Industrial Relations Commission of New South Wales CITATION: Diane Lee Gorter v Mollymook Golf Club Limited [2006] NSWIRComm 1126 APPLICANT Diane Lee Gorter PARTIES: RESPONDENT Mollymook Golf Club Limited FILE NUMBER(S): 182 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissal application - business restructure - Applicant a part-time employee who applied to be a full-timer - unsuccessful - redundancy offers closed prior to Applicant's unsuccessful application outcome - Applicant and other employees given new roster arrangement - Applicant's conerns with new roster - 15 November meeting - Applicant resigned on 20 December - constructive dismissal claim rejected - application dismissed. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 11/04/06 DATE OF JUDGMENT: 09/29/2006 APPLICANT John A Clarke, solicitor LEGAL REPRESENTATIVES: RESPONDENT G Arnold, industrial advocate, Clubs NSW DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 29 September 2006 Matter No IRC 182 of 2005 DIANE LEE GORTER v MOLLYMOOK GOLF CLUB LIMITED Application by Diane Lee Gorter re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1126 1 This is an application by Diane Lee Gorter ("the Applicant") for unfair dismissal against Mollymook Golf Club Limited ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 Conciliation between the parties was unsuccessful and the matter was set down for a Hearing on 15 August 2005. That Hearing was subsequently vacated. 3 A new Hearing date of 31 October was eventually vacated owing to Commissioner O'Neill taking extended leave of absence. This file was reallocated to Commissioner McKenna on 31 October. 4 Subsequently, the file was reallocated to myself, Commissioner Macdonald. 5 The Hearing took place in Moruya Court House on 11 April 2006. The Applicant was represented by Mr John Clarke, solicitor, who called the Applicant as a witness. The Respondent was represented by Mr Greg Arnold, employer advocate of Clubs NSW. Mr Arnold called the following witnesses: · Graham Limberick - Relieving Secretary Manager · Kevin Harvey - Consultant (to the Respondent) · Ronald Walpole - a Director BACKGROUND 6 The Applicant was employed by the Respondent for two separate and distinct periods: 1985 to 1995 (as a casual employee) and 1997 until 2004. During the second lot of employment the Applicant converted from casual to part-time employee in 1999. 7 The Applicant was employed under the terms of the Club Employees (State) Award. 8 During 2004, the Respondent engaged a consultant, Mr Kevin Harvey, to assist in the restructure of its operations. 9 During October 2004, staff information meetings were held on the restructuring process. 10 On 25 October 2005, a staff notice was placed on the notice board inviting expressions of interest in voluntary redundancies and seeking same by close of business on Friday, 5 November 2004. 11 On 29 October, three full time positions were advertised and the Applicant applied for one of those full time positions. 12 The three full-time positions were filled. 13 The Applicant's application for one of the three full-time positions was unsuccessful. The successful and unsuccessful applicants were notified by no earlier than 10 November. This notification was five days after expressions of interest for voluntary redundancies closed. 14 On 15 November, the Applicant attended a meeting at work. Apart from the Applicant, also in attendance were Vicki Carriage (another employee), Graham Limberick (then general manager of the Respondent), Ron Walpole (then a director of the Respondent) and Kevin Harvey (consultant). 15 Prior to, soon after, or at the meeting of 15 November 2004, the Applicant became aware that her application for a full-time position had been unsuccessful. Instead, she was offered a new position as a part-time employee on a new rotating roster that involved split shifts. 16 The Applicant was upset with the outcome of the meeting. 17 The Applicant proceeded to take one week's sick leave from 16 November; that was followed by two weeks' annual leave; and a further period of sick leave. 18 On 20 December (without having returned to work since 15 November), the Applicant wrote a letter to the board of directors of the Respondent, indicating that she was terminating her employment and was resigning, effective 28 December 2004. FINAL SUBMISSIONS For the Applicant 19 Mr Clarke, solicitor for the Applicant, put the following written final submissions: (a) The Applicant was dismissed by the Respondent and that dismissal was harsh, unjust and unreasonable ("unfair dismissal"); (b) The unfair dismissal arose out of the restructuring of the Respondent's business; (c) The Applicant had applied for one of the full-time positions in October 2004. She was unsuccessful but her evidence is that she received no written communication to that effect from the Respondent, who claimed to have written (10 November 2004) to the unsuccessful candidates; (d) There is no clear evidence that the Applicant became aware of her unsuccessful application of a staff meeting held on 10 