T3457
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Confederation of Industries
Termination of employment - whether employee resigned REASONS FOR DECISION This application was made by the Tasmanian Confederation of Industries (TCI) on behalf of Norwood Presbyterian Home for the Aged Inc (the employer) pursuant to Section 29(1) of the Industrial Relations Act 1984 for the purpose of settling a dispute between the employer and the Health Services Union of Australia Tasmanian No 1 Branch (the union). Simply put, the employer maintained that Mr Ivor Conkie (the employee) verbally tendered his resignation during a discussion with the Administrator of the Home on 3 September 1991. The employee disputed that he had resigned when the employer went to confirm (in writing) the following day that his resignation had been formally accepted. The union advised the employee to continue to attend his place of employment and this gave rise to the application. In an attempt to settle this dispute the applicant requested the Commission to determine whether or not the employee resigned his employment with the employer during the discussion on 3 September 1991. Before turning to that question, I wish to say that I am deeply concerned about the conflicting evidence (under oath) that surfaced during the course of examination and cross examination of the witnesses and I fail to see how two adults could present such different stories on the conversation that took place on the day in question. A summary of the events from the evidence of the employer is as follows: 1. the employee commenced employment with the Norwood Presbyterian Home on Monday 27 May 1991. This was confirmed in correspondence to the employee on 22 May 1991, and it included a probationary period of 3 months to both parties; 2. on 3 September 1991 a discussion took place between the Administrator of the Home and the employee about who would be undertaking the duties of the cook when she proceeded on leave; 3. during the discussion the Administrator requested the employee to undertake those duties and the employee resigned after declining to perform those duties; 4. after leaving the meeting with the Administrator, the employee returned to his work station but not before he had made a call on the Director of Nursing (DON). During that conversation he accused the DON of being the cause of all trouble and said to her "you don't have to worry anymore I have resigned"; 5. after the employee left the DON's office the DON went to the Administrator's office to find out what had taken place as a result of (a) overhearing a heated argument between the Administrator and the employee in the room next door and (b) in view of the statement made to her by the employee about resigning. It was at that time the Administrator confirmed with the Director of Nursing that the employee had resigned. 6. The next day the Administrator delivered the following correspondence to the employee which he refused to accept:
A summary of the employee's evidence shows: 1. he did participate in a meeting with the Administrator and was asked by him to undertake the duties of the cook; 2. during a "firm" discussion with the Administrator the employee expressed concern about the work load and being required to do two jobs even though he was advised by the Administrator that his other duties would be taken care of; 3. at no time during the discussion with the Administrator and subsequently did he tender his resignation either verbally or in writing; 4. he did have a conversation with the Director of Nursing but denied (a) talking to her in an aggravated manner and (b) telling her that he had resigned. The Commission finds itself in a unique situation whereby it has been requested to determine (on an application by the employer) the employee resigned. In the normal course of events the Commission would not intervene in employment termination matters unless it could be established that it was harsh, unjust or unreasonable. Those criteria are not open to me to find in respect to this application. However, I am prepared to say that given the facts and circumstances surrounding this issue I believe the evidence educed from the Administrator and the Director of Nursing is, on balance, more plausible than that of the employee. Having arrived at that conclusion it follows that the employee resigned.
R J Watling Appearances: Date and place of hearing: |