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Ryan and Anijes Pty Ltd t/as Anita Villa. [2005] NSWIRComm 1231 (2 February 2006)

Last Updated: 3 February 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Ryan and Anijes Pty Ltd t/as Anita Villa. [2005] NSWIRComm 1231

FILE NUMBER(S): 2115

HEARING DATE(S): 11/11/2005

DECISION DATE: 02/02/2006

PARTIES:

APPLICANT

Selina Ryan

RESPONDENT

Anijes Pty Ltd t/as Anita Villa

JUDGMENT OF: Murphy C

LEGAL REPRESENTATIVES

APPLICANT

Ms V Dimond, Solicitor, of Vicki Dimond & Co.

RESPONDENT

Mr S Borrow, Solicitor of Leanna Street & Associates

CASES CITED: Allison Vs. Bega Valley Council (1995) 63IR68

Western Suburbs Ambulance Committee Vs Tipping (1957) 56AR273

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 37 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MURPHY C

Thursday 2 February, 2006.

Matter No IRC 2115 of 2005

SELINA RYAN AND ANIJES PTY LTD T/AS ANITA VILLA.

Application by Selina Ryan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2006] NSWIRComm 1231

1 Ms Selina Ryan was employed as an Assistant in Nursing at the Anita Villa Nursing Home at Katoomba from the 12th March, 2002 until the cessation of her duties on the 4th April, 2005.

2 The matter came before the Commission on two occasions for conciliation and for hearing on a single day on the 11th November, 2005.

3 The applicant was represented by Ms V Dimond, Solicitor, whilst the respondent was represented by Mr S Borrow, Solicitor of Leanna Street & Associates.

4 The applicant gave evidence on her own behalf and called a former employee, Mr Barry Wadeley, also in support of some limited aspects of the case. The respondent called Ms Jocelyn Hofman, Registered Nurse in Charge of the Villa, on the crucial evening of 3rd 'April, 2005. The respondent also called Ms Diane Hudson, the Deputy Director of Nursing, to give evidence along with Ms Cheryl Edwards, the Director of Nursing at the Anita Village.

5 The Commission reserved its decision following the final submissions also given on the day of hearing on the 11th November.

BACKGROUND

6 The applicant's employment as Assistant in Nursing with the respondent over some three years came to an end on the 4th April, following an incident the evening before, the 3rd April, involving the after hours use by her of the personal computer of a resident by the name of Andrew. That incident involved a threat from the Senior Registered Nurse on duty that evening, Ms Hofman, to call the police unless the applicant cease use of the computer of the resident patient and leave the home.

7 Incensed and upset by that threat and her treatment by Ms Hofman the evening before, the applicant, on her day off the next day, approached Ms Hudson, who also gave evidence, announcing that she wished to resign, and whilst the precise exchanges between the two women were in contest, suffice it to say at this stage that the applicant's case relied upon her feelings of humiliation at the hands of the respondent in rudely and unjustifiably expelling her from the premises of the evening before through Ms Hofman, and at the order of Ms Edwards, the Director of Nursing.

8 Ms Dimond, on behalf of the applicant, therefore pursued the case of constructive dismissal on behalf of Ms Ryan and asked the Commission to have regard to the test in Bega Valley Council Vs Allison to conclude that the applicant's resignation was likewise instigated or initiated by the actions of the respondent the evening before, and in the process submitted that there was little or no reasonable choice for the applicant but to resign. Too much of the details of conversation was contested between the parties to give much more than that summary at this stage.

9 The applicant's case is best summed up by Ms Dimond in her final submissions when she stated that the applicant had reacted to a situation where she felt that she had no other choice but to resign. Ms Dimond also maintained that the applicant would have remained within the organisation to work a further two weeks notice, but that the respondent had insisted that she leave immediately. That point was in contest in the evidence, but Ms Dimond insisted that that offer to work two weeks notice was clearly rejected by the respondent, along with the applicant's attempt to speak to the Director of Nursing, Ms Edwards, who both refused to entertain any idea for her remaining on the premises.

10 Ms Dimond submitted that the latter aspect was significant, and that the applicant's evidence should be accepted that the respondent, through Ms Edwards, had answered the applicant's approach to her shortly after submitting her resignation, to speak to her about the matter with a wave of her hand, saying that she did not want to talk to the applicant about the matter. Ms Dimond also asked the Commission to take into account that the applicant did not wish to speak to both Ms Edwards and Ms Hudson together, as suggested by Ms Hudson at the time of submitting her resignation, because she felt it would be too intimidating.

11 Ms Dimond finally asked the Commission to take into account the hardship wrought upon the applicant by her dismissal and the difficulties of paying her day to day living expenses, and asked the Commission to take into account her fairly unsuccessful endeavours at job opportunities since dismissal, which she believes the evidence showed had been affected by any reference provided by the Anita Villa.

12 Ms Dimond asked the Commission to take into account the applicant's evidence, that she was using the computer of the resident Andrew, with his permission, and that the situation was similar to that in Alison's case, where there was a threat to call the police, or that she would be escorted from the building and might be arrested, in a place where she had worked for three years, and where the evidence showed that she had been a dedicated worker, devoted to the welfare of the residents.