November; (e) The Applicant did not become aware she had been unsuccessful until 15 November; (f) The selection process for filling the full-time positions did not involve any formal selection criteria; (g) The Applicant was the longest standing employee of the Respondent at the time of the selection process for the full-time positions; (h) The "default" position for unsuccessful applicants for the full-time positions would be part-time positions involving split shifts; (i) On the basis of admissible evidence, there were no performance grounds that could have precluded the Applicant from being successful for a full-time position; (j) The Applicant could have accepted a redundancy package then on offer but did not do so, as she was led to believe by two senior managers that her then job (permanent part-time in the coffee shop) was still secure and permanent. The deadline by which to accept the redundancy offer had passed when the Applicant was advised she had been unsuccessful in her full-time position application; (k) The Applicant was totally unsatisfied with the outcome of the meeting with the Respondent on 15 November. No meaningful discussion was possible about the split shifts roster that was to come into operation for the Applicant; (l) The Applicant wrote her resignation letter on 20 December, because it was a case of "jump or be pushed". 20 Mr Clarke submitted that the foregoing demonstrated that the Applicant's contract of employment had come to an end by way of a constructive dismissal. For the Respondent 21 Mr Greg Arnold, employer advocate for the Respondent, put the following written submissions: (a) The Applicant resigned from her employment, voluntarily. (b) The Applicant was not "squeezed out" of her employment by the Respondent. (c) The Applicant was not given an ultimatum of "resign or be sacked". (d) The Respondent restructured its business and called for voluntary redundancies. The Applicant did not so apply. (e) The Applicant was a part-time employee who applied for a full-time position but was unsuccessful. (f) Subsequently, the Applicant resigned her employment by letter of 20 December 2004. (g) It was submitted that a number of circumstances contributed to the Applicant's decision to resign her employment: dissatisfaction with the new roster; then unsuccessful application for a full-time employee position; a claim that the employer had said "work the roster or leave" at the meeting of 15 November; a view that she was not wanted; and other staff had taken her job in the "coffee shop". Mr Arnold's written submissions addressed the foregoing circumstances. (h) The Applicant's case is only supported by herself. She called no supporting or corroborating evidence. 22 In conclusion, Mr Arnold submitted that the Applicant was not constructively dismissed. The Applicant had ample time to consider her position and had freely resigned her employment. Applicant in Reply 23 Mr Clarke, for the Applicant, put the following written submissions in reply: (a) There was no evidence before the Commission that the Respondent had any right to vary the Applicant's employment in the manner proposed, during the year of 1999. (b) The Respondent's final submissions contain some important concessions in relation to the evidence of the Applicant. As well, these concessions rebut the Respondent's claim that there is no supporting or corroborating evidence for the Applicant's case. (c) It was submitted that the Respondent's final submissions contained assertions of fact that are not based on evidence in the proceedings. (d) The Commission was asked to reject the Respondent's assertion that the Applicant had been advised by letter (Exhibit 1), she had been unsuccessful in obtaining a full-time position or that she had been advised of that unsuccessful application at a meeting on 10 November 2004. (e) The Commission was asked to note that the calling for expressions of interest for voluntary redundancies closed on 5 November which was before the key meetings of 10 and 15 November. (f) The only job option open to the Applicant by the meeting of 15 November, was that of a part-time position involving split shifts on a rotating basis. That offered position did not resemble her previous hours and duties. 24 In summary, Mr Clarke submitted that the circumstances of the case showed that a constructive dismissal had taken place. Thus, after the meeting of 15 November 2004, the Applicant had been placed in a position where she was required to take on a different and inferior position from the one she had previously worked in. CONSIDERATION 25 The Applicant claimed that her resignation letter of 20 December 2004, was not a genuine resignation but rather reflected events going to a constructive dismissal. The Respondent denied the foregoing claim. The Commission will firstly consider the events/issues leading up to the resignation letter, in order to assess the Applicant's constructive dismissal claim. Needless to say, some of those events/issues were in dispute between the parties. Chronology of Events/Issues 26 The Applicant's second lot of employment began in 1997 as a casual employee. In 1999, she accepted permanent part-time employee status and held that status till her resignation letter. 