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. Applicant's Case. 7 In the filing of his evidence the applicant filed a binder of documents including a statement from a Ms A Cruz. Individually the documents in the binder were marked as exhibits. The applicant had overlooked to file a statement on behalf of himself. By consent of the respondent's legal representative , the applicant was allowed to give his evidence via the witness stand. 8It was the applicant's submission that on 17 August 2011, when the parties withdrew for conciliation, he and his partner Ms Cruz sat in a room. In another room were representatives from the respondent. In another room was the legal representatives( barristers and solicitors) from both the applicant and the respondent. 9Conciliation was held over three hours. It was the applicant's evidence that on 17 August 2011 he was not well, under medication, and required frequent toilet breaks. The applicant claimed that his barrister stated to him, that if he did not sign the letter of resignation he would not receive any workers compensation payments. He stated that he was told that there was no other choice but to sign the letter of resignation. The applicant stated that he felt he had no other choice even though the applicant had always maintained that he wanted to continue to work for the respondent. When given the letter the applicant sought the opportunity to consider his position , but was advised that this was not an option it must be done today. 10It was the applicant's evidence that these representations made by his legal advisors were made so as to coerce him into signing the resignation letter. This coercion by his legal representatives originated from the respondent's legal representatives present on the day. 11As a consequence of what occurred that day it was the applicant's submission that that it was a forced resignation instigated by the respondent. He had no choice but to sign the resignation letter. 12It was also submitted by the applicant that the respondent had previously tried to assert that the applicant had actually requested to resign with the applicant rejecting such a request. 13The evidence of Ms Cruz who accompanied the applicant on the day was that the applicant's counsel said that you will resign today and I'm going to write a resignation. In responding to a request by the applicant to have time to consider his position, he was advised that this was not an option and that he had to be done today. She stated that their legal representative said to them that the respondent's place would be "toxic" towards the applicant and the applicant needed to get out. She said that the respondent wanted the resignation before going any further with discussion and if he did not resign he would not receive any workers compensation payments. 14She stated that the applicant's legal representatives were told on several occasions that the applicant was not well, and that he had taken medication that morning so he could attend the hearing. He had to go to the toilet on several occasions. She advised that the applicant did not wish to resign. She had known the applicant for sixteen years and on that day he was not behaving like himself. She said that their counsel refused to listen and continued to pressure the applicant. 15She also stated that the documents that were produced on that day were not explained or read to the applicant properly. She believed that their counsel did not act in the best interest of the applicant. Respondent's case. 16The respondent called two witnesses, a Mr James Vrettos and Ms Fiona Calabrese. 17Mr James Vrettos stated that he is a solicitor and partner of Ellisons Tillyard Callanan and has over twenty five years experience as a Workers Compensation Legal Specialist involving advising and representing clients in this area of the law. 18 In his statement he gave a brief history of the applicant's workers compensation claim history which culminated in a hearing being set down for 17 August 2011. An application had been filed on 28 February 2011 in the Workers Compensation Commission to Resolve a Dispute( matter no 001686/11). The dispute related to claims for weekly benefits, medical expenses, compensation for pain and suffering and lump sum compensation for a percentage whole person impairment. He said that the applicant was represented by Mr Beauchamp of counsel and his solicitor was a Mr McQuilkin. He had briefed a Mr Baker of Counsel. After a lengthy negotiation a settlement agreement was reached between the parties which was intended to finalise all aspects of the claim. One element of the package agreement was that the applicant tendered his resignation. At the request of the parties, the settlement reached was formalised by Workers Compensation Commission Arbitrator by Certificate of determination-Consent Orders dated 22 August, 2011. 19He stated that the applicant lodged an Appeal Against Decision of Arbitrator in the Workers Compensation on 16 September 2011. This appeal was dismissed by Deputy President O'Grady dated 10 January 2012. On 9 February 2012 the applicant lodged a Notice of Intention to Appeal in the New South Wales Court of Appeal. 20The other witness called by the respondent was Ms Fiona Calabrese. Ms Calabrese is employed by the respondent in the capacity of Manager, Organisation Staff Service and has held this position since September 2005. 21She stated that the applicant sustained an injury to his ankle at work in May 2009. A claim for workers compensation was accepted. The applicant had not attended for work since July 2009. 22She stated that she attended the conciliation/hearing at the Workers Compensation Commission on 17 August 2011 with other employees of the respondent being Ms Katina Janis and Navashia Safaya. She stated that the respondent was represented by Mr James Vrettos and Mr David Baker. She noted that the applicant was also represented by a lawyer. 23On the day she said that the negotiations went for over three hours in which time she and the other two ladies sat in one room with the applicant and a friend sitting in another and the two parties legal representatives sitting in another room negotiating a settlement. Neither she or the other two ladies spoke to the applicant during negotiations. 24After an agreement had been reached both parties went back before the Arbitrator to place on record the agreement. She stated that was the only time she and the other two ladies from the respondent, had contact with the applicant or his legal representatives. 25She strongly denied that the applicant had been co-erced or pressured by the respondent and or its legal representatives to sign a letter of resignation. She denied that the applicant was advised by the respondent and or its legal representatives that if he were to return to work at the respondent that it would be a "toxic" workplace. 