13 The respondent's case, as summed up by Mr Borrow amongst other things, relied upon by the body of case law in respect of constructive dismissal and to that end, Mr Borrow provided the Commission with an outline of the relevant case law for the Commission's assistance. He believed that the primary issue for determination was that jurisdictional question and he believed that the Commission should find that there was incontrovertible evidence that she had resigned and was not terminated effectively by the employer. He submitted that there was a narrow gateway which would allow the Commission to entertain a claim for constructive dismissal, where employees must demonstrate that such constructive dismissal took place.

14 He summed up the case law on the basis that there were three basic sources for constructive dismissal, the first of which he believed was a repudiatory breach of contract of employment which involved the conduct of the employer striking at the route of the employment contractor, so that a fundamental term or condition of the employment contract had been unilaterally breached. He reminded the Commission that in those circumstances the onus was borne by the applicant in accordance with Pondsgrove Case for demonstrating there was a constructive dismissal.

15 He referred to a second type where an employee is placed under pressure to resign, usually accompanied by a threat of some type, as exemplified in the Alison Vs Bega Valley case. He sought to distinguish that case on the basis that in the Alison case, the employee had been told that he would be reported to the police if he did not resign, and that he would be dismissed in any event. In that case, the thought of damages was hanging over the employee and he had no choice but to accept an impossible proposition. This had to be compared to Ms Ryan's case, where she was confronted with a requirement to leave the premises the evening before accompanied by a threat, that if she did not leave, the police would be called, and even if the Commission thought that such action was a little heavy handed, it still did not constitute a repudiation of the employment contract and was not accompanied by a threat that if she did not leave immediately, her employment would be terminated.

16 Further in respect of the caselaw on constructive dismissal, a further matter raised by Mr Borrow was what he described as the ambiguous resignation which might occur in circumstances where an employee tenders their resignation in the heat of the moment, where they might be judged as acting irrationally. In these circumstances, it is clear from the case law that ambiguous resignations emerge in circumstances which really represent an exception to the general proposition that termination once given, cannot be unilaterally withdrawn.

17 Mr Borrow, in this vein, drew the Commission's attention to the area of his cross-examination where he attempted to invite Ms Ryan to point out where she had made any attempt to withdraw the resignation that she had offered on Monday morning, the 4th April. The applicant likewise, was tested as to whether there was any threat or invitation to resign from the employer, and despite some equivocation by the applicant, her answer was finally given that there was no verbal threat of that nature given to her. Neither was there evidence of any inducement which would have reasonably led her to believe that she had no choice but to resign, he pointed out.

18 Mr Borrow put to the Commission that it was for the Commission to decide whether the conduct complained of by the applicant really did represent a repudiation to the contract and alluded to the evidence of Ms Jocelyn Hofman, who he said the evidence showed was a convincing witness, and whose evidence showed that the behaviour of the applicant Ms Ryan was such as to induce in Ms Hofman a sense of fear, which was the reason she took the unusual step of phoning the Director of Nursing. The evidence showed that the obvious distress conveyed by Ms Hofman over the telephone to Ms Edwards, made it clear to Ms Edwards, combined with the fact that the applicant had no right to be in attendance at the Village well after hours, that she was justified in threatening to call the police if Ms Ryan did not leave.

19 Mr Borrow sought to emphasise to the Commission the fact that the applicant had attended the next day, the 4th April, whilst she was on leave, and not required to be in attendance, and after she had the opportunity to reflect on matters overnight.

20 There was no approach to the Director of Nursing or the Deputy Director of Nursing, expressing any regret at what had happened the evening before and to express fault on her part where she failed to obtain appropriate consent from someone in a senior position before overstaying her time. In lieu of that, she arrived on the 4th April, the day afterwards, and before the Deputy Director of Nursing, Ms Hudson, had any opportunity to discuss matters with her, she immediately tended her resignation. Neither did she in the subsequent days ring to attempt to withdraw her resignation, saying that she regretted doing so, and then expressing her desire to come and speak.

21 He again stressed that rather than to address the issues of the evening before, or at least sit down and participate in the counselling session and unravel the relationships effected thereby, she elected not to do that and the Commission would agree that the applicant has a very limited opportunity for constructive dismissal in this circumstance.

22 The respondent submitted through Mr Borrow that the applicant resigned, admittedly under circumstances which were covered by the events the evening before, but not sufficient enough to allow her to walk away and not avail herself the opportunity of restoring a relationship. He pointed out that despite her difficulties in procuring other employment, at no stage did Ms Ryan seek reinstatement as a remedy.

23 Finally, Mr Borrow submitted that the Commission should take into account the evidence which showed the applicant as having a strong personality and observations being made by a whole range of persons in the Anita Village, which demonstrates that this was simply a case of personality affecting the events of the evening of the 3rd April, leading to her resignation the next day, without provocation from the respondent.

The Applicant's evidence

24 The applicant, apart from giving assurances to Mr Borrow in cross-examination of her dedication to her professional obligations, putting the interests of the patient first, emphasised more specifically in relation to the incident of the 3rd April, that Andrew, the resident involved with the use of the computer, was well aware that she was in the room and "he absolutely loved it".

25 She also gave evidence as to her knowledge of Andrew's condition which she described as involving severe brain damage and that he was really dependent, and in response to questions from Mr Borrow as to his cognitive of functioning, she maintained "he was definitely aware and knew exactly what was going on and there was no taking advantage of him, but later acknowledging that his cognitive ability had been diminished somewhat.

