Industrial Relations Commission of New South Wales CITATION : Tania Lever and Aboriginal Children's Services Ltd [2002] NSWIRComm 347 APPLICANT: PARTIES : Ms T Lever RESPONDENT: Aboriginal Children's Services Ltd FILE NUMBER: 2934 of 2002 CORAM: Sams DP Termination of employment - unfair dismissal - applicant resigned - principles of constructive dismissal - whether termination "harsh, unreasonable or unjust" - reinstatement sought - appropriate relief. CATCHWORDS : Held, applicant's authority and status undermined - applicant forced to resign - employer the effective initiator of the termination of employment - conflict of interest - resignation amounted to constructive dismissal - dismissal "harsh, unreasonable and unjust" - reinstatement impractical - compensation orderd. LEGISLATION CITED : Industrial Relations Act 1996 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Hollingsworth v Commissioner of Police (No.2) (1999) 88 IR 282 Bankstown City Council v Paris (1999) 93 IR 209 Outboard World v Muir (1993) 51 IR 167 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273). Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 Ward v Mobile Innovations 2002 IRComm 287 Allison v Bega Valley Council (1995) 63 IR 68 CASES CITED : Spanish Club Ltd v Bounouar (1999) 94 IR 173 Social and Community Services Employees (State) Award 329 IG 833 Mohazab v Dick Smith Electronics (1995) 62 IR 205 Minato v Palmer Corporation Ltd (1995) 63 IR 357 Grout v Gunnedah Shire Council (1994) 125 ALR 355 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 St Vincents Hospital Sydney Limited v Harris (unreported) Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998 Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999 Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000 Police Service of New South Wales v Batton (2000) 98 IR 154 HEARING DATES: 10/29/2002 DATE OF JUDGMENT: 12/17/2002 APPLICANT: Mr D Sloan (Solicitor) LEGAL REPRESENTATIVES: RESPONDENT: Mr F Guivarra Victorian Aboriginal Community Services Association Limited JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 17 December 2002 Matter No IRC02/2934 Tania Lever and Aboriginal Children's Services Ltd Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION NSWIRComm 347 1 This is an application, pursuant to s 84 of the Industrial Relations Act 1996 ("the Act"), filed by Ms Tania Lever ("the applicant") seeking relief in respect to her alleged unfair dismissal by the Aboriginal Children's Services Ltd ("the respondent") on 8 May 2002. 2 Conciliation conferences were conducted on 19 June 2002. Ms L Finestone (Solicitor) appeared for the applicant and Mr F Guivarra (Agent) from the Victorian Aboriginal Community Services Association Ltd appeared for the respondent. During the conferences the respondent offered to reinstate the applicant. However, the applicant rejected this offer. Accordingly, I determined, pursuant to s 87 of the Act, that the matter could not be settled. A date for arbitration was set and directions issued in preparation for the hearing. 3 The applicant claimed she was forced to resign when her authority as manager was undermined by the respondent's Board of Directors. The issue of whether the applicant was constructively dismissed is, therefore, the first question which must be successfully established before the Commission can determine whether such dismissal was "harsh, unreasonable or unjust" within the meaning of Pt 6 ch 2 of the Act. 4 I shall shortly return to these questions and the principles applicable thereto. First however, I will detail the factual background to the applicant's termination of employment as revealed by the evidence adduced in the proceedings. Background 5 Aboriginal Children's Services Ltd is an organisation funded by the Aboriginal and Torres Strait Islanders Commission (ATSIC) and the New South Wales Department of Community Services (DOCS). The service has an administrative office in Redfern and regional offices at St. Marys, Wagga Wagga and Cowra. The number of staff in each of the regional offices varies from between three and four, being an Office Manager, Caseworker, Secretary/Receptionist and Family Support Worker. 6 The service provides foster care placements (numbering 300-400 children) for Aboriginal children up to eighteen years of age. The service is administered by a Board of Directors of whom Ms Beverley Coe, a witness in these proceedings, is the Chairperson. 7 At the time of her resignation the applicant was the Principal Officer of the Service having commenced employment as a Field Officer in 1988 at the Redfern office. As the Principal Officer she was responsible for overseeing and reporting on all the offices of the Service and for managing their case work in consultation with the local regional manager. 