27 The Mollymook Golf Club (the Respondent) underwent a restructuring process during 2004 as to its systems and operations, in order to improve efficiency and profitability and to combat non-smoking and poker machine taxes. A consultant, Kevin Harvey, was engaged to assist with staffing issues, including consultation with staff and the relevant union: the Australian Liquor Hospitality and Miscellaneous Workers Union ("the ALHMWU"). 28 The consultation process involved discussions with two parties: the ALHMWU (on behalf of its members) and non-union staff (the non-union committee). 29 That consultation process dealt with introducing a new roster arrangement and one that would be part of the Applicant's constructive dismissal claim. The new roster arrangement (also called "core or base roster") provided for, inter alia, a rotating roster amongst four part-time employees. The Applicant was to be one of those four part-time employees. The Respondent submitted that some of the shifts are day shifts, night shifts and split shifts and were to be shared equally amongst all of the part-time employees, so that there was to be no advantage or disadvantage by one employee over another. The Commission finds that the Applicant did not dispute the foregoing submission about the roster type (day shift, night shift and split shift) and its non-discriminatory operation. Further, the Applicant did not work the new roster. 30 The Applicant did, however, raise an issue about the new roster and its relevance for her constructive dismissal claim. She stated that the split shifts caused a difficulty for her in that she would be at work, then go home but only to return to work in three hours. She lived a little bit out of town and the travelling distance, combined with whether to change out of and into a uniform whilst at home - in the space of the three hours between the split shifts, was the difficulty she was referring to with the split shift arrangement. (Tr 34, line 45 to Tr 35, line 55) The Applicant agreed that the split shift arrangement occurred once every three weeks and three such split shifts occurred in that week. (Tr 34, line 57 to Tr 35, line 9) The Commission will consider below in its Decision, the inconvenience caused to the Applicant by the new roster system proposal. 31 The Applicant also raised as an objection to the new roster, that there would be loss of hours of work: "quite considerably" (Tr 35, line 8 to 9) This objection also formed part of her constructive dismissal claim. The Respondent disputed this claim. The Respondent submitted that the new roster would average 32 hours per week (base or minimum hours) over a four week cycle. The Respondent referred to the Applicant's evidence (Ex 6) which was a summary of the hours worked by the Applicant over the prior 18 months. This document showed her weekly hours average to be 33 hours. The Respondent stated that the 33 hours were not minimum or base hours, but actual hours worked. Thus, the Respondent submitted on the one hand that the Applicant was only incurring one hour loss per week between the old and new roster and a one hour loss could not be categorised as hours that " dropped quite considerably ", as claimed by the Applicant. Further, and on the other hand, the Respondent submitted that the new roster represented a base or minimum number of 32 hours per week. These hours per week would increase on occasions where business demanded: for example, functions and events. The Commission will consider below in its Decision, the Applicant's claim that there would be a loss of hours of work in the order of " quite considerably ". 32 There was another issue that arose about the consultation process. The Respondent submitted that the Applicant really had no concerns about the new roster system for the part-time employees and only raised concerns belatedly when she was told she had been unsuccessful in her application to be a full-time employee. This submission was in response to the Applicant's claim that she voiced concerns with the ALHMWU about the new roster. She also said that the ALHMWU refused to represent her because she had not been a member of that union for a long enough period to be represented. The Applicant stated that she had joined the union in October 2004. The Commission finds firstly that the Applicant did have a concern about the new rostering system. This is supported by the evidence of the Respondent's witnesses: Walpole (Ex 9 - paras 18 to 20 incl.) and Harvey (Ex 8 - paras 23 to 25 incl.) On the Respondent's evidence, these concerns had been raised in the office of Mr Limberick on 12 November (albeit denied by the Applicant) and this predates the Applicant's evidence (accepted by the Commission) that she only found out on 15 November that she had been unsuccessful in her full-time application. 