant or Mr Misuraca and that as a result the Applicant became concerned that his position was in jeopardy and that Mr Reid intended to dismiss him. Paragraph 6 a) That after closing the store on 23 September 2005, Mr Reid called the Applicant and Mr Misuraca over to the fresh side of the shop and told both employees that they were " fucking idiots" , " you're like a couple of kids" , " you have no initiative" , " you are both fucking stupid" , " you have a mortgage, do you want your jobs" , " I have to cut back hours , someone's gonna go" , " I don't know if I want staff like that working for me" , as well as further name calling similar to that already outlined. Paragraph 6 c) Both the Applicant and Mr Misuraca left the premises at 9.45 pm on 23 September 2005 and were told to come to work the following day " with smiles on our faces" . Paragraph 7 That after leaving the premises that evening, both the Applicant and Mr Misuraca felt that conditions were not bearable any further and as such they each sent a text message to Mr Reid's mobile phone informing him that they did not intend to return to his employment. The message from the Applicant's phone was to the following effect: " After the events of tonight and considering that you verbally abused me, I will not be returning to the store again. As a man with three years experience as a manager in a retail environment, I recommend that in the future you consider the manner in which you discuss matters with your staff. " At 1.30 am the following morning the Applicant received a reply to this message from the Respondent that said, "Who is this". The Applicant did not reply to that message because he was frustrated that his employer did not know who had sent the message considering that only two employees had been verbally abused the evening before. Paragraph 8 That after 23 September 2004, another staff member had informed the Applicant and Mr Misuraca, that Mr Reid had not intended to keep them working there after October 4th long weekend, and that his intention was to dismiss the Applicant. This would have the effect of making it difficult for Mr Misuraca to get to work considering that the two of them lived together and that Mr Ghama drove Mr Misuraca to work. As well, public transport is limited, this would have the effect of forcing Mr Misuraca to resign from his position. 13 During cross examination, the following evidence was given: (a) That the Applicant had not said to the Applicant that he did not want the Applicant working there anymore but that he (the Respondent) had made implications to that effect. (Tr. - page 5, lines 16-20) (b) That the Respondent had discussed with the Applicant becoming full-time. (Tr.- page 5, lines 25-28) (c) That the Applicant had been late for work 22 days out of the 34 days that he had worked. (Tr - page 6, lines 19-20) (d) That the Applicant resigned by sending a text message to the Respondent. (Tr.- page 8, lines 1-19) (e) That the fact that the Respondent got cranky with the Applicant did not mean he was going to terminate the Applicant. (Tr.- page 8, lines 38 to 45) (f) That at no stage was the employee told that he was going to be terminated. (Tr.- page 9, lines 40-47) (g) That the Applicant should not have been looking at the roster because it was in a folder of the Respondent's desk and was confidential. (Tr.- page 9, lines 5-35) (h) That the roster that the Applicant had seen (that did not include his name), was not a roster that was highly likely to be implemented at the store. (Tr. - page 10, lines 12-21) For the Respondent 14 No evidence was filed on behalf of the Respondent. The Respondent advised the Commission from the Bar table that he had been busy with the business (and with his father who had been in hospital for the past 20 weeks) which is why some things, like filing his evidence in this case had to go to one side. (Tr.– page 2, lines 3-16) SUBMISSIONS For the Applicant 15 The Applicant made the submission that his unfair dismissal was a Constructive Dismissal because the conduct of the Respondent (including verbal abuse), made the Applicant feel unsafe in the work environment and added to his decision to leave that employment. (Tr. - page 12, lines 1-19) For the Respondent 16 The Respondent denied that there was a Constructive Dismissal by saying that since the Applicant was a casual with only seven weeks service, a Constructive Dismissal is virtually impossible. (Tr. - page 12, lines 34-49) The Respondent went to submit that with respect to the allegations of physical and verbal abuse, there had been an investigation by Work-cover, and any allegations against him were totally dismissed. (Tr. - page 12, lines 51-54) Applicant in Reply 17 The Applicant made submissions in reply that the Respondent did swear and scream at him, called people names, caused embarrassment, caused frustration and caused people to be upset. At the end of the day that is verbal abuse and that was his reason for choosing to no longer be under the Respondent's employment. (Tr.