Industrial Relations Commission New South Wales Medium Neutral Citation: Parker v Secretary Department of Education and Communities [2015] NSWIRComm 1020 Hearing dates: 30 October 2015 Decision date: 10 November 2015 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: The respondent's submission that the Commission lacks jurisdiction in the matter is rejected. Catchwords: UNFAIR DISMISSAL – Jurisdiction – dismissal – when resignation can be regarded as dismissal for purposes of Act – constructive dismissal – determination of whether a termination was in fact a constructive dismissal to be arrived at by a transactional analysis – ultimatum provided - no negotiations after ultimatum provided – dismissal – jurisdiction lies. Cases Cited: Allison v Bega Valley Council (1995) 63 IR 68 Smith v Director General of Education (1993) 51 IR 204 Category: Principal judgment Parties: Ms S Parker (applicant) Secretary Department of Education and Communities (respondent) Representation: Counsel: Miss L Doust (applicant); Mr A Britt (respondent) Solicitors: De Brennan Tomlinson Pearce (applicant) Ms M Buchanan (respondent) File Number(s): IRC 270 of 2015 Judgment 1. This decision is made in the context of an application pursuant to s.84 of the Industrial Relations Act 1996 ('the Act') brought by Ms Stacey Parker against the Secretary Department of Education and Communities. 2. In the course of conciliation of that application the respondent raised the question of the Commission's jurisdiction to hear and determine the application. The question of jurisdiction was then referred to me for determination. 3. While the respondent raised the question of jurisdiction, there is in terms no moving party in the proceedings before me, which is entirely appropriate. The Commission, as a body with a jurisdiction prescribed by statute, either has jurisdiction to hear a given matter or it does not. Questions of onus do not arise. Question before the Commission 1. Section 84 of the Act refers to an employee being 'dismissed' by an employer. The jurisdictional prerequisite for the Commission to entertain an application under s.84 of the Act is, therefore, that an employee has been 'dismissed'. 2. The actual meaning of the term 'dismissed' is not to be found in the Act. Sub-section 85(3) is not correctly described as a definition of the term; that sub-section has another purpose. 3. However, there is a long line of authority which establishes what a 'dismissal' is for the purposes of the Act. A dismissal occurs when an employee is 'sent away or removed' from employment by the employer: Smith v Director General of Education (1993) 51 IR 204 at 219. 4. Here, of course, the respondent did not in terms express itself to have dismissed the applicant; rather, the applicant furnished a written resignation, which was accepted. 5. However, there is an equally long line of authority to the effect that where an employment contract is formally brought to an end by a resignation, the cessation of employment may nevertheless be regarded as a termination of the employment by the employer, that is, a dismissal for the purposes of the Act. 6. As a Full Bench of the Commission held in Allison v Bega Valley Council (1995) 63 IR 68 at 72: "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. 1. The Full Bench went on to hold that the correct question to be asked is this: 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? 1. It is not, though, simply a question of whether the employer evinced at any time an intention to dismiss at some point. There may be, as the Full Bench went on to observe, a dynamic and changing situation even after such an intention has been stated: "(f)or 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 any undue influence being brought to bear by the employer." (at 72) 1. It is also relevantly to be observed that the Full Court of the Industrial Court of NSW in Smith supra held: Therefore, we find no difficulty in accepting the ordinary meaning of "dismissal" suggested by Brereton J in Ex parte Wurth as being "the termination of services by the employer without the employee's consent"; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal: see Willis (at 136, 137), Ex parte Wurth (at 59, 60), Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild Re Dismissal [1979] AR (NSW) 392 at 393 and Western Excavating (ECC) Ltd v Sharp [1978] 1 CR 221 at 225, 226. (at 205, emphasis added) Facts 1. The relevant law is therefore well-established. The question before the Commission falls to be decided in the basis of the following facts. 2. In 2014, the applicant became the subject of a Teacher Improvement Program. 3. On 27 February 2015 Ms Jane Thorpe, Director, Employee Performance and Conduct Directorate of the respondent wrote to the applicant advising that she was considering imposing disciplinary action upon her. Ms Thorpe identified a range of possible disciplinary steps including dismissal. Further, Ms Thorpe indicated that she was considering placing the applicant's name on what is anecdotally known as the 'not to be employed' or NTBE list. 4. In that letter the applicant was provided with an opportunity to provide any additional information that she wished to be taken into account, and was offered the opportunity of having an interview with Ms Thorpe before a decision was made. 5. On 13 March 2015 the applicant advised that she did not require an interview with the Director and that the NSW Teachers' Federation would make a submission on her behalf. The respondent was therefore entitled to regard representations from the Teachers' Federation as representations made for and by the applicant. 6. On 20 March 2015 Ms Thorpe received a letter from Mr John Dixon, Branch Secretary of the Federation, containing submissions on behalf of the applicant. Rather curiously, given that Ms Thorpe had communicated no determined intention to dismiss the applicant or to ask her to resign, but merely set out a range of disciplinary options up to and including dismissal, the Federation referred to a decision to dismiss the applicant. There was no evidence that any such decision had been taken at that point. 7. The letter then proposed that the applicant be permitted to relinquish her position at York Public School in favour of the nearest available mainstream classroom position, or alternatively, that she be able to resign and that she be given casual approval for casual teaching. 8. By letter dated 31 March 2015, Ms Thorpe replied to the Federation stating that she would be willing to allow the Applicant to resign on conditions, they being that the applicant submit her resignation by the end of the week, and that she be granted casual approval for 12 months, on application, conditional on providing ongoing reports attesting to her teaching skills. That letter said nothing about termination of employment. It can properly be read as a response to the submission by the Federation that in terms invited Ms Thorpe to permit the applicant to resign. 