33 There was another issue about this new rostering system proposal and that went to the Applicant's claim that that proposal did not apply to her. 34 The Applicant gave evidence that she saw the new proposal pinned up and what her new roster would be. (Tr 27 - line 19 to 32) However, it was her evidence that this pinned up notice was about a proposal that was open for discussion. Her evidence that it was open for discussion came from, she said, a discussion that she (and Vicki Carriage) had had with two managers: Pat Monty (who is the upstairs bar manager) and Bill Robinson (who is the downstairs catering manager). The Applicant's evidence went further, when she said that these two managers had told her and Carriage that the new roster system did not apply to either her or Carriage. The reason being for the non-application of the new roster system, was the need to have the Applicant and Carriage working in the coffee shop. (Tr 27 - line 34 to 58) 35 This reasoning was challenged under cross-examination. It was put to the Applicant that there was no such thing as a coffee shop in October - November 2004. The Applicant disagreed. (Tr 28 - line 1 to 40) 36 In any event, under further cross-examination, the Applicant agreed that when Bill Robinson spoke to her about still working in the coffee lounge, he had not made a statement to her to that effect, but rather posed a question to her: Would you still operate the coffee lounge? The Applicant agreed that Bill Robinson had not made a promise to her about her continuing to work in the coffee lounge. (Tr 39 - line 40 to Tr 40 - line 22) 37 The Commission finds that the Applicant was not promised a job by Bill Robinson in the coffee shop or coffee lounge, by her own admission. 38 The Applicant also advanced that Pat Monty and Bill Robinson had said that the new roster system would not apply to her and Ms Carriage because of the need to have those two employees working in the "coffee shop". It was the Applicant's claim, as well, that a stand alone "coffee shop" existed at the golf club and this was her duty. 39 The Respondent disputed this and stated that there was no stand alone "coffee shop" and such a concept was not introduced until after the Applicant's employment had ceased. Thus, Mr Limberick (the former Relieving Secretary Manager) gave evidence that the "coffee shop" was part of the bar in which all staff worked. All staff (including the Applicant) served coffee, sandwiches and beer. (Tr 62 - line 27 to 56) Mr Harvey (the consultant) gave evidence supporting that of Limberick. (Tr 76 - line 37 to Tr 77 - line 5) Mr Walpole also gave evidence supporting Limberick. (Tr 86 - line 47 to Tr 87 - line 16) 40 The Commission finds, on the weight of the evidence, that there was no stand alone "coffee shop" at the time of the Applicant's employment and that the Applicant would not have just been serving coffees but performing other duties - serving sandwiches and beer. 41 The real significance of the "coffee shop" issue, is that the Applicant claimed that she had been visited by a certain employee, Sue Osborne, whilst the Applicant was absent from work from 16 November to the date of resignation. The Applicant said that Sue Osborne had been offered the Applicant's position of working in the "coffee shop". If this was so, it would give support to the Applicant's claim of being "squeezed out" by the Respondent and hence support her claim of a constructive dismissal. In assessing the Applicant's claim the Commission notes that Sue Osborne was not called by the Applicant as a witness to support the Applicant's claim. Mr Limberick (the former Relieving Secretary Manager) said in evidence-in-chief that he had no knowledge that Sue Osborne worked in the "coffee shop", and further, his evidence was that she worked in administration. (Tr 62 - line 8 to 25). Mr Limberick conceded in cross-examination that Sue Osborne had in the past performed work in the bar area but had been progressing from part-time bar work and administration work to nearly full time administration work prior to Christmas 2004. (Tr 69 - line 51 to Tr 70 - line 24) 42 Without further evidence from the Applicant, the Commission is unable to find that Sue Osborne had been given the Applicant's position, in the "coffee shop". The other hurdle for the Applicant in respect of her claim, is the Commission's finding above, that there was no such stand alone job position as "coffee shop" as claimed by the Applicant. 43 The final event/issue for consideration is the meeting of 15 November 2004. This was organised by the Respondent after hearing of concerns being raised by the Applicant and Carriage about the new roster system and about the Applicant not being appointed to the three full-time positions that had been offered to staff. (Ex 8 - para 23) The Applicant claimed that certain statements were made to the Applicant, at this meeting, and which were evidence of her being "squeezed out" by the Respondent. She deposed that Harvey, the consultant, said: " You have the option to work the roster or you can leave ." She further deposed that Limberick, the Secretary-Manager said: " There are no positions for you in the coffee lounge, you have had it too easy ." (Ex 7 - para 11) 44 Ms Carriage was present at this meeting but did not give evidence in the proceedings. 