8 Among the applicant's responsibilities was the approval and signing off on wages and travel allowances for employees. Employees were paid a travel allowance of $150.00 per night to cover expenses such as accommodation and meals. Receipts were not, and never had been, required. However, incidental expenses requiring reimbursement did require receipts. Subject to two weeks notice, employees were entitled to one flex day a month as consideration of travel time. From up to December 2001, no concern or query had been raised about the travel allowances paid to staff. 9 The applicant was not employed under a contract of employment and was employed under the terms of the Social and Community Services Employees (State) Award (329 IG 833) ("the Award"). Throughout her period of employment, the applicant's performance was not subject to any reviews. From time to time she took advice from Mrs Louise Coe, the Service's then Finance Officer. 10 In about December 2000, the applicant commenced preparation of an up to date policy and procedures manual for the Service. She did this by reference to earlier decisions made by the Board. The applicant obtained approval from the Board to employ her sister, Yvette Farrell as Administrative Assistant. Ms Farrell commenced employment on 6 December 2000. Travel Allowance Dispute 11 In December 2001, two employees, Ms Paula Weldon (the Chairperson's niece) and Mr Barry Smith (the de facto partner of the Chairperson) requested and were paid five nights travel allowance to conduct foster care reviews on the North Coast commencing on Sunday 9 December. 12 The employees returned to Sydney late on Wednesday, 12 December and were therefore entitled to four nights allowance. Both employees took the next two days off on pay. The applicant was under the impression that the employees had returned to Sydney on Thursday afternoon. The respondent maintained that the applicant instructed the employees to bring two children home immediately and they returned around midnight on 12 December. However, the applicant's evidence was that she instructed the employees to complete all visits. Contrary to the respondent's evidence, one of the foster children told her that they got back at 8.30 or 9.00pm. The applicant took the matter no further until February 2002 when Ms Weldon requested a flex day for the December trip. The applicant refused her request citing the two days already taken in December. 13 In March 2002, the applicant - without approval from the Board - introduced a new policy of requiring presentation of receipts for all travel claims. The applicant said all employees had received a memo advising of the new arrangements. This proposal was to be submitted to the March Board meeting for approval. 14 Around this time, Ms Weldon and Mr Smith again requested five nights travel allowance to conduct reviews on the North Coast. In view of the most recent experience, the applicant approved only four nights travel allowance and required receipts to be presented. Ms Weldon and Mr Smith both took exception and complained that they were being victimised in that other employees were not required to submit receipts. 15 The applicant gave evidence that on other occasions she had declined to approve travel allowances based on her estimate of the time necessary for the trips. No one had complained about these refusals. Board Meeting 15 March 2002 16 Notwithstanding that the applicant deposed that it was a long standing Board policy that staff were to direct any matter of concern in writing through the Principal Officer and not directly to the Board, the employees' letter of complaint was discussed at a teleconference Board meeting on 15 March 2002. The applicant was unaware of the details of the letter of complaint. 17 It was also policy, she said, for the Principal Officer and Board members to absent themselves from parts of the Board meeting in which issues concerning members of their family were discussed. 18 The applicant was asked to leave the meeting when the travel allowance issue was raised. Ms Beverly Coe gave evidence that a quorum was present (seven directors). However, as her partner was a complainant, she did not participate in the discussion or the vote. Ms Coe deposed that five members of the Board, who did not have a family connection to Ms Weldon, participated in the discussion and the vote. Ms Coe said that notwithstanding a lack of a quorum, a decision had been made. 19 Later that day, the applicant called Ms Coe to find out what had been decided by the Board. She was told to ring Danny Jeffries, a director from Cowra. Mr Jeffries informed her that the Board had resolved to pay the travel allowance to Ms Weldon and Mr Smith, which the applicant had not approved. Mr Jeffries also informed the applicant her travel allowance policy proposal would be discussed at a Board meeting on 27 and 28 March 2002 at Mt. Druitt. Board Meeting 27 - 28 March 2002 20 Seven of the twelve directors who attended this meeting were related to Ms Weldon, including the Chairperson Ms Beverly Coe (aunt). The applicant prepared her usual report to the Board meeting in which she requested clarification of the flexitime taken for travel time. The applicant also requested special leave each Friday during April 2002 "due to her intense work load." The Board agreed she was working in excess of Award hours and decided that the applicant should take two weeks annual leave instead. 