Watson & New Horizons Enterprises Ltd [2005] NSWIRComm 1219 (8 December 2005)

Last Updated: 13 December 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Watson & New Horizons Enterprises Ltd [2005] NSWIRComm 1219

FILE NUMBER(S): 1380

HEARING DATE(S): 16/08/2005, 06/09/2005

DECISION DATE: 08/12/2005

PARTIES:

APPLICANT

Thomas Frederick Watson

RESPONDENT

New Horizons Enterprises Limited

JUDGMENT OF: Stanton C

LEGAL REPRESENTATIVES

APPLICANT

Mr S Lewis, Cunningham & Adam Solicitors

RESPONDENT

Mr P Amos, Agent

Workplace Relations Consulting

CASES CITED: Allison v Bega Valley Council [1995] NSWIRComm 175

Cherry v Allied Express Transport [1997] 73 IR 305

Giannone and the Australian Workers' Union, Greater New South Wales Branch [2003] NSWIR Comm 418

Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183

Minato v Palmer Corporation Ltd (1995) 63 IR 357

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: STANTON C

8 December 2005

Matter No IRC 1380 of 2005

Thomas Frederick Watson and New Horizons Enterprises Limited

Application by Thomas Frederick Watson regarding unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

DECISION

[2005] NSWIRComm 1219

1 This is an application pursuant to section 84 of the Industrial Relations Act 1996 (the Act) filed by Mr Thomas Frederick Watson (the “applicant”) seeking relief from his alleged forced resignation from New Horizons Enterprises Limited (the “respondent”) on 24 February 2005.

2 The applicant aged 49 years, commenced employment with the respondent on 5 March 2000 as a Residential Support Worker. The applicant sought reinstatement and, in the event the Commission rendered that primary remedy impracticable, monetary compensation.

3 In arbitration proceedings, the applicant's solicitor, Mr S Lewis, submitted the applicant no longer sought reinstatement.

4 The applicant's reasons for the application were set out as follows:

"I was pressured into resigning by:

· being accused of allegations falsely

· by the company stating I was to be given a final written warning, when no previous warnings were given

· the company had a file of exonerated or unproven allegations which they stated showed a failure to follow directives

· the HR Manager led me to believe the interview was of an insignificant nature and there was no need for representation."

5 The respondent's reply stated the following:

"Tom was clearly advised of the reason for the meeting on 24 February 2005. This advice was given when Tom was notified of the meeting.

Tom resigned of his own accord without any pressure. Both of the New Horizons staff members present at the meeting are professional in their work behaviour.

On resignation, Tom left the meeting. He stated that he would not complete his shift.

In the circumstances I declined to allow Tom to rescind his voluntary resignation. My decision was based on the circumstances of the meeting of 24 February 2005 and other facts known to me."

6 The respondent's reply was filed by Ms Judith Ann Mathews. It is not clear whether the respondent's version of events set out in paragraph 5 above were drafted by Ms Mathews or the Chief Executive Officer, Mr Stephen Kinkead.

7 The application was filed on 17 March 2005. McLeay C conducted a conciliation conference on 18 April 2005. Directions for filing of evidence were issued on 11 May 2005. The matter was subsequently allocated to the Commission as presently constituted and brought to hearing on 16 August and 6 September 2005.

8 As the matter did not conclude on 6 September 2005 the Commission directed the parties to file written submissions. Filing was completed on 21 September 2005.

9 Mr S Lewis, Solicitor, Cunningham and Adam appeared for the applicant. Mr P Amos, Principal, Workplace Relations Consulting appeared for the respondent as agent.

10 At the time of the alleged termination, the applicant's normal gross wage was $855.96 per week.

EVIDENCE

The Applicant

11 The applicant is a former AGL gas technician who has retrained to work in community based work involving persons with varying forms of mental, physical and intellectual impairment and, assist such persons in their daily living activities.