26 As to the details of her use of Andrew's computer on the 3rd April, she gave evidence that she finished her shift at 2.30pm in the afternoon, but stayed back to finish an assignment. She claimed to have used Andrew's computer initially in his room, but moved to the office, which in effect, involved her sitting in the corridor. The Nurses on duty at the time, she claimed told her that she could continue to use Andrew's computer if she wished, but that it might be a bit quieter in the corridor, which was the upstairs area of the nurses station. She claimed "they set it up for me and they were really helpful and they said Selina, we've set it up for you" and when I went to use it, it didn't work at all, something was severely wrong with it and so I went in to Andrew and asked him again and when I left to go to my singing lesson, when I got back, I actually asked him, I said "You know, is it okay and he's like of course, like you know, he loved it". She gave evidence that upon commencing to use the computer set up by other staff members in the corridor, "I tried it and it just wouldn't work, something was wrong with it".

27 She claimed that when she returned from her singing lesson at 8pm, Andrew was awake and she had asked him upon her return his permission to continue to use his computer, although she did not indicate how late she'd been using the computer as she did not know at that stage how long it would be. Specifically, she claimed "but I did have his permission and I did lean over and go, you know, are you right, like, talking to him and he's like, I'm still here and he's like, you're right, like, he voiced it, so that, and the resident's permission is their permission to use". At the suggestion from Mr Borrow that there was a total of five and a half hours use of Andrew's computer, the applicant replied "I'm not sure, I didn't add it up, yes". She further claimed "yes, the registered nurses did know that I was there and ...." and went on to say "yes, the ladies that initially wanted to set the computer up that were on duty gave me permission. The next I rang, which was Val, she asked the AIN to order me dinner and ........ This was just before 5pm". Later in her evidence she suggested "I have Andrew's permission, I have several RN's permission" and later repeated that "but I did have authority".

28 In answer to the specific question as to whether she waved her right hand in a dismissive manner to Ms Hofman, the registered nurse on night duty, and also said angrily "I don't have time for this" and continued to ignore her, the applicant answered, "No, that's not true. I explained .....". She agreed she'd said "I've been working here for three years and I have Andrew's permission" although claiming that it was not in the context suggested.

29 She denied refusing to leave the computer to come outside to discuss the issue with Ms Hofman.

30 Significantly, the applicant went on to claim that "I heard one of the ladies, the AIN's tell Jocelyn earlier on in the night that I was in the room. Between like, it was just after nine at some stage, in the corridor, saying that it was Selina that was in there".

31 The applicant claimed both in her statement and in cross-examination that Ms Hofman had used the statement to her "I've called Cheryl and she told me to call the police". She denied that Ms Hofman had said to her that "I called Cheryl and Cheryl said that you are to leave now. If you are still here in ten minutes, I will call the police". She also denied that she had said to Ms Hofman words to the effect "you disgust me. RNs like you who are power trippers, you are rude. Come on, go ahead, call the police. I have been working here for three years and what disgusts me is people like you".

32 The applicant claimed that she had said to Ms Hofman "no, I asked her why, what was going on. Why would you want to call the police, and she came up several times, roughly about four times and just kept saying, police, police, and I felt that I was instructed from Cheryl, obviously as she said the first time, but the first time she came in, she asked me why I was there, l explained why I was there and she said, okay, but you have to leave after that. And because I am very very computer illiterate is why I took so long on the computer as well". She denied saying also to Ms Hofman "I have permission to be here, so get lost". There were several other aspects put to her as to what Ms Hofman contended was said to her, that the applicant also denied, although acknowledging that she was upset, she did not yell like as claimed in the statement of Ms Hofman and she did not abuse Ms Hofman or insult her, although being really confused and upset about the whole thing.

33 Separately, the applicant claimed in respect of her exchanges with Ms Hofman, "she gave me permission the first time and came back in fifteen minutes and stood at the door and said, "I've rung Cheryl and she told me to call the police, and then several times after that she came up and said, you know, what are you doing, something like the police are coming, just all different things about the police coming, and it was just really bizarre and I found it quite odd".

34 She claimed to have been followed down the stairs by Ms Hofman upon leaving, and she was quite upset by that experience.

35 The applicant gave evidence in cross-examination that she had done nothing to warrant the police being called or being followed down the stairs in a fashion as if she was a criminal, and with Ms Hofman standing over her with her arms folded, watching her sign off, especially as she had gone above and beyond the duty as an Assistant in Nursing in her three years with the organisation.

36 As part of the respondent's case against the applicant; that she manifested several outburst against other staff members; the applicant was taken to previous incidents involving other staff members, one of which was of a formal complaint lodged by one nurse Quinlivin. The applicant claimed that that procedure was adopted by Ms Quinlivin only because she knew that the applicant herself was making a formal complaint about her behaviour.

37 In respect of attachment B to the applicant's statement, which was a complaint by Michelle Gallagher dated the 9th February, which described the applicant's behaviour as very rude in front of residents and another nurse, the applicant claimed that that incident with Sharon and Michelle involved with them trying to save their own necks. This was when they had left a resident in the shower chair with his genitalia exposed and not strapped to the chair properly.

