Industrial Relations Commission of New South Wales CITATION: McIntosh-Hanratty and Macleay Kalipso Inc [2006] NSWIRComm 1076 APPLICANT Karen Louise McIntosh-Hanratty PARTIES: RESPONDENT Macleay Kalipso Inc FILE NUMBER(S): 6126 of 2005 CORAM: McLeay C CATCHWORDS: unfair dismissal - accommodation service manager - resignation submitted - whether resignation from position or from the organisation - applicant continued to work after resignation - resignation accepted - no obligation to offer alternative position - allegation of harassment not made out - no constructive dismissal - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Sovereign House Security Services Ltd v Savage [1989] IRLR 115 Allison v Bega Valley Council (1995) 63 IR 68 HEARING DATES: 21/04/06 DATE OF JUDGMENT: 05/10/2006 APPLICANT Mr K Byrnes, solicitor Byrnes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Felle, agent Jobs Australia Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MCLEAY C 10 May 2006 Matter No IRC 6126 of 2005 Karen Louise McIntosh-Hanratty and Macleay Kalipso Inc Application by Karen Louise McIntosh-Hanratty re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1076 1 This is an application by Karen McIntosh-Hanratty for unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. Ms McIntosh-Hanratty was employed by the respondent, Macleay Kalipso Inc, since 1991, first as a Support Worker and, since 2000, as House Manager at a group home known as The Links. The Links houses a number of people with intellectual disabilities and forms part of the accommodation service provided by the respondent. Ms McIntosh-Hanratty said she was employed in dual roles of House Manager and Key Worker for two clients. The evidence 2 Early in 2005 two employees had time off work on workers' compensation following an incident involving a violent client. Ms McIntosh-Hanratty stated that she "received blame" for the injuries received by the employees. They were the same people who had complained about her to the Union following a report in which Ms McIntosh-Hanratty had reprimanded them. 3 While Ms McIntosh-Hanratty was on long service leave, the wife of a member of the respondent's Management Committee conducted a review of the respondent's services. Ms Dixon, the Treasurer of the Management Committee, said that the Committee wanted to ensure that employees were fully aware of the review and participated in it. To this end, Ms McIntosh-Hanratty was invited to a meeting with Ms Dixon and Lorna Whitford, the Chairperson of the Management Committee. Ms McIntosh-Hanratty attended the meeting on 27 September 2005 accompanied by her husband who was also employed by the respondent. Ms McIntosh-Hanratty was shown a copy of the Review Report. 4 Ms McIntosh-Hanratty's evidence was that Ms Whitford told her that it would be best if she stepped down from her position as House Manager. Ms Dixon gave evidence that no such proposal was presented or discussed on 27 September. 5 Ms McIntosh-Hanratty further stated that Ms Dixon had said they envisaged a new position for Ms McIntosh-Hanratty within the service, and asked her to prepare a proposed job description for a new position of Clinical Services Manager. Ms Dixon, on the other hand, said that she and Ms Whitford did not propose a new position for Ms McIntosh-Hanratty. Ms Dixon did ask Ms McIntosh-Hanratty to prepare a draft position description for a possible position arising from the Review Report, that of a Clinical Coordinator. 6 At the end of the meeting, Ms McIntosh-Hanratty understood that the Management Committee wanted her to resign from the position of House Manager on the basis that, if she did so, she would be provided other employment within the organization. 7 Ms McIntosh-Hanratty prepared the draft position description as requested, conducted a review of The Links and provided a report with recommendations to the Management Committee. She received no feedback from the Committee. 8 For various reasons, Ms McIntosh-Hanratty decided to resign as House Manager. Her letter of resignation was dated 10 November 2006 and read as follows: I hereby resign as manager of the Links Unit effective as at the 10-11-05. It is with deep regret that I am forced to take this drastic action due to the continued harassment and innuendo surrounding my management of the Link's [ sic ] unit. The sustained campaign against myself in this role of manager has taken a severe toll on my personnel [ sic ] well being 9 Ms McIntosh-Hanratty continued to work in accordance with her roster. 10 Ms Dixon said that, as soon as the Management Committee became aware that Ms McIntosh-Hanratty had resigned and had continued to work beyond her resignation date, the Committee determined to accept the resignation and to direct her to cease performing the work at The Links. 