45 The Respondent was represented by Messrs Limberick, Walpole and Harvey. Walpole deposed that the Applicant was not, at any stage, intimidated or pushed to resign. (Ex 9 - para 22). Harvey denied the Applicant's claim, as well. (Ex 9 - para 25) Limberick appeared under summons and during evidence-in-chief, denied the Applicant's claims. (Tr 66 - line 36 to 46) He was not cross-examined on this issue. Under evidence-in-chief, Harvey denied he had said words of "work the roster or leave". He also said that Limberick could have said something to the effect: "You've had it too easy for too long", to the Applicant. (Tr 79 - line 23 to 26) Mr Walpole was not cross-examined on his denial of the Applicant's claims. In assessing the Applicant's claim as to whether words, of a "squeeze out" kind, were spoken to her, the Commission is conscious that she carries the onus of proving what she asserts. 46 The Applicant claims that there were two lots of words spoken to her. One lot is "work the roster or leave." All three of the Respondent's witnesses who were present at that meeting, denied that that lot of words was spoken. And so it is the Applicant's claim (assertion) against three other witnesses. As well, the other eye witness to that meeting of 15 November, Ms Carriage, did not provide evidence in the proceedings. 47 Given the foregoing, the Commission finds on the weight of the evidence, that the Applicant has not proven her claim that that lot of words (assuming they represent words going to a constructive dismissal), was uttered. 48 The second lot of words: "You've had it too easy for too long", could have been uttered by Limberick, according to Harvey (the consultant). Even if that was the case, do these words necessarily represent words going to a constructive dismissal - of being "squeezed out"? The Commission does not think so. If these words were spoken, then depending on context, the words may not represent what the Applicant claims, but rather that Limberick was forecasting a change in working circumstances (but continuing work) for the Applicant. (Again, and in any event, the Respondent's witnesses denied pushing the Applicant to resign.) 49 The Commission finds that the Applicant has not shown that this second lot of words (if spoken) represented a "squeezing out" of the Applicant. Summary of Evidence 50 The Commission has considered a number of events/issues and made the following points: (a) The rotating roster involved four part-time employees. The Applicant did not dispute that the rotating roster was made up of day shift one week, night shift one week and split shift one week and was to be worked equally amongst the four employees. (b) The Applicant's concern with the new roster was the split shift arrangement and her claim that her hours of work would be adversely affected - that is, less hours of work: As well, there was the inconvenience factor going to travel between work - home - and work again. (c) The Applicant had raised concerns about the new roster but not formally with Limberick (Acting Secretary Manager), Walpole (a Director) and Harvey (the consultant). (d) The Applicant had been unsuccessful in her application for a full-time position, but was not aware of this until 15 November - and then after her (and Carriage's) unplanned meeting with Limberick, Walpole and Harvey on 15 November. (e) The Applicant had not applied for voluntary redundancy following the Respondent's notice to staff calling for expressions of interest. The date for closure of expressions of interest was 5 November. (f) The Applicant conceded that she had only been asked as to whether she would like to work in the "coffee shop". She was not promised a position in the "coffee shop". Accordingly, her claim that the new roster system did not apply to her because of this promise by Monty and Robinson, is not a matter for the Commission's consideration. (g) The Commission finds, in any event in respect of (f) above, that there was no stand alone "coffee shop" operating in the golf club prior to 2005. That is, the Applicant was involved in dispensing coffees, sandwiches and drinks from a bar/coffee area. (h) The Applicant claimed that a fellow employee, Sue Osborne, visited her (shortly before the Applicant tendered her resignation), and said that she (Sue Osborne) had been given the Applicant's job of working in the "coffee shop". This was disputed by the Respondent who through the evidence of Mr Limberick had said that Osborne was working nearly full time in administration work rather than bar work. The Applicant carried the onus to prove this claim and the Commission finds that the claim is not proven. In any event, the Commission had already found that there was no stand alone "coffee shop" position. (i) The Applicant claimed that words were uttered to the Applicant at a meeting on 15 November and these words were of a "squeeze out" kind . The Commission held that this claim was not proven. Constructive Dismissal Claim 51 The Applicant claimed that her resignation letter was really not a voluntary resignation but that she had been "squeezed out" - that is, the resignation was the direct result of the Respondent's conduct towards her. The leading authority as to what conduct by an employer constitutes constructive is found in: Allison v Bega Valley Council (1995) 63 IR 68 at 72 to 73: "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 ensue 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 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. " 52 The onus is on the Applicant to prove that the Respondent (the employer) was the real initiator of her resignation. 