21 The applicant attended the first part of the meeting for about an hour. There was then a discussion about the continuing employment of her sister, Ms Farrell. The applicant absented herself from the meeting. The applicant claimed the Chairperson regularly came out of the meeting, and the applicant asked if she could rejoin the meeting. Ms Coe refused and the applicant was not present in the meeting for the rest of the day. 22 The Board rejected the applicant's proposals for travel allowances and decided that employees would not be required to reimburse unspent travel allowances. Ms Weldon and Mr Smith's flex leave for 14 December 2001 was also approved. Ms Coe gave evidence that she, Yvonne and Anne Weldon (sister and mother of Ms Weldon) did not participate in this discussion. 23 Day two of the Board Meeting discussed financial matters. Mrs Louise Coe and the applicant were present. Yvonne Weldon queried the applicant about reimbursement for directors' lunches and told her she could not sign off on her own travel allowance claims. The applicant claimed Anne Weldon verbally attacked her over her report describing it as "unprofessional and slanderous". The applicant believed the directors were looking to find any faults in her report. 24 When the meeting adjourned for lunch, Yvonne Weldon said to the applicant "we've got to get rid of dead wood." The applicant took this as meaning she was soon to be terminated. The applicant deposed that she was extremely worried about what happened at the meeting. The Board had treated her completely differently to the past. She had been excluded from the majority of the meeting without any explanation. The applicant consulted her medical practitioner and was placed on stress leave from 2 April to 8 May. Her workers' compensation claim was later approved. 25 The Board had resolved to make Ms Farrell redundant in view of decreased funding from ATSIC. Ms Coe deposed that the decision had been taken with some reluctance. The applicant said she was "extremely surprised" when her sister was made redundant on 7 May. She deposed that while she was aware of reduced ATSIC funding, there were sufficient funds to keep all staff employed. As the Principal Officer, she had not been consulted about any proposal to make staff redundant. 26 The applicant believed that her treatment by the Board and the redundancy of her sister were part of a decision by the Board to dismiss her. However, she decided to resign. Her letter of resignation was expressed in the following terms: Dear Board Members, It is with deep regret that I have no choice but to resign as the Principal Officer of the Aboriginal Children's Service. This has come about after the treatment of the Board at the last Board of Directors meeting. At that meeting I was humiliated a number of times in front of a room full of people and a comment was made by one Director that they were going to get rid of dead wood. I was also disappointed with the way the Board did not treat my position fairly when dealing with the issue of travel allowance payable to family members. I have worked long hours and worked extremely hard to fulfil the requirements of the Principal Officers position but because of the lack of respect, the screaming abuse, the lack of natural fairness, my confidence in myself and my ability to do my job has been damaged. I have worked for Aboriginal Children's Service for over 13 years and have always been committed to the children of this service. I had hoped that with counselling I would be able to return to work however, I have now learnt that my sister has, on short notice, been made redundant from the organisation. I see this as a personal attack on me and my family when I know that Yvette has performed her duties. I cannot see how I can continue working with Aboriginal Children's Service when there is discrimination by the Directors against my family and this action has hurt myself and my family deeply and as I could not bear to see any further stress and harm come to them I have no choice but to resign. I would like to give two (2) weeks notice from today's date being 8th May 2002, my employment ceasing with the service on the 24th May 2002. It would be greatly appreciated if all my entitlements could be paid into my bank account prior to the 24th May 2002. Other Evidence 27 Mrs Louise Coe was summonsed to give evidence. She was the respondent's solicitor in charge of child protection, prior to which she was the respondent's Finance Officer for five and a half years. 