Industrial Relations Commission of New South Wales CITATION: Ravet v Sydney Opera House [2006] NSWIRComm 163 PARTIES: Rory Meyer Ravet Sydney Opera House FILE NUMBER(S): 5268 of 2005 CORAM: Grayson DP Unfair dismissal - Doctrine of constructive dismissal - Resignation letter tendered by applicant - Repeated attempts by employer to dissuade applicant fromregaining CATCHWORDS: Held - No basis for conclusion that employer was real and effective terminator of contract of employment - Application dismissed CASES CITED: Allison v Bega Valley Council (1995) 63 IR 72 HEARING DATES: 28/10/05, 08/05/06 DATE OF JUDGMENT: 05/19/2006 Applicant in person LEGAL REPRESENTATIVES: Ms C O'Brien, Human Resources Manager JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Grayson, DP 19 May 2006 Matter No IRC 5268 of 2005 Rory Meyer RAVET and Sydney Opera House Application by Rory Meyer Ravet re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 163 1 The applicant, Rory Ravet, was employed by the respondent, Sydney Opera House, as a casual staging mechanist. The employment which commenced on 10 December 2004, ended on 25 September 2005 by reason of the applicant's resignation. 2 It is alleged by the applicant that his resignation and the circumstances giving rise to it constitute an unfair dismissal involving the doctrine of constructive dismissal. 3 It is the respondent's position that the applicant could not on any objective analysis, be regarded as having been placed in a position where there was no alternative but to resign. To the contrary, he was urged virtually from the time the resignation was tendered, to withdraw it and he was invited to return to the workplace with an assurance that his continuing employment was not in any way at risk. The respondent renewed its offer of employment when the matter was before the Commission for conciliation and again at hearing. 4 The legal principles involving the constructive dismissal doctrine may be conveniently summarised by reference to the decision of the Full Commission in Allison v Bega Valley Council (1995) 63 IR 68 at 72 as follows: 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? 5 Evidence in the present case was taken in the form of affidavits or written statements from the following witnesses none of whom were required for cross-examination: · Rory RAVET, the applicant · Gene RAVET, the applicant's brother · Nicole RENWICK, partner of the applicant's brother · Mark O'SULLIVAN, Acting Human Resources Manager · Julie CRITCHLEY, Payroll Advisor · Adam CROME, Supervising stage mechanist · Nicolas ANGELICAS, Technical Operations Manager, Staging · Warren SMITH, Manager, Site Management · Christopher KELLY, Business Operations Manager, Staging 6 At the heart of the matter is an incident described in occupational health and safety terms as a near-miss incident which occurred on 23 September 2005 and involved an elevating work platform. 7 Upon hearing a scream from the platform operator, the applicant observed the platform rolling towards the raised edge of the Opera Theatre loading dock where it would have toppled and fallen into the scenery dock one metre below. 8 The applicant immediately moved to prevent the accident by grabbing hold of the rolling platform and with the assistance of others, by bringing the platform to a halt and it would seem, back to its upright position. The applicant said he was shaken by the experience which he regarded as potentially life threatening. 9 What then followed was an inquiry into the incident initially conducted by the supervisor Adam Crome in the course of which it was alleged by another worker that the applicant had caused the elevating work platform to begin rolling by pushing the platform. Although the allegation was later withdrawn, it was nonetheless put to the applicant by Adam Crome in a private conversation between the two of them soon after the incident. 10 The applicant vehemently denied the allegation and felt, I might say with some justification, offended by it given that he saw himself as having acted in a timely and proper way to prevent a serious accident rather than as having acted to cause it. The person making the allegation upon being told by Adam Crome of the applicant's vehement denial, retracted the allegation and the inquiry into the incident then proceeded without any imputation of blame or causal responsibility against the applicant. 11 The applicant's account of the private conversation however, is at odds with Adam Crome's account. The applicant claims he was not only accused of wrongdoing but also told not to fill in an incident report and told he would not be getting shifts if he did file a report. The applicant also said he was the subject of derisive comment from workmates which made him feel threatened and intimidated. 