12 The applicant holds a Certificate 4 in Drug and Alcohol Counselling and a Diploma of Community Services. He is currently in his third year of a Bachelor of Ageing Health and Community Services.

13 The applicant deposed his role with the respondent was to assist residents to lead, as best as possible, a normal life consistent with the limitations imposed by their respective impairment or disability.

14 The applicant's role and duties included:

(a) medication compliance

(b) resident grocery shopping

(c) assisting residents with budgeting

(d) assisting and encouraging residents under care to cook, clean and carry out basic living skills.

15 The applicant deposed that on or about 17 February 2005, he attended the Newcastle Head Office of the respondent where Ms Lisa Marshall, Human Resources Officer said to him, words to the effect:

"Tom, I need to have a chat to you next Wednesday about some issues that have been raised by some of the residents."

The applicant said words to the effect:

"OK, but I can't see you next Wednesday because it's the team meeting."

Ms Marshall said words to the effect:

"Well, I'll make it next Thursday at about 2.00pm.

The applicant said words to the effect:

"OK, I'll see you then."

16 The applicant maintained that when he next met with Ms Marshall at the meeting on 24 February 2005, he felt unwell. He was also concerned that he was scheduled to proceed on annual leave two days later on 26 February 2005.

17 Attached to the applicant's affidavit was a certificate from Warabrook Doctors and Skin Cancer Clinic dated 18 March 2005 indicating he had suffered sleep deprivation as a result of his children's then recent illness.

18 When the applicant attended the respondent's Newcastle office on 24 February 2005, he became aware that Ms Pat Waugh, acting Hunter Regional Manager would be joining the meeting.

19 The meeting commenced with Ms Marshall stating words to the effect:

"Tom, do you want a support person with you?"

The applicant deposed he was not aware of the exact nature of the meeting and accordingly replied with words to the effect:

"No, I think I'll be alright."

20 Ms Waugh subsequently read out a number of complaints concerning the applicant - there were two from residents and another concerning alleged inadequate handover on a particular day. In this regard, Ms Waugh also alleged the applicant left a client unattended at John Hunter Hospital.

21 The applicant was completely unaware prior to attending the meeting of the nature and range of allegations put to him.

22 The applicant deposed that when Ms Waugh put the allegations to him, he became aware that they could be seen by a third party to be serious. However, because he knew the factual circumstances surrounding the allegations, it was his belief that the responses he gave concerning the circumstances of the allegations would satisfy Ms Waugh and Ms Marshall.

23 During the course of the meeting, neither Ms Waugh nor Ms Marshall commented on his response to the allegations raised. It was the applicant's evidence that he believed Ms Marshall had a vendetta against him during the interview.

24 At the conclusion of the meeting, the applicant was asked to wait outside the meeting room. After approximately 10 minutes, the applicant was asked to return to the meeting room where either Ms Waugh or Ms Marshall said words to the effect:

"We have decided to give you a final written warning."

The applicant said words to the effect:

"I don't believe it."

Ms Waugh said words to the effect:

"Well that's what we are going to do."

The applicant said words to the effect:

"I'm not going to put up with that."

Ms Marshall said words to the effect:

"Well, what are you going to do about it?"

The applicant said words to the effect:

"I will resign and you will get my written resignation in the morning."

25 The applicant deposed that the statement "I will resign..." was a reflex reaction. The applicant stated that he felt threatened by both the nature of the allegations and the manner in which they were put to him.

26 The applicant stated he believed that in order to formally resign, he would need to provide a written resignation. He was not aware that an employer could act on a verbal resignation. The reason for uttering his intention to resign, according to the applicant, was to afford himself some time to think about his position with the respondent.

27 Shortly after the meeting, the applicant attended Hunter Street Medical Centre and obtained a medical certificate stating that he was unfit to work until 28 February 2005, when he would be on annual leave.

28 The applicant maintained he did not intend to furnish a written resignation as he did not intend to resign from his position with the respondent. He anticipated the outstanding issues with the respondent would have been dealt with in a rational way upon his return from annual leave.