38 She was next taken to attachment E of her statement, which was a diary entry from Diane Hudson, the Assistant Director of Nursing, which read: "she was very angry". The applicant was alleged to have said at the time, "you and Cheryl can do what you have to do, but I'm not attending". This was in respect of a formal counselling session. Ms Ryan gave evidence that she was too upset at the time about the whole incident to attend the counselling session and whilst acknowledging that she had called Sharon a bitch, and did raise her voice for leaving her the resident exposed in the shower, she had made a formal complaint about what she regarded as a pretty big incident.

39 In respect of Attachment F of the applicant's statement which involved an "improvement log" entry by one J Cameron, said to arise from the abuse of work colleagues dated the 4th May, 2004, the applicant gave evidence that the incident involved kitchen staff some two years previously. She testified that it had been an on-going battle, and she had an incident with the chef when she had asked him for several trays of food at lunchtime and he had refused, stating that he wanted her to go to the RN for permission. She denied any telephone abuse over the incident, which she regarded as a blatant lie.

40 She gave evidence that whilst she would stick up for herself and had a strong personality, the incidents had been blown out of proportion to make her look belligerent and out of control and an angry person. On the other hand, at one stage Cheryl Edwards, the Director of Nursing had come up to her and complimented her, stating that she was very impressed with her performance.

41 As to these combined incidents put to her by Mr Borrow, the applicant posed the question in return, that if she had been so strong in her reactions, why was she still working there and why wasn't she ever counselled for this abusive manner?

42 Over the incident with the chef Cameron, she claimed that she did attend the office with Cheryl Edwards, who she claimed ended up thanking her for coming in, and that "she was her ears and eyes", as she needed to know what was going on in the organisation after the applicant had explained that there had been an altercation in the kitchen.

43 The applicant was finally taken to the incidents on the day of her resignation, stating earlier in her cross-examination on this issue, that the purpose of going to work on that day was, "to discuss the incident" - claiming to be afraid and feeling intimidated, but needing to discuss the situation. However, she conceded that she did not think to ring to make an appointment for the purpose.

44 When the applicant arrived to speak to Diane Hudson, the Deputy Director of Nursing, she was informed by Ms Hudson that the DON Cheryl Edwards had been calling her by telephone, and had picked up the phone to contact Ms Edwards to have her attend in the office there and then.

45 It was apparently at that point that the applicant asked Ms Hudson not to have Ms Edwards attend the office, and her reason being that she did not think it appropriate for her to be in the room with both Diane Hudson and Cheryl Edwards by herself. She believed the normal protocol in such an event would be to have a witness. She gave evidence "and I was not going to go in a room with the two ladies that had yelled at previous people before. It wasn't going to happen. I was too scared and intimidated".

46 This evidence was important as to why the applicant submitted her resignation to Ms Hudson without allowing Ms Edwards some input into the situation on the morning of her resignation. She repeated that she believed that it was not appropriate for her to be present with the two managers of the centre at once in the office, going on to clarify "yes, it was everything here from the police to Diane's tone and it was obvious, the whole situation was obvious".

47 Significantly, in answer to the question "you thought she was going to call you in to sack you?" the applicant answered "yes, of course. In the tone that Diane...."

48 In answer to the significant question as to whether Diane at any stage had voiced a desire for the applicant's resignation or words to that effect, the applicant answered "by the tones that she used...." and continued "....the abuse and harassment the night before, yes, I definitely got the ...... impression". When pressed on that point, she acknowledged that the words were not used by Ms Hudson, but relied upon an overall feeling of intimidation and harassment.

49 As a separate issue relied upon by the applicant, the applicant repeated in cross-examination that when she had asked Ms Hudson if she wanted her to stay for the two weeks notice period, Ms Hudson had said no and that under the circumstances "will accept your resignation as of now". This issue was relied upon the applicant as part of the justification for her claim of constructive dismissal. She repeated again that there was no necessity for Ms Hudson to use words to the effect, expressing a desire for her to resign as she felt intimidated without that direct suggestion.

50 The following further exchange was fairly significant:

Mr Borrow: Did Diane ask you to resign?

Ms Ryan: I feel that they did, yes.

Q: Did she use words....

A: I feel that....

Q. inviting you to resign?

A. It was the way I was, my head was on the chopping block and Selina was getting cleared out.

Q. Look, you are being deliberately evasive. I'm asking you a very very clear question, I 've framed it a number of different ways. Did Diane ask you resign?

A. Not in words, she didn't. No.

51 On further questioning, the applicant reluctantly acknowledged that no-one had said that she should resign or they would terminate her.

52 The best interpretation of the applicant's reluctance to concede this issue was on the basis that she continually insisted that it was not the words used to her, but the whole situation that she relied upon to believe that she should resign, stating on several occasions "they didn't have to".

53 She also relied upon the fact of Ms Hofman coming up on several occasions the evening before, to state that the police were being called, although acknowledging that at no stage did Ms Hofman on the evening before, suggest either that she would be terminated.

54 In answer to the question from Mr Borrow:

"No. You say that the reason you offered your resignation was because you expected that you would be terminated anyway, or at least Cheryl, you thought Cheryl was going to sack you. That was your state of mind at the time, is that your evidence?"

Answer: Yes.