11 However, when checking with the Supervisor, who was also Ms McIntosh-Hanratty's husband, the committee was told that Ms McIntosh-Hanratty wanted to continue her employment, in a different role. 12 The letter from the Committee dated 14 November and received by Ms McIntosh-Hanratty the following day stated: In response to your letter of resignation of House Manager of the Links, Grade 4. We accept your resignation effective immediately. The nature of the content raised, OH&S issues, the Management Committee need to manage. You used language such as, continued harassment and innuendo against yourself that has taken a severe toll on your personal well-being. As a committee responsible for your well-being, we must take action to remove you from this environment. Your letter of resignation was tabled at a meeting today, 14th November 2005, and as a result we now instruct you not to present on shift at the Links from the 15th November 2005. We are immediately considering other rolls within the organization. We will set a meeting date for you to meet the Management Committee on Friday 18th November 2005, at the Kalipso Office annex at 4pm to discuss these options with you. Your current rate of pay will remain the same until this has been discussed with you. 13 At the meeting on 18 November, it was confirmed that the resignation was accepted and that there were no other roles available in the organization. Ms McIntosh-Hanratty protested that she had not resigned from the service, only from the position of House Manager, but the Committee members present at the meeting took the view that, as she had resigned from the position to which she had been appointed, her resignation was accepted. Ms McIntosh-Hanratty asked to rescind her resignation, but that request was not granted. Consideration 14 Because some essential elements of the evidence of the witnesses are opposed, it is surprising that other witnesses were not called. The onus is, of course, on the applicant to prove her case. Since she provided a written resignation to the Management Committee she has an added obstacle to overcome. 15 Ms McIntosh-Hanratty's resignation was based, she said, on the understanding that she would continue to be employed in another role with the respondent. This understanding was based on her recollection of a meeting held on or about 27 September – a meeting where she took as her witness her husband. Mr Byrnes submitted that the applicant resigned only from one role, induced by representations made to her. Ms Dixon emphatically denied that any such representations were made. In not calling her husband as a witness in these proceedings, it is available for a Jones v Dunkel inference to be drawn against the applicant, that is, it is inferred that the calling of the witness would not support the applicant's case. 16 On Ms Dixon's version of the events of 27 September, that is, that no offer or proposal was put to Ms McIntosh-Hanratty that she should resign from the position of House Manager and be offered a different role in the service, there is no basis to construe the letter of 10 November as anything other than what it would appear to be – a resignation. I do not accept that the letter should be read as a partial or conditional resignation, but as a resignation from the applicant's employment with the respondent. 17 Ms McIntosh-Hanratty commenced employment as a Support Worker with the respondent in 1991. In 1996 or thereabouts, she became a Key Worker. She was appointed House Manager of The Links in 2000, and had a written contract of employment as House Manager dated 30 January 2003. Although she claims that she spent a very small proportion of her time on House Manager duties, she was appointed to and paid as House Manager. 18 There are some inconsistencies in the overall view of events offered in evidence by Ms McIntosh-Hanratty. For example, it is difficult to accept that she was led to believe that she was preparing a draft position description for herself, purportedly leading to a more senior position with a pay increase, and then complained that she received "little support" or "lack of support" from the Management Committee. It is also difficult for me to accept that, feeling a lack of support, she would then resign without knowing what options might be available to her – whether it be as a Support Worker or as a Clinical Services Manager/Coordinator. Her statement that she trusted the Management Committee is inconsistent with other evidence, particularly the reasons she gave for leaving the position. 19 It is also unusual, to say the least, that an employee who expects to be considered for an alternate position would give no notice to an employer when leaving a position of some responsibility. Ms McIntosh-Hanratty did not communicate her thoughts or intentions to the Management Committee during her employment or at the time of her termination. She said she took long service leave because of her workplace circumstances, but there is no evidence to suggest that she told the Management Committee about this or requested any assistance in resolving any alleged difficulties arising from her work situation. In fact, the two employees about whom she complained had not worked at The Links since the commencement of 2006. 