28 Mrs Coe's evidence was that the applicant would normally attend all Board meetings and up to about March 2002, she seemed to enjoy a good working relationship with the Board. 29 Mrs Coe attended the 27 and 28 March Board meeting. She deposed that the applicant was excluded from most of the meeting. However, when the applicant did attend the meeting, some of the board members "appeared hostile" to her. There had been criticism over $10 not spent on Board lunches and a comment that her Principal Officer's report was "slanderous and disgusting". 30 Mr Guivarra sought to call further evidence from Paula Weldon through an affidavit sworn on the morning of the hearing and oral evidence from Mrs Val Weldon (grandmother of Paula Weldon). 31 Mr Sloan opposed the admission of new evidence. He submitted that such evidence had not been filed in accordance with the Commission's directions. 32 The Commission ruled that the respondent had not provided a sufficient basis for the admission of new evidence, particularly where directions for the filing and service of affidavit evidence had been made months earlier. See Spanish Club Ltd v Bounouar (1999) 94 IR 173. Further evidence was refused admission. SUBMISSIONS For the Applicant 33 In reviewing the evidence, Mr Sloan submitted that the applicant was forced to resign after a fourteen year history of employment in which she had performed her tasks well. There was no evidence of her performance or conduct ever being called into question. 34 Mr Sloan said the resignation arose following the applicant's legitimate questioning of travel allowances claimed by two employees. It was relevant that both employees were related to members of the Board of Directors. The two employees complained of being victimised by the applicant and took their complaint to the Board. Mr Sloan submitted that not only did the Board reject the applicant's revised policy for greater accountability, it undermined her express authority and status by reinstating payments she had refused to approve. 35 Mr Sloan said the Board's decision was made without the applicant being able to respond to the complaint or explain her proposals. Contrary to past practice she was excluded from the meetings. 36 Mr Sloan observed that in the meeting of the 28 March, the applicant was unfairly grilled about financial matters. Mrs Coe's evidence was instructive in that certain Board members appeared hostile to the applicant in the meeting. 37 To make matters worse, the applicant was pointedly told in the lunch adjournment that the Board needed to "get rid of dead wood". While the Board recognised the applicant was working long hours, it refused to give her time off; insisting instead that she go on annual leave. 38 Mr Sloan submitted that the applicant was forced onto stress leave. During this time her sister was made redundant. He put that there was a question mark over whether the redundancy was bona fide. In any event, the applicant was not even consulted about the need for any redundancies. The applicant then submitted her forced resignation. 39 In these circumstances, Mr Sloan submitted that the respondent initiated the termination of employment. It was a dismissal which was "harsh, unreasonable and unjust." (See Mohazab v Dick Smith Electronics (1995) 62 IR 205, Minato v Palmer Corporation Ltd (1995) 63 IR 357 and Grout v Gunnedah Shire Council (1994) 125 ALR 355) 40 Mr Sloan concluded by submitting that the applicant seeks reinstatement with no loss of continuity. (See Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186) The applicant genuinely wished to work together with the Board. She remained unemployed and was living on family allowances. For the respondent 41 Mr Guivarra, put that the Board did not embark on a course, which forced the applicant to resign. The applicant was chastised by members of the Board for introducing a policy without Board approval. The fact was the applicant's sister had been genuinely redundant. 42 Mr Guivarra submitted that reinstatement was impractical as someone else was acting as the Principal Officer pending a review of the Service's operations. CONSIDERATION Principles of Constructive Dismissal 43 There is no doubt that the applicant resigned her employment by letter dated 8 May 2002 (See para 25). Equally, I think, there can be no doubt, from the obvious terms of her resignation letter, that she believed that she had been forced to resign. She cited her treatment by the Board and the redundancy of her sister as being reasons why she was forced to resign. 44 So, the question then arises, did the applicant have a legitimate basis for a claim of forced resignation? This question can be answered by an examination of the authorities of the Commission, which have considered whether a resignation might constitute a constructive dismissal. 