55 The applicant returned to the theme that her claim of constructive dismissal was reinforced by the insistence of Ms Hudson, the Assistant Director of Nursing on the morning of the 4th April, that she did not wish for her to work the two weeks notice period which she understood from previous employment, she should offer to work. She claimed that "she denied it flat out with a flat out no, under the circumstances we will accept your resignation straight away....."

56 Whilst acknowledging that she was a casual employee, the applicant gave evidence that she believed that she was still required to give a notice as a matter of courtesy, as opposed to a legal requirement.

57 An important issue raised by Mr Borrow in cross-examination was that a proposition put to her that whilst she contended she resigned because of apprehension of fear and intimidation at confronting the Director of Nursing and the Deputy together in the same room on the morning of her resignation, that there was some inconsistency in the fact that she also contended that she intended to discuss the situation and claimed Ms Edwards' brushed off her belated approach upstairs.

58 The applicant admitted that the Director of Nursing, Ms Hudson had asked her not to proceed upstairs to say good-bye to residents and staff as she considered it inappropriate, but she proceeded to do so in any event. She also agreed that the Director of Nursing followed her up and observed her interaction with the residents. In the process, she also conceded the observation from Mr Borrow that she was off duty at the time. However, the applicant conceded that the manner in which the Director of Nursing had followed her around "like I was a criminal or something", made it obvious to her that they did not want her there.

59 The applicant testified that she approached Ms Cheryl Edwards at this stage, and attempted to explain about her resignation, given that she felt more safe in that situation than a room with both Ms Edwards and Ms Hudson as suggested by Ms Hudson originally. She contended that Ms Edwards had said to her that she did not want to hear anything, and requested her to simply leave the building. She claimed to be intimidated whilst upstairs saying good-bye to residents and staff. She denied being angry and agitated in a manner which would justify the respondent's claimed apprehension of problems with her going upstairs to say good-bye to people.

60 The applicant confirmed paragraph 47 of her statement that she had said to Ms Edwards, after being told by Ms Edwards that she didn't want to hear anything from her and to simply leave the building, words to the effect "don't keep following me, if you do this to me I will see about an unfair dismissal claim". When that incident was taken up in cross-examination, the applicant denied having any comprehensive knowledge of unfair dismissal laws but that her life experience taught her that harassment and bullying from an employer to the point where the employee leaves, would have to amount to an unfair dismissal.

61 The applicant said the reason she did not attempt to withdraw her resignation at any time was because she had been quite clearly told that she was not wanted and that she was told twice to leave the building. She believed it to be a waste of time and her experience of the night before convinced her, in her subjective opinion, that requesting reinstatement was useless.

62 In respect of the fact that the respondent, during conciliation, offered to re-employ her, she contended that it was purely a tactic.

63 Also on behalf of the applicant, Mr Wadeley, a former employee, gave evidence, beginning with an acknowledgement that he did not observe any of the events which took place on the 3rd April, or the 4th April. His testimony was relatively unimportant.

The Respondent's Evidence:

64 Ms Jocelyn Hofman provided a statement to the Commission in exhibit 4, in which she contended that it was not until approximately 10pm on Sunday the 3rd April that she noticed someone using the resident Andrew's computer in the dark, and the only clue to this was that she saw a light flickering from the computer, and the dark shadow of a person in silhouette on the lid of the computer screen. She proceeded downstairs and enquired of the staff on duty as to whether they knew who was involved and received the information that it was Ms Ryan. She contended that nothing was said to her half an hour earlier on the hand over report, as to Mr Ryan's presence.

65 She contended that she whispered softly to the applicant, so as not to wake Andrew, to come out of the room to speak to her. The applicant's response was to remain seated, but also waved her right hand in a dismissive manner and said angrily "I don't have time for this!" and continued to ignore Ms Hofman. Ms Hofman re-entered the room and approached Ms Ryan, asking what she was doing and whether or not she had the matron's authority to be there, at which point, the applicant angrily stated to Ms Hofman, "I've been here for three years and I have Andrew's permission!"

66 Unable to verify with Andrew who was asleep, she noted that Ms Ryan had point blank refused to leave the computer to come outside to discuss the matter, and she refused to answer the question as to whether she had the matron's authority.

67 Ms Hofman told the Commission that she did not know Ms Ryan, and being the only registered nurse at night in charge of the upstairs and downstairs wards, she did not believe she was in a position to ask anyone else on the floor for advice, so she telephoned the Director of Nursing, Ms Cheryl Edwards for advice. Ms Edwards directed her to tell Ms Ryan to leave the premises and if she refused to leave, she would call the police after ten minutes, which she did in company with two nurses, Stockley and Egbert, who accompanied her upstairs.

68 When given that advice, the applicant responded very angrily, "it disgusts me, RN's like you who are power trippers! you are rude! come on, come on, go ahead, call the police! I have been working here for three years and what disgusts me is people like you!" The applicant was challenging and aggressive and appeared not to have any regard to the possibility of disturbing residents.