53 The Applicant claimed that her resignation was a constructive dismissal based on the conduct of the Respondent's officers at the meeting of 15 November. That is, the conduct (certain uttered words) was an attempt to "squeeze her out." The Commission considered the Applicant's claim but rejected the same (see discussion above at paragraphs 43 to 49 inclusive). 54 The Applicant also claimed that her resignation was a constructive dismissal (of the "squeezing out" type) based on the Respondent offering her job to another employee by the name of Sue Osborne. The Commission considered the Applicant's claim but rejected the same (see discussion above at paragraphs 41 and 42) 55 The Applicant put that her resignation was a constructive dismissal because of the impact of the new roster arrangement. Specifically, she cited the working of split shifts and a quite considerable drop in the number of hours to be worked by her under the new roster. 56 As to the working of split shifts, the Commission found that the new roster arrangement was not exclusively a split shift arrangement and accordingly the Applicant would be working a split shift, along with a day shift and night shift. Further, the Applicant was not being singled out to be the only employee working the new roster (see paragraph 29 above). 57 The Applicant raised as her concern about the split shift arrangement that she would be leaving work - travelling home - then having to decide whether to change out of her uniform whilst at home - and then returning to work to complete the back half of her split shift (see paragraph 30 above). As already stated above, the Commission found that there was no singling out of the Applicant by the Respondent for adverse treatment. There were two other employees involved in this new split shift roster arrangement. Accordingly, it cannot be said that the Respondent was seeking to "squeeze out" the Applicant. 58 The Applicant's other concern was her claim of a quite considerable loss of hours of work due to the new roster arrangement. The evidence, however, did not support this claim. The new roster arrangement would only mean a loss of one hour per week, at best. Further, the hours of work on offer under the new roster was a minimum (core or base) hours of work (see discussion above at paragraph 31). The Commission finds that the loss of one hour per week, does not represent an attempt by the Respondent to "squeeze out" the Applicant. 59 The Commission has also considered whether the evidence supports a constructive dismissal by way of a demotion. The evidence shows that this is not a case of a full time employee being offered a part-time position. The Applicant was and remained a part-time employee throughout the events in question. Further, the change in the Applicant's conditions of employment (one week of split shifts in a three week roster and the loss of one hour of work per week), could not be said to be a demotion. The changed conditions of employment were not peculiar to the Applicant. 60 Another submission of the Applicant was that she should have been a successful candidate for one of the three full-time positions being created under the new business restructuring. It was uncontested that the Applicant was the longest serving employee but had still been unsuccessful. Be that as it may, there was no other evidence brought to show that there was a discriminatory selection process at play by the Respondent - with the end design being the "squeezing out" of the Applicant. There was a flaw in the manner in which the Respondent dealt with the outcome of the full-time selection process. That is, the Respondent could not demonstrate that it had advised the Applicant of her unsuccessful application to be a full-time employee - until several days after other applicants had been advised. And given the Applicant's lengthy service with the Respondent (albeit in two lots of service), she deserved a personal (face to face) communication on her unsuccessful attempt. (The Commission notes that the Respondent did line up a meeting with her on 15 November after its officers heard of her concerns, about the new roster, on the grapevine.) 