29 The applicant stated that on Sunday, 20 February 2005, he was rostered to work at the respondent's Broadmeadow site where care is provided to a number of residents who live in residential units. One resident requires 24 hour care.

30 On commencing his shift at 3.00pm, the applicant stated that he was informed that shift staff had received a telephone call from Ms Marshall earlier that morning advising that no-one was available for the 11.00am to 7.30pm shift that day.

31 The applicant stated he was concerned about working alone as he had meals to prepare and medication to dispense, in addition to providing care to the resident who required 24 hour supervision. Safety was uppermost on his mind.

32 The applicant deposed he phoned Ms Marshall and left a message on her voice mail to the effect:

"I am ringing to let you know that we are short staffed and I take no responsibility if someone is hurt."

About an hour later Ms Marshall returned his call and said words to the effect:

"How dare you ring me at my parents' place. I look after up to 60 resident support workers and you are the only one who whinges. You are nothing but a whinger."

The applicant said words to the effect:

"I'd like to see you come and do this work."

Ms Marshall said words to the effect:

"Can't you do your job? Are you incompetent?"

The applicant said words to the effect:

"Why don't you stick a broom up my arse and I'll sweep the floor as well as do everything else. All I was ringing for was to have you note that in the event something happened to one of the residents due to being short staffed, then I will not be responsible."

Ms Marshall said words to the effect:

"Well, it's noted."

33 The applicant stated that neither Ms Waugh nor Ms Marshall provided any reasons for supporting the final written warning nor did they confirm whether his various responses to the allegations raised were accepted or rejected.

34 The applicant stated that the first complaint concerned an allegation that he knocked too loudly on a client's door. He defended his actions on the grounds that two ladies live in the unit and, as they are on medication, he did not wish to enter and find them either partially dressed or asleep. The second complaint also concerned the two ladies. The applicant had informed them he was going to put them on the "coconut diet" as a joke, following a radio news report that certain persons had survived on an island for a number of weeks eating coconuts. The applicant stated that both he and the ladies "had a bit of a laugh about it". The third complaint was made by Ms Waugh concerning the carriage and care of, a Merewether client at John Hunter Hospital.

35 The applicant stated he was upset and angry during the interview because Ms Marshall was continually shaking his file and stating words to the effect:

"Look, this is your file, you know, this is your file..."

36 Both Ms Waugh and Ms Marshall referred to a range of previous matters concerning his family, some swearing incidents and various other issues he did not know were the subject of file notes.

37 The applicant stated that when Ms Marshall confronted him on 17 February 2005, he believed he had done nothing wrong and it was his perception that Ms Marshall believed the issues to be raised were insignificant.

38 At the conclusion of the meeting on 24 February 2005, the applicant stated he said to Ms Marshall words to the effect:

"I'm not going back to work I'm feeling sick."

39 Upon leaving the Broadmeadow office, he informed the receptionist that he was going home sick and was going to the doctor.

40 The applicant confirmed his belief that he had not formally resigned on the grounds that the respondent's written policies and procedures clearly state that all resignations must be in writing.

41 The applicant denied he approached the interview with Ms Waugh and Ms Marshall on the basis that the complaints and allegations were simply a trivial matter.

42 The applicant strenuously denied allegations concerning his non-compliance with the case manager's directions, policies and procedures through cross examination and sought to minimise their severity and standing.

43 Throughout his evidence, the applicant found difficulty in comprehending a range of questions put to him by Mr Lewis and Mr Amos. He repeatedly denied stating that he had said to Ms Waugh and Ms Marshall the words, "I resign."

44 The applicant said he left to attend the doctors at approximately 3.00pm. When he returned home, his wife told him Ms Waugh had phoned at approximately 4.50pm. The applicant phoned Ms Waugh at approximately 7.00pm and Ms Waugh subsequently informed the applicant, words to the effect:

"I need to inform you that we have received advice from ..(sic)..that New Horizons accepts your verbal resignation effective immediately, witnessed by two staff members, and that you will not be required to work any further shifts..."