69 Ms Hofman maintained that she remained calm so as not to inflame the situation, but was very concerned of her own safety with her knees trembling, fearing that Ms Ryan might punch her, and was shaking when she went downstairs to call the police. Before she did so, Ms Stockley asked her to hold off until she had a chance to speak to Ms Ryan, and after a few minutes Ms Ryan came downstairs. When she approached Ms Ryan, Ms Ryan said to her, "you are a power tripper! come on call the police!" Ms Ryan continued to talk loudly, angrily walking through the corridors and down the stairs and in front of other nurses said, "what are you looking at?" to which Ms Hofman replied, "I am waiting for you to leave so I can give my hand-over report", at which point Ms Ryan left the building.

70 In her cross-examination Ms Hofman informed the Commission of the hand-over procedure involving three registered nurses, which she described as quite detailed, but didn't advise of the presence of the applicant. She further testified under cross-examination that she imagined that the person using the computer, at first was Andrew's wife, until she questioned the nurses downstairs. She confirmed that she initiated the approach to Ms Ryan by whispering, because Andrew was asleep, and also confirmed the rest of her statement as to the aggressive reactions of the applicant, which included an initial response, "I don't have time for this" with a wave of her hand. In the process, Ms Ryan was not whispering, but talking angrily and among other things, claiming that she had Andrew's permission. She believed that the applicant should have calmly explained to her as a matter of courtesy, and her second trip to Ms Ryan involved a gap of some fifteen minutes, which involved her speaking to the other nurses downstairs.

71 Ms Hofman denied giving the applicant ten to fifteen minutes to finish at the initial approach and maintained that she was unsure of what to do, and that is why she rang Ms Cheryl Edwards for advice and received instructions to tell Ms Ryan that if she did not leave within ten minutes, the police would be called. She had requested two nurses to come upstairs to relay the message to Ms Ryan. She paid two visits to Ms Ryan and on a third occasion, allowed one of the other nurses to ask Ms Ryan to leave, which resulted in the applicant's departure.

72 Ms Hofman gave evidence that she had not encountered anything like that experience in all her years of nursing and that she was very nervous and shaking, whilst the applicant was aggressive and angry. She further testified that she did not understand why Ms Ryan was so aggressive towards her, which occurred even in the initial approach, when she whispered to Ms Ryan.

73 Ms Hofman gave evidence that in her opinion as a nurse, an employee should never ask a resident for such a favour, because that resident would feel obliged to fulfil that request because of the need to receive care. She believed the stance taken by her was justified in view of her responsibilities to the residents, and being the only registered nurse on duty for the whole of the building late at night. She did not believe that it was a situation that's involved Andrew's consent, but the authorisation needed to come from the Director of Nursing, Ms Edwards.

74 The next witness for the respondent was Ms Diane Hudson, the Deputy Director of Nursing.

75 Ms Hudson's affidavit to the Commission was marked exhibit 5 in these proceedings and in that statement, she'd stated that she had been informed by Ms Edwards on the morning of the 4th April of the incident of the evening before.

76 Her evidence was important as to what had actually occurred on the morning of the applicant's resignation on the 4th April. She contended that she was approached by the off-duty Ms Ryan whilst at the nurses station with a request to speak to her. She responded by indicating that Ms Cheryl Edwards had been trying to ring her and wanted to talk about what had happened the evening before. At that point, Ms Ryan appeared very agitated and replied, "No, I refuse to speak with Cheryl. I will only talk to you" . To this, Ms Hudson suggested that it was wiser to talk to both her and Ms Edwards to sort things out, but Ms Ryan was adamant that she would only talk to Ms Hudson. At this point, she asked the roster clerk to inform the DON that Ms Ryan had arrived and she allowed Ms Ryan to come into her office. The door remained open.

77 Ms Ryan informed her forthwith that she wanted to resign, to which Ms Hudson maintained she responded that it was not necessary and she just wanted to find out her version of what had happened the previous evening. At all times Ms Hudson maintained that she remained calm and non confrontational, but Ms Ryan repeated that she wanted to resign, so she had been told by Ms Hudson that her resignation would be accepted.

78 Ms Hudson maintained that at that point she took the roster folder to check the current shifts before asking Ms Ryan when she would like her last shift to be and received the response from Ms Ryan:

"I know I'm meant to give two weeks notice, but I really need it to be effective from today".

79 The applicant was informed by Ms Hudson that given that she was a casual employee, she could accept her resignation effective immediately, if that is what she wanted to do. She testified that Ms Ryan thanked her.

80 As the applicant was leaving the office, she told Ms Hudson that she was going upstairs to say good-bye to a few people, to which Ms Hudson responded that under the circumstances it was not appropriate to go upstairs to the wards. She testified on this point that normally when staff left, there was an afternoon tea to say farewell. However, where there was a resignation on the spot, there was no such opportunity to arrange a farewell. Her concern was also that Ms Ryan was agitated and angry, and felt that it was not appropriate for her to be going to ward areas whilst she was in that frame of mind.

81 At this point, she testified that Ms Ryan became threatening and aggressive and said, "I'll do whatever I want to do" and turned her back on Ms Hudson and went upstairs. Immediately thereafter, Ms Edwards came into the office and was informed by Ms Hudson of what had happened. Ms Edwards then proceeded upstairs.

82 Ms Hofman, under cross-examination, refuted that the applicant should have felt intimidated by her suggesting that both her and Ms Edwards be present to discuss the events of the evening before, as on most occasions where disciplinary problems arose, a support person of their choice is always allowed.

