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T7164

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for a hearing in respect of an industrial dispute

Aileen Joan Rowlings
(T7164 of 1997)

and

Centennial Hotel

 

DEPUTY PRESIDENT J G KING Hobart, 31 October 1997

Industrial Dispute - alleged unfair dismissal - application dismissed - file closed.

REASONS FOR DECISION

This application was lodged by Ms Aileen Joan Rowlings (the employee) pursuant to s.29 (1A) of the Industrial Relations Act 1984 (the Act), seeking the resolution of a dispute with her former employer the Centennial Hotel, Wellington Street, Launceston. The dispute relates to the employee's claim that her termination of employment was in fact a constructive dismissal. The employee is seeking reinstatement or if that is impracticable, the payment of compensation.

The agreed facts in this matter are that the employee was employed from April 1990 until 23 July 1997 as a casual cleaner. She generally worked three (3) hours per day six (6) days per week with a gross wage of approximately $230 per week. On Monday 21 July 1997 the employee was on sick leave. On Tuesday 22 July 1997 other arrangements were made for the work to be done. The employee returned to work on 23 July 1997. Following a discussion between the employee and Mrs Meindl (the employer) she left the workplace and has not been employed since.

The issue in this matter is the circumstances in which the employee left the workplace and ultimately her job and whether those circumstances constitute constructive dismissal.

Before addressing the issue in this matter I confirm my advice to the parties at the hearing that I am prepared to accept the late (by one day) lodging of the application and therefore proceed with this matter. I make that decision in accordance with the discretion given to me by s.29(1)(1B) of the Act.

Mr Daly (of counsel) submitted that on 23 July 1997 on returning to work the employee was initially upset by the employer who used the words "you are not right". The employee took offence at these words as she felt the employer was saying that she was not well and shouldn't be at work. She in fact felt well and quite capable of returning to her normal work.

Subsequent to using the above words the employer advised the employee that the person who had done the work the previous day had done it in two hours and that from now on the employee would have to do it in two hours per day not three hours as had previously been the case.

The employee then advised the employer that if the other person could do the work in two hours he could have the job and she left the work place. The employee was upset for some time after these events and when she felt capable she sought legal advice.

Mr Daly submitted that the above circumstances constituted constructive dismissal and the Commission should uphold that claim.

In giving evidence the main points relied on by the employee in support of her claim are as follows:-

  • the employee has a form of epilepsy and was absent from work on 21 July 1997 because of a minor seizure early in the morning of that day;

  • her husband rang advising the employer of the illness;

  • later that day the employer rang requesting the employee provide a Doctor's Certificate indicating that she is fit to drive a motor vehicle and use heavy industrial equipment;

  • the employee obtained the certificate as requested and agreed that she would not come in on 22 July 1997 but would return on Wednesday 23 July 1997;

  • on arriving at work a brief discussion on the work requirements for the day was followed by the statement from the employer "Aileen you are not right";

  • the employee was upset by the statement, it inferred she (the employee) was not functioning properly, perhaps not thinking properly when in fact she felt fine;

  • this statement was followed by the employer advising the employee that her replacement on the days off had done the work required in two hours and she would have to do it in two hours from now on;

  • this further upset the employee and on reflecting about what had been said she advised the employer that "if you think he can do it in two hours, he can do it" and left the premises;

  • it was her belief that the work cannot be done in two hours;

  • the employee believed that another person, a friend of the employer's family, wanted the work;

  • this person was the one who had done the work on her days off (21, 22 July 1997) and is now doing the job;

  • the employer had been making petty complaints about her work over the last few months;

  • the employee denied using the words on leaving "you can stick your job";

  • while seeking re-instatement the employee feels a return to her previous employment would be "uncomfortable" for both sides;

  • the employer had been "very good" to the employee when she had had previous problems at work relating to her epilepsy;

  • in cross examination the employee acknowledged that she had walked out and left her job;

  • she also acknowledged that the other employee had not said to her that "he was after her job", or that anyone else at the Hotel had made that statement to her.

The employers position in this matter is that after the exchanges referred to above, on 23 July 1997 the employee "quit her job". On leaving the premises she (the employee) used the words "You can stick your job, if he can do it in two hours he can do it".

The employer called as a witness another employee Ms Gaylene Laura Hazelwood who was a cook and in the kitchen at the time the employee left the premises on 23 July 1997. Ms Hazelwood confirmed the use of the above words by the employee as she left.