Respondent

Ms Judith Mathews

45 Ms Mathews deposed she was the respondent's Sydney based Human Resources Manager.

46 On or about 14 February 2005, Ms Marshall had contacted her regarding three complaints concerning the applicant. She arranged for Ms Marshall to interview the complainants and arrange a meeting with the applicant to put the allegations and afford him an opportunity to respond.

47 Ms Mathews stated she had informed Ms Marshall of the importance she attached to ensuring the applicant had a support person with him at the meeting.

48 During the meeting with the applicant, Ms Waugh contacted her to discuss the applicant's response.

49 It was Ms Mathew's evidence that she instructed Ms Marshall to issue a final written warning. She denied discussing any option concerning the applicant's termination with Ms Waugh or Ms Marshall.

50 Ms Mathews stated she subsequently received advice from Ms Waugh and Ms Marshall that the applicant was angry at being told he would received a final written warning. Further, when she was told "Tom had handed in his resignation" and said, "I am not even going to complete my shift," she sought advice from the respondent's industrial relations representative and on advice, subsequently instructed Ms Waugh and Ms Marshall to accept the resignation.

51 It was Ms Mathew's evidence that in giving the instruction to accept the applicant's resignation, she took into account the fact that on more than twenty occasions between March 2002 and January 2005, the applicant had been counselled and held to account in response to complaints from clients and supervisory staff concerning his work performance.

52 In cross examination, Ms Mathews stated neither Ms Waugh nor Ms Marshall was instructed to put the allegations in writing to the applicant prior to the meeting on 24 February 2005.

53 Ms Mathews stated she did not believe it was inappropriate for Ms Waugh, one of the complainants, to attend the interview on 24 February on the grounds that she was Acting Regional Manager at the time and there was no other person available.

54 Ms Mathews could not recall whether or not she was advised the applicant had applied for sick leave prior to the acceptance of his verbal resignation.

55 Ms Mathews confirmed the respondent was concerned about the applicant's use of foul and profane language in the workplace, the gravity of which was generally at the upper end of the scale.

Ms Lisa Marshall

56 Ms Marshall deposed she was the respondent's Human Resources Officer based in the Hunter Region Branch.

57 In February 2005, Ms Marshall received two complaints against the applicant dated 9 February 2005 from two residents located at the respondent's Merewether facility. The complaints concerned the "coconut diet" incident and an allegation concerning swearing. She also received a complaint from Ms Waugh concerning the applicant's care of a resident who had recently been diagnosed with an acute urinary tract infection.

58 Ms Marshall deposed she raised the complaints with Ms Mathews who directed her to investigate each of the complaints. Shortly thereafter, Ms Mathews instructed her to arrange a meeting with Ms Waugh, the applicant and herself.

59 Ms Marshall subsequently arranged the meeting with the applicant on 24 February 2005. In an undated statement marked with the letter "D" attached to her affidavit, Ms Marshall declared she had informed the applicant that Ms Waugh would also be attending the meeting.

60 In opening the meeting on 24 February 2005, Ms Marshall noted the applicant did not have a support person and when she reminded him of his right to have a support person present, the applicant replied, "I think I can cope."

61 Ms Marshall deposed the applicant denied most of the complaints and further, she believed the applicant did not comprehend the significance of them.

62 In order to assist the applicant to understand the significance and gravity of the complaints, Ms Marshall stated she provided a number of examples of how situations subject to complaint could have been dealt with more effectively.

63 Ms Marshall subsequently informed the applicant there was a common thread concerning the issues raised by the complainants: the applicant regularly failed to follow directives, used inappropriate and profane language and, exhibited inappropriate behaviour.

64 Ms Marshall deposed that during the meeting, the applicant failed to comprehend what she was putting to him regarding how he may have better dealt with certain situations subject to complaint.