83 She confirmed her affidavit evidence, the applicant had actually asked if her resignation could be made effective immediately. She maintained that it was absolutely incorrect that she had stated to the applicant, the organisation preferred her finish on the spot. She reiterated that she had actually told the applicant that it was not necessary to resign, and that all that was necessary was for her to have a chat about what happened and receive her version of events the evening before, which to her information involved a conflict between Ms Jocelyn Hofman and Selina, with raised voices being used by Selina, and that it disrupted residents, and being late at night, she denied intending to dismiss the applicant. She reiterated that the only reason she stopped the applicant going to say good-bye to people was that she was upset and agitated, and that it was inappropriate in the circumstances, and given her duty of care towards the residents and staff, she was unaware of what might happened if Ms Ryan had proceeded upstairs, as she did. She repeated that the applicant had actually thanked her before leaving the office. It was only when told that it was not appropriate for her to proceed upstairs to say good-bye that her attitude changed and she became, what Ms Hudson described as upset and aggressive.

84 Ms Hudson testified that when the applicant appeared in front of her, she thought she was going to talk about the previous evening, but all that Ms Ryan wanted was to resign.

85 The next witness for the respondent was Ms Cheryl Edwards, the Director of Nursing.

86 She provided an affidavit marked exhibit 6 by way of evidence to the Commission, and in that statement, Ms Edwards primarily dealt with the issue of her involvement with the report by Ms Jocelyn Hofman of the 3rd April, the evening before the applicant's resignation. She contended that she had advised Ms Hofman by telephone, when contacted in respect of the apparent refusal of Ms Ryan to leave, by suggesting to Ms Hofman that Ms Ryan be politely asked to leave, but if she refused and persisted with her aggressive behaviour, then the police should be called. The report that Ms Hofman gave to Ms Edwards after the departure of Ms Ryan that evening at around 10.30, was that the applicant had been enraged and started yelling abuse at Ms Hofman, and that the commotion was so loud, that several residents in surrounding rooms and the resident Andrew had awoken. It was also reported to her that Ms Stockley had also been involved in negotiations for the removal of Ms Ryan, who finally left the building.

87 On the morning of the 4th April she testified that she had unsuccessfully tried three times to contact Ms Ryan by telephone in order to inform her that they needed to discuss the events of the evening before.

88 Ms Hudson, who had interviewed the applicant at around 10.30am that morning, spoke to Ms Edwards at around 11am and advised her that Ms Ryan, upon her arrival, had requested to resign without any suggestion from Ms Hudson that she do so. She also informed Ms Edwards that she had suggested to Ms Ryan that she would be better discussing the situation, but received the response that the applicant did not wish to meet the senior management to discuss it and that she had made up her mind to resign. Ms Edwards was also informed by Ms Hudson that the applicant was allowed to resign immediately upon her request.

89 On a separate issue relating to whether or not the applicant was constructively dismissed, Ms Hudson reported to Ms Edwards that the applicant had proceeded upstairs to say good-bye to residents and staff. At approximately thirty minutes after the resignation, Ms Edwards proceeded upstairs and approached the applicant to ask why she was still at the facility if she had resigned, at which point Ms Ryan became irritated and threatened to go for unfair dismissal.

90 Significant evidence was given by Ms Edwards that she reminded the applicant that she had resigned and that she, Ms Edwards, preferred to discuss the issues of the previous evening with her in the presence of an observer of her choice if she wished, to which Ms Ryan declined, saying, "I can do as I please, no-one can stop me". Ms Ryan's movements were monitored until she left the building that morning. At no time following her resignation did the applicant attempt to withdraw her resignation, and a later offer of reinstatement during conciliation was rejected by her.

91 Ms Edwards went on to talk about the applicant's performance over her three years and whilst saying that she was a clinically competent assistant in nursing, found her difficult to work with and that she'd found it hard to accept authority and directions from others invested with authority, and at times was wilful and unco-operative and difficult in communicating about issues. Ms Edwards maintained that even without these shortcomings, which were frequently the subject of informal counselling, she was never placed under any pressure to resign her employment. Her resignation prevented her from being held accountable for actions on the evening before. At no stage following her resignation did she indicate to Ms Edwards that she had been harassed by any staff member or that the decision to resign was forced upon her. The actions of the suggestion that the police might be called was in accordance with relevant policies and procedures of the establishment, and was a response to the threatening and aggressive behaviour and the refusal to co-operate with a reasonable request that she not be on the premises.

92 In her cross-examination Ms Edwards confirmed that she was happy with the work carried out by Ms Ryan at the Anita Villa, but later insisted that the applicant did have some outburst issues which were addressed at an informal level, one to one at a ward level. She also pointed out that on one issue the applicant had been invited to a disciplinary counselling meeting, but informed them she could not attend because she was too angry. She could not remember the precise date, but thought it was around January, 2005. This was consistent with attachment A to exhibit 1, the applicant's statement which contained a letter dated the 7th January from the Deputy Director of Nursing addressing that issue.

93 Ms Edwards defended her decision to advise Ms Hofman to deliver the applicant a threat to call the police if she did not leave, on the basis that the policy of the organisation required the police to be called on occasions, and that this had actually occurred in the past.