61 There was a submission raised by the Applicant's solicitor about the change in status of the Applicant's employment - loss of remuneration as a result of that change - and that it was all the result of a unilateral variation of the Applicant's contract of employment. Whatever merit there may be in this submission, there are two factors against the Applicant on this submission. 62 Firstly, the Respondent did act upon the "grapevine" concerns of the Applicant and brought her to a meeting on 15 November. That meeting was attended by Messrs Limberick (relieving secretary manager), Walpole (a director) and Harvey (the consultant). In other words, there were responsible officers of the Respondent in attendance. Ms Carriage (another unhappy candidate for one of the three full-time jobs) was also in attendance. The Applicant was unaware of the purpose of the meeting. Be that as it may, it was a meeting called by the Respondent to deal with the concerns of these two employees. 63 The Applicant, then, had the opportunity to air her concerns and thus place them before the Respondent's responsible officers for a response or even action. What happened at that meeting was an issue in the proceedings. 64 The Applicant's witness statement (Ex 7 - para 11) referred to this meeting and deposed she had been given an ultimatum of like it or leave. 65 Harvey's witness statement (Ex 8 - paras 23 and 24) deposed that the Applicant: would not sit down at the meeting - used foul language - and advised she did not want to work afternoon shifts or weekends. He deposed that there was an offer to overlay the new and old roster for comparison but the Applicant refused the offer and virtually walked out of the meeting. This evidence was not challenged during cross-examination. 66 Walpole's witness statement (Ex 9 - paras 19 to 21) deposed that the Applicant entered the meeting room, and before any discussions could take place, launched into a tirade of foul language and insults directed at all three men. The Applicant remained standing throughout the meeting despite several requests for her to be seated. There was an offer to overlay the old and new roster to evaluate the effect of any change on her hours or shifts. The Applicant refused this offer and walked out of the meeting. This evidence was not challenged during cross-examination. 67 Limberick appeared under summons and hence there was no witness statement from him. His evidence-in-chief was that the meeting was "too heated" and the Applicant was "rude and angry" and her language "fairly colourful" and it was not possible to resolve any issues. (Tr 65 - line 56 to Tr 66 - line 34) This evidence was not challenged during cross-examination. 68 The Applicant, in evidence-in-chief, said that she felt there had been no discussion on the roster proposal, she had been very quiet and had been given the option of like it or leave. (Tr 18 - lines 14 to 27) The Applicant was challenged under cross-examination about her version of the meeting. (Tr 43 - line 18 to Tr 44 - line 8). 69 In determining this conflict in the evidence, the Commission has been persuaded by (a) the weight of evidence by the Respondent (three witnesses); (b) that there was no adverse credit reason as to why their evidence should be challenged; and (c) that Ms Carriage (the other aggrieved employee) did not give evidence. Accordingly, the Commission finds that the Respondent made an offer to discuss the Applicant's concerns, including a comparison of the old and new roster as to their respective impacts on the Applicant, but the Applicant declined to do so. The Respondent's officers cannot be held to account given their initiating the meeting and offering to discuss the Applicant's concerns. In making that last statement, the Commission is aware that Mr Walpole (a director) said under cross-examination that consultation had already taken place in respect of any employee coming forward and questioning the new roster system. (Tr 91 - line 50 to 54) However this issue was put to Mr Limberick (acting secretary manager) for comment. 70 Secondly, there is the delay factor against the Applicant about the matters of concern to the Applicant. The meeting with the Respondent took place on 15 November and the Applicant's resignation letter is dated 20 December (Ex 3). The Respondent heard nothing further from the Applicant about her concerns in the intervening period. The Applicant went off on sick leave on 16 November; followed by a pre booked two week holiday and thence returned to her sick leave absence status. The Applicant did not telephone or correspond with the Respondent about her concerns. The Respondent then received correspondence advising of the Applicant's resignation. Under those circumstances, the Commission finds it would be unfair to hold the Respondent to account for the Applicant's delayed silence. CONCLUSION 71 The Commission concludes that the Applicant's claim that her resignation was not freely given but was in reality, a constructive dismissal, has not been made out by her. 72 Accordingly, the Applicant was not a dismissed employee as contemplated by s 84 of the Act and the application is dismissed. 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.