26She also denied that the respondent or its legal representatives had a request put to them by the applicant that he required more time to consider his position. She also denied that the respondent or its legal representatives wrote out the resignation letter nor was it forced upon the applicant by the respondent or its legal representatives. 27She also denied that the respondent or its legal representatives were responsible for any "acts" to gain the applicant's signature. 28On 17 August 2011 whilst she only saw the applicant for a few moments she did not observe him to be unwell or unable to think clearly. 29She also stated that at no time did the respondent during the applicant's employment with the respondent compel the applicant to resign. When the applicant sought to be paid out his annual leave when he was in the respondent's employment , the respondent advised that the only way this could happen was if he resigned. Consideration and decision. 30The threshold issue before this Commission is did the applicant resign of his own accord or did he not ? Was it the actions of the respondent and or their legal representatives that resulted in the applicant having no alternative but to sign the letter of resignation ? 31On 17 August 2011 both the applicant and the respondent attended the Workers Compensation Commission for a hearing of the applicant's claim. It was accepted by both parties that the Arbitrator Ms Faye Robinson at the commencement of proceedings offered the opportunity to both parties to settle the matter through negotiations. This was accepted by both parties. Negotiations commenced and were carried out by the legal representatives of both parties. Evidence was given by both parties that neither the applicant or his friend Ms Cruz or Ms Calabrese and the two other employees of the respondent spoke to each other during the negotiations. All negotiations were carried out only by the legal representatives of each party. 32The negotiations ended with a Heads of Agreement document being reached which was placed before the Arbitrator. The solicitor for the respondent Mr Vrettos stated that this was the first time that he had been in the same room as the applicant. The Arbitrator after considering the Heads of Agreement made such Orders and Notations and issued a Certificate of Determination. 33The thrust of the applicant's submission was that on the day of 17 August 2011 he was unwell and it was the actions of the legal representatives from both the respondent and the applicant that forced him to sign the letter of resignation. Whilst the applicant was not a witness to the negotiations that took place between the two parties legal representatives as they were in another room, it was his submission that it would have been at the direction of the respondent, via their legal representatives, to make an ultimatum to his legal representatives that he had to resign. 34Mr Vrettos gave evidence that what was agreed to by both parties was a package that included the payment of monies and his resignation. 35The difficulty in accepting the submission of the applicant is that he provided no evidence from either or both of his legal representatives on the day, to support his claim. Neither of the two persons were called by the applicant. He clearly had the opportunity to call either or both of his counsel and solicitor to give evidence, yet he failed to do so. In the circumstances I believe it is appropriate for this Commission to rely upon the rule in Jones v Dunkel [1959]HCA 8 that their evidence would not have helped the applicant's submission in this matter. 36The applicant has also relied upon the issue that on 17 August 2011 he was unwell and therefore not in a position to make an important decision. He stated that he sought extra time to consider his position. Ms Cruz supported both these claims that he was unwell and that he sought extra time. Included in his evidence was a medical report from his treating doctor, Doctor Elizabeth Heks dated 17 October 2011. This report was addressed to the Workers Compensation Commission. This report was based on a conversation that she had with the respondent on 19 September 2011 in which he advised the doctor of the medication he had taken on the morning of 17 August 2011 and how unwell he felt on the day. The doctor stated in her report the following: "I was not there and I do not know if Mr Preston has done what he has said to me, but if what he says is correct it is highly plausible that these events could have significantly impaired Mr Preston from being able to think and act in a clear manner on the day." The respondent noted the date of the applicant's first visit to his doctor being over one month after his court appearance and noted the comments in Aumeer v Moran Health Care Group [2003] NSWIRComm 367 that: " there was no medical evidence at all as to the applicant's mental or psychological condition at the time he said was relevant; namely immediately prior to the time of his resignation. It is simply not enough to assert a medical condition and expect the Commission to accept it as fact." 37I accept the respondent's submission with respect to this issue. If the applicant felt unwell or incapable of participating in his court matter then he should have advised his legal representatives and withdrawn from the proceedings. He could have then proceeded immediately to see his doctor and be treated accordingly. This he did not do. 38It is my finding that the applicant had the power to cease the negotiations that were taking place on 17 August 2011, if he did not feel well and or if one of the conditions of the proposed package was he tender his resignation and or if he required further time to consider his options. He had the power to direct his legal representatives that he did not agree to the package and that he wished to proceed with an arbitration of his case, after all that was the original purpose of the day. To have his claim heard and determined. This he did not do. 39The applicant has sought to lay blame on not only his own legal representatives but those of the respondents for what occurred on 17 August 2011. It is my finding that it was his own failure to act, if he so desired, that resulted in the outcome on the day. 40To bring a case of constructive dismissal, the employee must be able to show that the termination of his employment was at the initiative of his employer. The actions of the employer must be the principal contributing factor which led to the termination of the employment relationship. 41In this matter the applicant has failed to prove on the balance of probability, that the resignation letter that he signed on 17 August 2011 was as a consequence of the actions of the respondent. 42As a consequence of my findings I dismiss the applicant's claim. This matter is now concluded. D. Ritchie 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. Decision last updated: 21 June 2012