Ljupce Talevski v Christopher Kelly [2008] NSWIRComm 1122

Industrial Relations Commission of New South Wales

CITATION: Ljupce Talevski v Christopher Kelly [2008] NSWIRComm 1122

APPLICANT Ljupce Talevski PARTIES: RESPONDENT Christopher Kelly

FILE NUMBER(S): 847 of 2008

CORAM: Tabbaa C

CATCHWORDS: Constructive dismissal or resignation; alleged failure to disclose all relevant information to assist with medical diagnosis; abusive and disrespectful behaviour to the Employer; monetary compensation.

LEGISLATION CITED: Industrial Relations Act 1996

HCF Aust. Pty Ltd v Anastasios [(2003) 127 I CASES CITED: R 475] Federated Municipal & Shire Council Employee's Union of Australia, NSW Division v Sydney City Council [1987 23IR 454]

HEARING DATES: 05/09/08

DATE OF JUDGMENT: 17 November 2008

Mr A Morris for the Applicant LEGAL REPRESENTATIVES: Mr D Alexander for the Respondent

DECISION:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Tabbaa C 17 November 2008

Matter No. IRC 847 of 2008 LJUPCE TALEVSKI AND CHRISTOPHER KELLY Application by Ljupce Talevski re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ........................................................................................................................................... D E C I S I O N

1 Mr Ljupce Talevski, the Applicant, filed a claim pursuant to s 84 of the Industrial Relations Act 1996 in which he contended that he commenced employment with Mr Christopher Kelly of Orthoplant Dental Laboratories, on 4 July 2005 as a casual Dental Technician under a contract of employment. At various times during his employment, he worked either full-time or part-time hours and, as at the date of the cessation of the employment relationship, he was in a casual capacity pursuant to the terms and conditions of the Dental Technicians (State) Award 2006. 2 Briefly, in late 2007, the Applicant noticed a gradual increase in itchiness on his left hand which developed into a rash. He consulted a skin specialist and was provided with medical certificates for periods of sick leave commencing 25 January 2008. Later, the Applicant produced a medical certificate certifying that he was allergic to acrylates and, to a lesser extent, cobalt gold sodium thiosulfate. The GIO accepted provisional liability for each of the periods of absence on sick leave in relation to the subject rash. 3 In April 2008, Mr Christopher Kelly, the Principal of the Respondent firm, called the Applicant and urged him to discuss with his treating doctor the possibility that his partial chrome denture may be causing/exasperating/contributing to the rash not healing. Mr Kelly was frustrated with the fact that the treating doctor was refusing to discuss the Applicant's medical condition with him. The Applicant baulked at what he perceived to be pressure to ignore his doctor's advice and, in the course of that conversation, advised Mr Kelly that he was "a pain in the butt". Mr Kelly pointed out that the Applicant had an "attitude" which, if maintained, may result in the longest holiday the Applicant has ever had. The Respondent wrote to the Applicant seeking an apology for his rudeness and clarification as to whether the Applicant wished to remain in the employment of the Respondent. A few days' later, the Applicant offered a verbal and written apology for his rudeness but argued against other matters included in the Respondent's correspondence. The Applicant received further correspondence from Mr Kelly in the same terms as the previous letter with the added ultimatum that unless the Applicant replied to it demonstrating a full act of contrition, it would be presumed that he did not wish to return to work for the Respondent. That ultimatum was repeated to the Applicant during a subsequent conversation with Mr Kelly. The Respondent wrote to the Applicant once again expressing regret at the failure of the Applicant to respond adequately to the ultimatum. Mr Kelly interpreted that to mean that the Applicant had chosen to resign his employment. The Applicant was asked to return any property belonging to the Respondent prior to the release of any termination monies. 4 The Applicant contended that he had been constructively dismissed by the Respondent. The Respondent contended that no dismissal had occurred. 5 The Commission is required to determine, firstly, whether there had been a dismissal and, if determined in the affirmative, whether that dismissal was harsh, unreasonable or unjust.