45 The frequently cited authority is Allison v Bega Valley Council (1995) 63 IR 68 where a Full Bench of the Commission said at pp 72 and 73: It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment. Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue. In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensure and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer. Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed. 46 By its very nature a forced resignation will invariably be found to be a termination of employment at the initiative of the employer; thus meeting the test of what constitutes a constructive dismissal. See also Clark v Pittwater RSL Club Ltd (1998) 84 IR 309, Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296, St Vincents Hospital Sydney Limited v Harris (unreported) Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998, Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999, Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000 and Police Service of New South Wales v Batton (2000) 98 IR 154. 47 To these authorities may be added the weight of a recent Full Bench decision reaffirming the principles discussed in Allison. In Ward v Mobile Innovations [2002] NSWIRComm 287 the Full Bench made these observations at para 4: The Commission has authoritatively addressed the question of constructive dismissal in Allison v Bega Valley Council (1995) 63 IR 68 (although the Full Bench in Allison expressed the need for caution in the use of that expression). Hence, the principles for determining whether a termination constitutes a "constructive dismissal" are now well settled, in our opinion, and do not require revisiting in this appeal. In particular, Allison makes clear (at 72) that the proper approach in this context involves an identification of whether the employer was the true initiator of the termination of employment. Each such inquiry must relate to the facts and circumstances of a particular case. This matters (sic) represents no exception in this respect. And at para [6] said: It may be that the conduct of an employer is so onerous or unreasonable prior to a termination that a termination will be found to lay in the hands of an employer, even where the employer has not expressly required an employee to offer resignation or threatened dismissal in lieu of such an offer. However, this notion merely accords with that which has already been formulated in Allison . 48 I have also found the comment of Macken J in Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 to be particularly apposite in this case: Just as it is a fundamental requirement for an employment contract to be entered into by the genuine consent of both parties to the contract - a consent untainted by any hint of pressure or threat - so too, it must be terminated by a resignation equally untainted by any such threat. Where a contract is terminated otherwise, it amounts to constructive dismissal. 49 I turn now to the evidence presented in this case by observing that the relevant evidence is largely undisputed. The Commission finds as follows: a) The applicant was not given an opportunity by the Board to defend or explain her decision in refusing Ms Weldon and Mr Smith their travel allowances. b) The applicant's authority and status were undermined by the Board's decision to overturn her decision. c) The Board denied the applicant any opportunity to respond to allegations that she had "victimised" Ms Weldon and Mr Smith. d) The Board denied the applicant any opportunity to speak to, and defend her proposals for making the travel allowance policy more accountable. To my mind, her proposals were perfectly reasonable and based on sound and practical financial accounting practice. e) Certain members of the Board raised trivial issues in order to find some basis for criticising the applicant. Anne Weldon seemingly led the attack. I believe that these Board members were motivated by nothing more than an opportunity to "square off" for what the applicant had supposedly done to their relative, Ms Weldon. I note particularly the evidence of Mrs Coe that certain of the Board members were hostile to the applicant. f) As Principal Officer, the applicant was not consulted about the need for the redundancy of staff members. g) Moreover, in my view, the redundancy of the applicant's sister was a vindictive and baseless decision in retaliation for some of the Board members' adverse feelings about the applicant. 50 Generally however, what I found most disturbing in this case was the decision making process by the Board, in which family members of employees, who stood to gain financially, participated in the Board's decisions. Seven of the twelve Board members were related to Ms Weldon. Only three of the seven chose to absent themselves from the discussion and the decision to pay Ms Weldon additional allowances. At the risk of stating the obvious, if it were appropriate for some family members to distance themselves from the decision, it would surely have been appropriate for the others to do likewise. 