9. If the Applicant had in fact resigned at that point, based on that exchange of letters, and without more, the proposition that she freely resigned and that no dismissal took place might well hold good. 10. However, the matter did not end there. 11. The applicant did not provide her resignation, nor indeed did she respond at all, by the end of the week. By email dated 7 April 2015, she indicated she was unable to sign the resignation form and sought further time to consider her position. 12. On 7 April 2015 Ms Thorpe wrote to the applicant in these terms: "The Teachers Federation made representations on your behalf and it was on that basis that I offered to allow you to resign, rather than being dismissed…… ... I will grant you 14 days from 2 April (i.e. 16 April) to submit your resignation, otherwise I will be required to proceed with a dismissal." 1. The applicant then engaged solicitors, who wrote to the respondent on 10 April 2015 effectively seeking an extension of time to respond. 2. Ms Thorpe replied to that letter on the same day, saying: "should your client fail to resign by the due date (16 April 2015) she will be dismissed from the Teaching Service." 3. Following a further approach from solicitors for the applicant seeking an extension, Ms Thorpe wrote to them again on 15 April stating: "I will not grant a further extension. Your client is required to resign by 16 April 2015 or she will be dismissed." 4. Shortly before midnight on that same day, 15 April, the applicant emailed Ms Thorpe her resignation. 5. On 16 April 2015, Ms Thorpe wrote to the Applicant stating that she had received and approved the resignation form. 6. The respondent clearly accepted that it was a resignation with conditions attached; although there was some bureaucratic confusion about documents later, it is clear that it was always the case that the respondent accepted the applicant's resignation on the basis that she would apply for and be granted a casual approval to teach. Consideration 1. The respondent urges the Commission to accept that the resignation was freely provided. It submits that the resignation emerged from negotiations which resulted in the applicant gaining a benefit, that is, that the granting of casual approval to teach be given (and by necessary implication from that) that the applicant not be placed on the NTBE list. 2. The cessation of employment, on the respondent's case, therefore fell into that category of matters which is contemplated in Allison, that is, where after an initial demand for a resignation negotiations ensue and the applicant should be seen as someone who is "ultimately ... genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer." 3. In the alternative, the respondent submits that so far as the applicant had any rights arising from the cessation of her employment, she has compromised or settled those rights by seeking and accepting the conditions that attached to the resignation, that is, the casual approval to teach. I return to that below. 4. The determination of whether a termination was in fact a constructive dismissal must always be arrived at by a transactional analysis. That is, what is fundamental is the chain of events, and particularly the communication between the parties. 5. Here the answer to the question of jurisdictional fact that the Commission must answer – 'was there a dismissal?' – is resolved on analysis of the exchange of correspondence. 6. There was initially no expression by the respondent of a definite decision to dismiss absent a resignation. The correspondence of 20 March from the Federation was not, in fact, a negotiation in the face of a decision to dismiss if no resignation were offered. That proposition had never been advanced by the respondent. 7. Ms Thorpe's letter of 7 April misstates the earlier situation in stating that she had on 31 March offered the applicant a choice to resign rather than be dismissed. That was not in fact the offer she made on 31 March. She had never before 7 April expressed a concluded view that she had decided to dismiss the applicant. 8. However, in that letter of 7 April Ms Thorpe states unequivocally that that is now the position. That is, in the 7 April letter she states that the choice facing the applicant is to resign, 'otherwise I will be required to proceed with a dismissal.' It is at this point that the proposition, which may be properly characterised as 'resign or be dismissed,' is put to the applicant for the first time. It has already been established that the 'resignation,' if offered, will be accompanied with a causal teaching approval on application. That was not part of any subsequent negotiation. 9. Solicitors for the applicant approached Ms Thorpe twice more in writing, but in each case the approach is about extension of time. There was no attempt to negotiate another position or other conditions surrounding the resignation. Ms Thorpe responded to both letters by stating unequivocally on two further occasions, 10 April and 15 April, that if the applicant does not resign she will be dismissed. 10. That analysis disposes of any suggestion that the proposition 'resign or be dismissed' was later overtaken by negotiations leading to a result with which the applicant is happy. From the time that the ultimatum is first put to the applicant by the respondent, 7 April, there are no discussions or communications that could allow any view that there was a negotiated outcome that overtook the ultimatum of 7 April. 11. When the applicant tendered her resignation late on 15 April, she did so in the face of an ultimatum that if she did not do so she would be dismissed on 16 April. That is precisely the situation contemplated in Allison as being a dismissal. The real and effective terminator of the employment was the respondent. 12. The fact that it had earlier been agreed that the resignation would be accompanied with an approval for casual teaching is not to the point. That condition was not negotiated in the face of the ultimatum, but decided before. 13. And that analysis disposes of the respondent's argument that so far as there was any dismissal the applicant compromised or settled her rights under s.84 of the Act. She could not have done so, because there was no negotiation from the moment that the proposition, resign or be dismissed, was first put to her on 7 April. 14. The applicant was dismissed from her employment. On the assumption that the application is pressed, I propose to list the matter for directions. The parties will be advised of the date. PETER NEWALL 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: 10 November 2015