- page 14, lines 21-27) THE STATUTORY REQUIREMENTS AND CASE LAW TO BE CONSIDERED 18 The statutory requirements that need to be considered are found in Chapter 2 Part 6 of the Act. 19 There was a suggestion that the Applicant was serving a period of probation at the time of the alleged Constructive Dismissal. This was denied by the Applicant and not pressed by the Respondent. In any event, it is not a matter that needs to be determined in these proceedings. 20 In this case, as a Constructive Dismissal is alleged by the Applicant. The Commission must consider that question, and can do so pursuant to s. 88 (f) of the Act. 21 The leading case on Constructive Dismissal principles is the Full Bench decision in Allison -v- Bega Valley Council [1995] NSWIRComm 175. In that decision, certain principles relating to Constructive Dismissal are set out but it is important to note that the Full Bench states as follows: "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." The Full Bench continues: " 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 a 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 " – (page 5 of the Commission's website version) (emphasis added) CONSIDERATION Issue – Was there a Constructive Dismissal? 22 The evidence is that the Applicant resigned by way of sending a text message to the Respondent, late on the evening of 23 September 2004 or in the early hours of 24 September 2004 following the events of 23 September 2004. 23 The question is: Was the Applicant put in a position where he had no choice but to resign due to the conduct of the Respondent? 24 The evidence is that the Applicant resigned due to the events of the evening of 23 September 2004, where the Respondent exchanged "verbal abuse" at the Applicant for some half an hour. 25 The evidence is also that the Respondent said to the Applicant at the end of the meeting of 23 September 2004, words to the effect that the Applicant should come in for work tomorrow with a smile on his face. (Ex. 1- paragraph 6 c). This evidence is inconsistent with there being either a threat of dismissal made by the Respondent to the Applicant, or pressure exerted by the Respondent on the Applicant to resign. 26 Further, the Applicant's own evidence that: "…the Respondent did not intend to keep us working there after the October 4th long weekend and that his intention was to dismiss me, thus making it difficult for Mr Misuraca to get to work considering that we live together …….forcing him to resign from his position", is fraught with difficulties. (Ex 1-par 8) Firstly, it is hearsay evidence and not only was the person who told this to the Applicant not called to give evidence, they are not named in Exhibit 1. They are identified as "a different staff member" (Ex 1-par 8) Given the source of the statement is not even identified, let alone that the person was not called to give evidence, the Commission has difficulty in placing weight on this evidence. Further, the evidence appears to be contradictory. The evidence is that the Applicant was told that after the October 4th long weekend, the Respondent did not intend to keep the two employees (the Applicant and Mr Misuraca) working there. That is, neither would be working for the Respondent after that weekend. But then, the other evidence from the Applicant is that it was that the Respondent's intention to dismiss the Applicant leaving Mr Misuraca without transport to get to work and so Mr Misuraca would have to resign. The evidence appears to be contradictory and as such should not be given weight by this Commission. 27 Given the above, there is not any reliable evidence of a threat of dismissal being made by the Respondent to the Applicant. 28 Nor is there any evidence that the resignation was given as a result of pressure placed upon the Applicant by the Respondent. 29 What the evidence does show is that the Respondent said that he wanted to see the Applicant and Mr Misuraca at work the following day (24 September 2004) with smiles on their faces. This evidence, as well, appears in the Applicant's own witness statement at paragraph 6 c). This evidence of the Respondent's (Mr Reid's) attitude that he would see the Applicant at work, is inconsistent with the claim that the Respondent evinced an intention to bring the contract of employment to an end. CONCLUSION 30 While the uncontested evidence contained in the Applicant's witness statement shows that the work environment could well have been an unpleasant one, I am not satisfied that the test at law for Constructive Dismissal has been made out. 31 Accordingly I dismiss the application. 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.