Preston v Randwick City Council [2012] NSWIRComm 1007

Industrial Relations Commission New South Wales Medium Neutral Citation: Preston v Randwick City Council [2012] NSWIRComm 1007 Hearing dates: 05/04/12 Decision date: 18 April 2012 Before: Ritchie C Decision: Catchwords: Application for unfair dismissal-threshold issue-applicant claimed constructive dismissal- applicant appeared before Workers Compensation Commission for hearing of his case-both parties represented by barrister and solicitor-entered into negotiations -agreement reached -part of agreement applicant resigned-now claims forced to resign and unwell on the day-applicant blamed both his and the respondent's legal representatives for forcing him to resign-found that applicant had opportunity to stop proceedings but chose not to-applicant visited his doctor over month after court appearance-Commission found that applicant had not proven that respondent actions a contributing factor in him tendering his resignation- case dismissed. Legislation Cited: Industrial Relations Act, 1996 Cases Cited: Jones v Dunkel (1959) HCA8: Aumeer v Moran Health Care Group(2003) NSWIRComm367. Category: Principal judgment Parties: Mr S Preston (Applicant - self represented)

Mr R Nassif (of Local Government Association of NSW appeared for the respondent) File Number(s): IRC 1513 of 2011

DECISION

Background.

1Mr Stephen Preston (the applicant ) filed a claim for unfair dismissal on 16 September 2011 under section 84 of the Industrial Relations Act, 1996 against his employer Randwick City Council (the respondent). Conciliation took place where the respondent raised the jurisdictional issue as to whether the applicant had resigned of his own accord or had he been terminated at the initiative of the respondent. 2The applicant had injured himself at work on 6 May 2009. A workers compensation claim was filed and accepted. 3A hearing of the applicant's claim was listed to take place on 17 August 2011 before the Workers Compensation Commission. At the commencement of those proceedings the presiding arbitrator Ms Faye Robinson, enquired whether conciliation was appropriate. The parties then withdrew and over a period of some three hours plus, reached an agreement, which was placed before Ms Robinson. Part of the agreement that was reached between the parties was that the applicant would resign from the respondent. 4A hand written document stated: To HR Manager Randwick Council I Stephen Preston hereby voluntarily resign my employment with the Council effective as of today. I take this step with the benefit of legal advice and in order to further my retraining and education. 17 August 2011 S Preston. 5The Commission was advised by the applicant that his barrister had written the letter and he had only signed it. 6As at the 17 August 2011 the applicant was 55 years of age.