65 Ms Marshall stated the applicant could not appreciate or understand why it was clearly inappropriate for him to talk to resident clients about their sexual relationships and other personal matters.

66 It was Ms Marshall's evidence that neither Ms Waugh, Ms Mathews nor she, herself, had considered the applicant's responses warranted termination of employment. Rather, Ms Mathews, Ms Waugh and herself had agreed that the applicant should be given a final written warning.

67 Ms Marshall stated when she and Ms Waugh informed the applicant that his conduct warranted a final written warning, the applicant responded by stating:

"Stuff it, I resign."

Ms Waugh asked the applicant:

"Are you doing that now Tom?"

The applicant replied:

"Yes, you will have it in writing tomorrow. I am going home and not doing my shift."

68 Ms Marshall deposed that she and Ms Waugh subsequently phoned Ms Mathews who advised that the respondent had accepted the applicant's resignation. Ms Marshall stated Ms Mathews had instructed Ms Waugh to inform the applicant and at approximately 4.50pm, Ms Waugh informed the applicant by leaving a message on his mobile telephone to return her call.

69 Ms Marshall deposed Ms Waugh later informed the applicant that the respondent had accepted the applicant's verbal resignation.

70 Ms Marshall denied the applicant's contention that she had a vendetta against him. She also denied calling the applicant a whinger.

Ms Patricia Waugh

71 Ms Waugh deposed that at the time of the applicant's interview on 24 February 2005, she was the Acting Hunter Regional Manager for the respondent.

72 Ms Waugh confirmed the respondent had received three written complaints against the applicant and, that he had been advised he could bring a support person to the 24 February 2005 meeting, arranged to discuss the complaints.

73 The applicant seemed unwilling during the interview to accept the significance of the complaints raised, including the issues concerning the complaint involving a client resident with an acute urinary tract infection.

74 When she and Ms Marshall advised the applicant there had been a number of performance related issues subject to the complaints made against him in the past, the applicant replied, "bring it on."

75 The major complaints concerned the applicant's persistent failure to follow the respondent's directives, policies and procedures and, the use of inappropriate language. It was Ms Waugh's evidence that the applicant became quite exasperated when these matters were raised with him.

76 Ms Waugh stated that following the interview, the applicant was informed that he would be placed on a final written warning. The applicant subsequently asked:

" What am I getting the final warning for?"

Ms Marshall picked up the applicant's file and replied:

"Tom, that is what we have been discussing for the past hour."

The applicant then said:

"Stuff it, I resign ... you will have it in writing tomorrow. I'm going home, not doing my shift."

77 The exchange with the applicant was subsequently reported by Ms Marshall to Ms Mathews who later advised that the respondent had accepted the applicant's resignation.

78 Ms Waugh also deposed that shortly after the meeting, the applicant had phoned the receptionist and advised her that he had left abruptly and was going to get a doctor's certificate to cover the rest of his shift and week.

79 Ms Waugh was instructed by Ms Mathews to contact the applicant and advise him that the respondent had accepted his resignation. A message was left at approximately 4.50pm for the applicant to contact her.

80 The applicant later phoned Ms Waugh at approximately 7.00pm when she informed him that his verbal resignation had been accepted, effective immediately.

81 In cross examination, Ms Waugh confirmed that the matters subject to complaint did not warrant termination of employment but rather, a final written warning. She also confirmed that throughout the interview process the applicant did not understand the gravity of complaints.

SUBMISSIONS

The applicant

82 Mr Lewis submitted the applicant was constructively dismissed.

83 The respondent had allowed the interview on 24 February 2005 to go beyond the three complaints and allegations first put to the applicant and transgress past allegations that had been previously dealt with under the respondent's counselling and disciplinary policy.

84 The applicant was both anxious and highly stressed during the interview on 24 February 2005 and felt both threatened and intimidated.