12 Adam Crome denied conducting himself in the manner described by the applicant indicating that at no time during any of their conversations did he raise his voice or threaten the applicant or imply that he would do anything to make the applicant's time at work uncomfortable or untenable. In fact, he told the applicant at the end of the shift on 23 September 2005 that the allegation against him had been retracted, that the cause of the incident namely, a faulty or non-functional braking mechanism on the elevating work platform had been identified and that he (the applicant) was completely in the clear. Adam Crome did say, however, that during his earlier conversation with the applicant, he pointed out by way of friendly advice which the applicant was free to take or leave that quite separately from the near-miss incident, there were areas in which the applicant's work performance and motivation could improve after nine months on the job. 13 Adam Crome also told the applicant that in the light of what his inquiries into the incident had revealed, he did not find it necessary to include reference to the applicant in the report he was preparing. 14 Acting on his brother's advice that if he felt in any way threatened, victimised or intimidated in relation to the incident, he should report the incident immediately, the applicant lodged a completed incident report form with site manager Warren Smith the following Monday 26 September 2005. He also resigned. He was informed by Warren Smith that allegations of harassment in the workplace should be taken up with human resources. He was further informed by Warren Smith that there should be no need for anyone to feel compelled to resign over safety matters. Warren Smith said he also assured the applicant that the near-miss incident would be fully investigated. He said the applicant was reluctant to take the harassment issue up with human resources, that he (the applicant) was determined to resign and did so by tendering his letter of resignation and handing over his keys and identification pass. 15 Warren Smith passed on the applicant's letter of resignation to Nick Angelicas who had more direct supervision over his employment as Technical Operations Manager, Staging. 16 The evidence of Nick Angelicas indicates clearly the lengths to which the employer went in attempting to dissuade the applicant from ending the employment relationship. The applicant was contacted at home on the day of his resignation and offered a Cabcharge to come back to work and discuss the matter. He was told by Nick Angelicas that he was mistaken in his stated belief that he was being blamed by the staging crew for the near-miss incident the previous Friday. 17 Upon hearing from the applicant that he (the applicant) had been intimidated and threatened by Adam Crome on the day of the incident, Nick Angelicas immediately took the matter up with Adam Crome with whom he had worked for over twenty years and for whom such conduct would be completely out of character. He then made repeated attempts to contact the applicant again after speaking to Adam Crome and hearing Adam Crome's very different version of events. Despite leaving voice mail messages for the applicant to the effect that he did not want him to resign, Nick Angelicas heard nothing further from the applicant. 18 The evidence of Mark O'Sullivan was in essence, that the applicant approached him on 26 September 2006 and in describing the events of 23 September 2006, indicated that he was unhappy with the treatment he had allegedly received from Adam Crome and that he intended to resign. As with others, Mark O'Sullivan advised the applicant that there was no need to resign as his continuing employment was not in question. 19 Taking the totality of the evidence into account, it seems clear as Ms O'Brien for the respondent submitted, that the applicant took great offence at the suggestion initially canvassed with him by Adam Crome that he may have been causally responsible for the near-miss incident. This was despite being told later that day that he was cleared of any such involvement in the incident and that he had nothing to worry about in that regard. 20 As to the evidentiary conflict in relation to the conversation between the applicant and Adam Crome, I would find it difficult to accept on balance that Adam Crome conducted himself in the manner alleged by the applicant firstly, because as the unchallenged evidence disclosed, Adam Crome was clearly actively investigating the near-miss incident and therefore would be highly unlikely to be engaging in threatening or intimidatory behaviour towards the applicant in an attempt to suppress the incident. Secondly and again on the uncontested evidence, Adam Crome was in no position to control or limit the number of shifts given to the applicant and thirdly, such conduct would be totally out of character for Adam Crome according to other witnesses on the respondent's side of the record who have known and worked with Adam Crome for many years. 21 That being so and having regard to the strenuous efforts made by various persons in positions of authority within the Sydney Opera House to avoid the loss of an employee (the applicant) in whom a substantial amount of on the job training in the specialised work of staging had been invested, there is no basis as I am disposed upon which to conclude that the respondent was in some way, the real and effective initiator of the termination of the contract of employment. 22 The application for relief is accordingly dismissed. 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