20 During cross-examination Ms Dixon revealed that the Management Committee only became aware of Ms McIntosh-Hanratty's desire to continue in another role on the afternoon of 14 November. Mr Hanratty was approached in his role as Service Manager with the respondent. It was he who told the Committee that his wife wished to continue working with the respondent. It would appear on the evidence that the applicant had simply left her letter in a pigeon hole for her Chairperson, not even ensuring that the letter was received in a timely way. Having written the letter on 10 November, she made no evident attempt to negotiate an alternative role, either before or after her husband spoke for her. As it was, the Committee received the notice of resignation on Monday, 14 November. 21 Having been alerted to the possibility that Ms McIntosh-Hanratty's letter intended something other than a resignation from the position to which she was appointed, the Chairperson's letter to her became, in Ms Dixon's words, "a bit ambiguous". The Committee had received a letter of resignation, accepted that resignation and prepared to write to the applicant to acknowledge the termination of the employment relationship. It is apparent that, having received information from Mr Hanratty, the Committee attempted to incorporate into the letter some terms to accommodate Ms McIntosh-Hanratty's wishes. This is when the letter became ambiguous. 22 The Committee's letter accepting Ms McIntosh-Hanratty's resignation refers to a consideration of other roles within the organization and the continuation of the current rate of pay until the meeting on the following Friday. I do not accept that the letter gave Ms McIntosh-Hanratty any right to continued employment. It simply allowed her to be paid for a few more days while her request - received late and via a third party - was considered. The action of the Committee at the following meeting was a confirmation of their earlier decision made in response to their receipt of Ms McIntosh-Hanratty's letter. 23 As to the request to rescind the resignation, it is available to the Committee not to grant such a request. A resignation, freely given, does not bear with it any automatic right of rescission: Sovereign House Security Services Ltd v Savage [1989] IRLR 115. This was not a situation where the resignation could be said to have occurred in the heat of the moment, nor was it in response to any conduct of the respondent designed to influence the applicant to resign. 24 A reference was provided in evidence, dated 23 November and given to Ms McIntosh-Hanratty by a member of the Management Committee. The reference is in positive terms and shows no hint of any antagonism between Ms McIntosh-Hanratty and her employer. There is, neither in the reference nor in the evidence generally, any reason why the employer would have attempted to force the applicant's resignation. In short, there are no circumstances that would allow Ms McIntosh-Hanratty's resignation to be construed as a constructive dismissal. 25 Ms McIntosh-Hanratty believed that she was stressed arising from certain events and situations in the workplace. However, there was no evidence that she had made a claim against the respondent although the evidence shows that she was aware that other employees had done so. It cannot be said that she was not aware of her right to make a claim. Rather, she took long service leave to which she was entitled. 26 She referred in her letter of resignation to "continued harassment and innuendo surrounding my management of the Link's [sic] unit" yet, by her own account of the meeting on 18 November, this was not an issue for her. She offered no evidence in support of her allegation of harassment except to say that some comments had been published in her Union's magazine. Without having had the advantage of viewing the material referred to by the applicant, I do not accept that such publication would, in the normal course, amount to intimidation or harassment such as to cause a resignation. In any case, it is not something for which the respondent could be held accountable. It follows that such harassment, if it existed, was not such as would cause the applicant's resignation to be construed as a constructive dismissal: Allison v Bega Valley Council (1995) 63 IR 68. Conclusion 27 Given all of the above circumstances, I am satisfied that the applicant resigned. She has not fulfilled the onus on her to show that there was a dismissal in accordance with the Act. The application is dismissed. oOo 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.