85 The applicant stated "I will resign" was a spur of the moment comment. The applicant had no advantage in resigning his position. He had no job to go to and at the time of hearing, he remained unemployed.

86 Given the way in which the meeting was convened and conducted, the respondent should have taken the applicant's mental and emotional circumstances into account before accepting his purported resignation.

87 The respondent was under an obligation to clarify the applicant's verbal resignation to establish whether or not the "resignation" was really intended: Minato v Palmer Corporation Ltd IRCA [Murphy JR] 63 IR 357.

88 The respondent's Policy and Procedures Manual states under Procedure 2.5.1:

"Staff members wishing to resign are required to furnish the Department Manager with written notice of the intention to resign."

The respondent

89 The respondent submitted that at all times it had vigorously defended the matter on the grounds that at no time was the applicant dismissed at the initiative of the employer. There was no constructive dismissal.

90 The respondent relied on the general principles adopted in Allison v Bega Valley Council [1995] NSWIRComm 175 concerning the termination of the contract of employment at the initiative of the employer and employee.

91 On the evidence, the respondent submits the applicant terminated his own employment and there is no evidence to support a conclusion that the applicant's decision to "resign" was a spur of the moment decision.

92 The respondent had applied procedural fairness to the applicant and had afforded him an opportunity to have a support person present at the interview on 24 February 2005.

93 The decision to issue a final written warning was made after a full and careful consideration of the applicant's response to the allegations put to him.

94 Both Ms Waugh and Ms Marshall were adamant in cross-examination that the applicant stated, "I resign."

95 There was no evidence the "resignation" was a spur of the moment decision and it occurred without any provocation on the respondent's part.

96 Mr Amos sought to rely upon a decision of Sams DP in Giannone and the Australian Workers' Union, Greater New South Wales Branch [2003] NSWIR Comm 418, where his Honour considered the principles of constructive dismissal and concluded the applicant resigned of her own free will, without pressure or coercion.

Consideration

97 At the outset, the case of Giannone can be distinguished from the present matter on the grounds that the applicant in that case resigned her employment and subsequently submitted a letter confirming her oral resignation.

98 On the evidence before the Commission, it is clear the applicant in this matter was not quite the model employee and, on balance, the respondent was justified in placing the applicant on a final written warning.

99 I am satisfied and I find on the evidence, and indeed it was largely common ground, that there was a significant degree of conflict in the workplace between the applicant and management over a range of performance related issues.

100 It is also clear from the evidence in this matter that the applicant failed to comprehend the gravity of the issues raised and complained of from time to time during the course of his employment with the respondent. This was also evident during examination in chief by Mr Lewis and cross examination by Mr Amos.

101 Having reviewed all the evidence and submissions in this matter, I am able to conclude that the applicant was not aware that a number of serious allegations would be put to him at the meeting on 24 February 2005 and he was in error to decline the opportunity to have a support person present.

102 During the course of the hearing, it was also evident that the applicant was agitated and emotionally upset that the respondent had referred to a number of family care related issues related to his children during the meeting on 24 February 2005. The applicant believed these issues had been previously dealt with and accordingly, it was unfair for the respondent to raise them once more in the context of the meeting on 24 February.

103 On the evidence, I believe the applicant felt 'trapped' during the meeting on 24 February 2005 and upon hearing that he was to be placed on a final written warning, for reasons that he himself could not fully comprehend at the time, nor in my view during cross examination, he uttered the words, " I will resign..." in the heat of the moment, in order to buy some time and further consider the options open to him.

104 Having considered all the evidence and submissions, I have formed the view that the applicant stated the words "I will resign". He was not coerced or tricked into uttering this statement. Rather, it was the result of his then existing distressed state of mind. It was manifestly clear on the evidence that the applicant was in an extremely emotionally charged state during the meeting.

105 It is also clear on the evidence that the applicant's 'resignation' was not immediately accepted by the respondent's representatives - and he was not formally advised of its acceptance until approximately 7.00 pm when he spoke to Ms Waugh.

