Transport Workers’ Union of New South Wales (on behalf of Diane McKenzie) and WSN Environmental Solutions [2010] NSWIRComm 27

Industrial Relations Commission of New South Wales

CITATION: Transport Workers' Union of New South Wales (on behalf of Diane McKenzie) and WSN Environmental Solutions [2010] NSWIRComm 27

APPLICANT Transport Workers' Union of New South Wales on behalf of Diane McKenzie PARTIES: RESPONDENT WSN Environmental Solutions

FILE NUMBER(S): IRC 1577 and 1578 of 2009

CORAM: Sams DP

TERMINATION OF EMPLOYMENT – applicant's resignation – whether applicant constructively dismissed – permanent employee requests transfer – alleged temporary transfer to new location – requirement for internal recruitment process – delay in interviewing candidates – errors in pay – new uniforms requested – failure to provide pay slips – conversations with managers – conflict of evidence – stress and anxiety caused by uncertainty – resignation withdrawn five days later – principles of constructive dismissal – whether unilateral withdrawal of resignation requires consent of both parties – procedural unfairness – principles considered – reinstatement sought, without loss of continuity or remuneration. CATCHWORDS: CONSTRUCTIVE DISMISSAL – applicant's treatment appalling – no guarantees of returning to former position – applicant preferred candidate – other candidates withdraw applications – applicant told no job for her to go back to – evidence of applicant preferred – reasonable that applicant would be anxious, stressed and upset – applicant only remaining candidate – respondent accepted the applicant was upset and behaving out of character – delay in recruitment process inexplicable – resignation given in state of emotional stress – withdrawal of resignation warrants departure from general rule – no reason why withdrawal should have been considered – actions of employer demonstrate that it was the real and effective initiator of the termination of employment – constructive dismissal established – dismissal 'harsh, unreasonable and unjust' – procedural unfairness established – rejection of claims of impracticality of reinstatement – reinstatement primary remedy – orders for reinstatement, no loss of continuity and lost remuneration.