The employer maintained that she had always been concerned about the health of the employee and had done everything she could to help her. That her enquiry on the morning of the 23 July 1997 would have been more likely "Are you alright?" rather than the statement "you are not right".

The employer maintained that from time to time she and other staff had taken the employee home or picked her up when they had been concerned about the employee's health. The employer also advised that the only reason for asking the employee to get a certificate from her doctor in relation to her capacity to operate commercial cleaning equipment and drive her motor car was in the employee's interest as she did not want her to have an accident.

The employer agreed the employee was a good performer and that the hotel always looked spotless. She did confirm that there had been some niggling issues of recent months but they were not important and went to things like the replacement of toilet rolls.

The employer submitted she had been left in a difficult situation when the employee walked out on her on 23 July 1997 and that the simple facts were that the employee had left her job and that in her view, that was the end of the matter.

There was no precedent provided to me to assist in determining this matter, I will therefore apply what I consider to be the appropriate tests having regard to the circumstances and established precedent. For me to be satisfied that the employee was the subject of a constructive dismissal in this case I would have to accept that the employer had unilaterally changed a significant part of the employment contract and the employee in the circumstances had no effective or real choice but to leave her employment.

There is no doubt in my mind that the employee abandoned her employment. She did so following two brief exchanges with her employer following her return to work on 23 July 1997 after a two day absence.

In the first exchange the employee gave evidence that she was upset at the employers alleged use of the words "you are not right". The employer suggests she is more likely to have asked "are you all right?" However, she did not specifically deny the use of the words and in any case maintains that she was concerned about and enquiring about the employee's health after she had been away on sick leave.

After a brief departure the employer returned to the employee and raised the matter of time taken to do the work. After advising the employee that her replacement over the previous two days had done the work in two hours she (the employer) advised the employee that she would from that day only have two hours to do the work she had in the past been given three hours to do.

This prompted the employee's departure from the workplace.

I cannot determine from the evidence whether the words "you are not right" were used or not, however, previous actions of the employer concerning the employee's illness lead me to the conclusion that the employer was genuinely concerned about the health of the employee. She had demonstrated this concern by her actions on a number of occasions in the past which were acknowledged by the employee.

If the words "you are not right" were used I am inclined to the view that the employee over-reacted to them and read into them something not intended.

In relation to the issue of hours, there is no doubt that the timing of that advice by the employer after the employee's period of sick leave and after the above described incident, was to say the least most unfortunate. There is also no doubt that the change in hours (if implemented) would be a significant change to the employment contract.

However, the employee's reaction was also unfortunate and ill advised. It is a serious matter for any employee to abandon the workplace.

I can understand the employee being upset in all of the circumstances of that day and believe the employer, while she has every right to raise matters like working hours and in the ultimate convey difficult decisions to employees, could have raised this matter at a more appropriate time and in a more sensitive way. I believe this application would not be before the Commission if she had.

However, there was no ultimatum delivered to the employee that she accept the new working hours or resign and from the evidence I do not believe that the decision to reduce hours was designed to force the employee to resign.

Given the good performance of the employee and good relationship between employer and employee from 1990 to the events of 23 July 1997 I find it difficult to understand why there has been no communication (other than in these proceedings) between the parties since that date. Perhaps the answer lies in the parting comments of the employee. From the evidence I accept the version of the employer in relation to what was said at that time. While I don't consider the parting comments as critical to this case they are important and do provide an answer to why no further efforts were made by either side to resolve any issue over hours.

The employer has obligations to treat the employee fairly in the employer/employee relationship, there is equally no doubt that the employee has obligations to the employer including a responsibility to do her job in a competent and conscientious manner. It appears over the years she has done so, but on 23 July 1997 she abrogated those responsibilities by leaving the workplace before her job was done.

The fact that she did not return to the workplace or contact the employer after that date clearly provides grounds for the allegation that she has abandoned her employment.

I have already detailed what I consider are faults on both sides and believe it most unfortunate that events have taken the course that they have however, I do not believe that the employee had no other reasonable course of action than to abandon her employment or to leave/resign her employment.

Subsequent discussions on the hours issue may have resolved this matter the unfortunate fact is they did not occur.

Having regard for the evidence and submissions in this matter I cannot conclude that a constructive dismissal has taken place. The application is therefore dismissed.

 

J G King
DEPUTY PRESIDENT

Appearances:
Mr M. Daly (of Counsel) for the applicant.
Mrs I. Meindl for Centennial Hotel

Date and place of hearing:
1997
September 8 and
October 8
Launceston