51 It was also of concern that family members, including those who it was said did not participate in the discussion, remained in the meeting. It cannot honestly be claimed that they uttered not a single word or that their mere presence did not influence the outcome. 52 The Chairperson, Ms Coe, gave evidence that "the relationship between Board members and other members of staff is in my opinion, immaterial." I disagree entirely. In my opinion, there was a hopeless conflict of interest. 53 The irresistible and only conclusion one can draw from the aforementioned findings is that the applicant was forced to resign. The applicant has established that she was constructively dismissed. I find accordingly. Was the dismissal "harsh, unreasonable or unjust"? 54 It is, of course, incumbent on the applicant to discharge the onus of satisfying the Commission that her dismissal was "harsh, unreasonable or unjust" (see Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273). 55 It is now well settled industrial law that each of the words "harsh, unreasonable and unjust" have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This notion arises from the oft quoted authority in Byrne & Anor v Australian Airlines (1995) 61 IR 32 where the expression "harsh, unreasonable or unjust" was considered in the context of an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 56 This notion was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power. In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made. A more recent authority reaffirming the distinction between the words and requiring a positive and specific finding is found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 57 It is trite to observe that no two cases will ever be exactly alike. Hence, the Commission is required to examine the facts and circumstances of each case and decide whether one, or more of the words, "harsh, unreasonable or unjust" can be applied to a particular dismissal. 58 In my opinion, the conduct of the respondent, which gave rise to the applicant's resignation, can only be described as deplorable and in the result, grossly unfair to the applicant. I note the refreshing honesty of Mr Guivarra when in response to my query concerning the Board not allowing the applicant to attend the meeting in which she was being criticised, he said "I would concede there were mistakes made - grave mistakes made." 59 It follows that I am comfortably satisfied that the applicant's constructive dismissal on 8 May 2002 was "harsh, unreasonable and unjust" within the meaning of Pt 6 ch 2 of the Act. Relief 60 It needs to be emphasised that the statutory emphasis and policy intent of the Act is directed towards the reinstatement of an unfairly dismissed employee. It is only when the Commission makes a finding of the impracticality of reinstatement that consideration may be given to awarding compensation pursuant to s 89(5) of the Act. 61 Mere discomfort for the employer is not sufficient to establish the impracticability of reinstatement. See Perkins v Grace Worldwide (Aust) Pty Ltd and Hollingsworth v Commissioner of Police (No.2) 88 IR 282. 62 I have given earnest consideration to the prospects of re-establishing the employment relationship between the applicant and the Board. 63 The Commission, of course, takes into account the views of the parties, most particularly where a dismissed employee seeks to be reinstated. Such a request is not usually made in unfair dismissal cases. The applicant is to be commended for wanting to put the past behind her and resume her employment. 64 However, at the time of the hearing, the Board (save for one member who had passed away) consisted of those persons who had so appallingly treated the applicant; some of whom in Mrs Coe's words were "hostile" to her. It seems to me that the relationship between the Board and the applicant has irretrievably broken down. 65 In these circumstances, I cannot be satisfied of the practicality of reinstatement. Nor can I be satisfied that it would be in the applicant's best interests to return to such a workplace environment - although I hope the respondent has learnt some valuable lessons from this experience. 66 Accordingly, I propose to order compensatory relief to the applicant. In doing so, I have had regard for the applicant's skills and experience and her considerable period of service with the respondent. ORDERS 67 Pursuant to s 89(5) and (6) of the Industrial Relations Act 1996, the Commission orders that: 1) The respondent, Aboriginal Children's Services Ltd shall pay to the applicant, Tania Lever, an amount of twenty weeks' wages as compensation for her unfair dismissal on 8 May 2002. 2) The amount ordered in (1) shall be paid within twenty-eight days of today. 3) These proceedings are concluded. Peter Sams Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.