106 It is also clear on the evidence that shortly after the applicant indicated his intention to resign, he attended the doctor to obtain a certificate for the balance of the day and a few days subsequent. The applicant advised the receptionist, according to the evidence, of his intention to visit the doctor, as he was sick.

107 This case throws up a not infrequent issue arising in proceedings of this kind, that being whether the applicant truly resigned voluntarily and of his own free will or, in the alternative, whether he was terminated by the respondent and dismissed constructively.

108 In Cherry v Allied Express Transport [1997] 73 IR 305, Peterson J considered the applicable law dealing with special circumstances in which resignations are uttered. At 309 his Honour states:

The authorities to which I was taken suggest that where an employee is thought by an employer to have resigned in the course of a heated exchange, but by the use of ambiguous language, the employer who accepts words seemingly of resignation faces the risk of having a contrary finding of fact made. In Minato v Palmer Corporation Ltd (1995) 63 IR 357 Murphy JR extracted and applied the principle adopted in Britain where seemingly unambiguous words of termination are used. The judicial registrar's decision reads (at 361-362):

"The central issue here, as far as the respondent is concerned, is whether the applicant had resigned.

...

The legal. position is set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:

'In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view Tribunals should not be astute to find otherwise...

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.'

Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (“being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [19831 IRLR 313. These we refer to as "special circumstances". Where “special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the " special circumstances" the intention to resign was not the correct interpretation when the facts are judged objectively.'

109 In the light of Kwik-Fit, it is not so much a consideration of whether uttering the words, "I will resign" or, for that matter, "I resign," but rather, the characterisation of the conduct of the applicant as a whole during and immediately after the interview. In this respect, whether one is considering if the words or conduct evince an intention of an employee to repudiate the contract of employment, the principles have equal application.

110 In my opinion, and in the words of Wood J in Kwik-Fit, there were special circumstances arising at the time the applicant uttered, "I will resign". The words used by the applicant were undoubtedly used in a state of mental and emotional confusion and, in the heat of the moment.

111 Given that the applicant notified the receptionist shortly after the interview that he was sick and visited a doctor shortly thereafter, it is clear in my opinion that the applicant did not truly wish to resign at all. The applicant has recanted in relation to his earlier intentions spurred by the heat of the moment.

112 Consistent with the respondent's policy with respect to resignation, the respondent, through Ms Waugh and Ms Marshall should clearly have been on notice that further inquiry upon the applicant would have revealed his true intentions. Compliance with the policy concerning the requirement to give written notice of resignation is mandatory.

113 In the event the applicant had followed up the verbal 'resignation' in writing the next day as foreshadowed on 24 February 2005, the Commission may well have reached a different conclusion.

114 Accordingly, in all the circumstances of the case, I consider the applicant did not resign but rather, was dismissed by the respondent at approximately 7.00pm on 24 February 2005. There was, in my opinion, no unequivocal repudiation of the contract of employment on the part of the applicant.

115 In arbitration the applicant did not seek reinstatement. I find neither reinstatement nor re-employment to be practical on the grounds that there has been an irretrievable breakdown in the employment relationship as a result of the applicant's dismissal.

116 In assessing any compensation payable, I have considered the applicant's efforts to obtain suitable alternative employment and the fact that he remained unemployed at the time of hearing. I have also taken into consideration my view that on the evidence, the applicant would not have continued in the employment of the respondent indefinitely.

117 For the reasons outlined, I find the dismissal of the applicant was harsh, satisfying the criteria of harsh, unreasonable or unjust set out in section 84(1) of the Act.

118 Accordingly, I make the following order.

ORDERS

1) The respondent, New Horizons Enterprises Limited, shall pay to the applicant an amount of $4,500.00.

2) The respondent shall pay the amount specified in order 1) within twenty-one days of today.

3) This order shall take effect on and from today, 8 December 2005.

J D Stanton

Commissioner

LAST UPDATED: 08/12/2005