94 She denied that, if she had had a clearer head on the evening of the 3rd April, she would not have suggested calling the police, and she said so on the basis of the tone of urgency in the voice of Ms Hofman, who had never previously sounded so distressed and sounded "positively terrified. She was shaking, you could hear it in her voice and she....." She justified the action also on the basis that if a staff member was off duty, that staff member becomes a visitor and is forced to follow policy and procedures over any incident arising. She referred to the charter of resident's rights marked exhibit 7 in these proceedings.

95 Ms Edwards gave evidence as to the capacity of the resident, Andrew, who she described as having diminished cognitive ability and he may have made his decision, feeling that if he refused the applicant to use his computer, he may have his care diminished in some way and hence, according to the charter, such permission should not be asked. She never had a staff member use a resident's property in that way. She maintained that the respondent had no way of checking with Andrew whether he had agreed or supported it or not at all.

96 Ms Edwards did not deny that there was a possibility that permission had been obtained by Ms Ryan.

97 She reiterated that she had instructed the police to be called because Jocelyn Hofman had told her that Selena had been aggressive towards her, and that she was frightened and that it was night time and that Ms Ryan was aggressive and intimidating towards Ms Hofman.

98 Ms Edwards denied an occasion where the applicant had sought to speak up at a staff meeting and had been "canned" by the respondent on the basis that she believed that it was not a proper forum for that issue to be raised and not on the agenda, which had to be followed. She said that she would make time to speak with Ms Ryan on another occasion, but claimed that Ms Ryan would not come to speak to her.

99 Ms Edwards denied that the reason for her call to the applicant on the morning of the 4th April was to discuss the conclusion of the applicant's employment.

100 As to what occurred when Ms Edwards proceeded upstairs upon advice that the applicant was saying good-bye to various people, Ms Edwards claimed that the applicant did not approach her, but that she had approached Ms Ryan and said to her that we needed to talk about it. She further claimed to have said that she I didn't want Ms Ryan to resign, and that she was very happy to have an interview with her, that she could bring an observer and would try and sort things out. It was at this point that the applicant had said "that she could do what she pleased". She again denied that it was the applicant who approached her with a desire to speak. She then said to the applicant that if she had decided to resign, that it would be appropriate for her to leave the premises, she had already been told by the Deputy Director of Nursing that it was not appropriate to proceed upstairs to say goodbye to persons. She believed that it was inappropriate in view of the fact that the applicant's resignation meant that there was no opportunity to investigate the events of the evening before and they did not know what had happened. She again referred to the duty of care and responsibility under the Nursing Home Act, so as not to compromise security or the resident's rights. She referred to the offer made at conciliation to reinstate the applicant.

101 Towards the end of her testimony, Ms Edwards insisted that she had called to speak to the applicant about the words she used at the workplace and the way she approached other staff, claiming that other workers had difficulty communicating with Ms Ryan, and there were times when she had been aggressive in her conversation and using unsuitable language in the facility.

102 She confirmed that the applicant had been offered a permanent position at one stage of her employment, which was contingent upon her discussing matters, which she was invited on two occasions to do, but because the applicant was busy on the floor, the meetings had to be rescheduled.

103 Ms Edwards gave evidence at the end of her evidence that the resident Andrew "doesn't speak as we speak because he's had a tracheostomy, but he wrote a note, which he said, don't let her get into trouble". This occurred a day or two after the applicant's resignation.

CONSIDERATION

104 Whilst the primary matter for consideration was whether or not the applicant's resignation given to the Deputy Director of Nursing on the 4th April, when she paid a special visit to the home on her day off, was given in circumstances amounting to constructive dismissal and for more abundant caution, it was necessary to canvas the wider circumstances to consider this threshold issue.

105 Ms Ryan had to establish that there was no reasonable choice for her but to resign in circumstances created by the actions of the respondent, taking into account the often visited notion in Bega Valley Council Vs Allison, as to whether the initiative for that resignation arose from the actions of the respondent.

106 Ms Dimond believed that the question was a simple matter of whether or not the threat to call the police on the evening of the 3rd April translated by the resident nurse in charge on that evening, Ms Hofman, created such a state of mind in the applicant, given her three years of loyal service, that she felt too intimidated to attend a meeting as invited with both the Director of Nursing and the Deputy Director of Nursing. Accordingly, Ms Dimond argued that those circumstances, combined with the applicant's evidence, that it was the Deputy Director of Nursing, Ms Hudson, and not the applicant who instigated the fact that she was to leave immediately, (rather than working the two weeks notice) gave rise to the necessary Allison Vs Bega Valley Council test. Reinforcing this was the applicant's evidence that the Director of Nursing refused her overtures upstairs to discuss the matter. This has not been a case attracting the application of the Allison case principle, for reasons elucidated upon below, and after taking into account the distinctions offered by Mr Borrow.

107 The difficulty in Ms Dimond's proposition, apart from anything else, was that the applicant's evidence of her being forced to leave immediately, and her rejection by Ms Edwards in her efforts to discuss the matter upstairs after her dismissal, were directly contested by the contrary accounts of Ms Hudson and Ms Edwards.

108 Given that the applicant was not summarily dismissed, or dismissed for serious and wilful misconduct, the evidentiary onus resides with the applicant, particularly where there is a conflict between the parties. Tipping Vs Western Suburbs Ambulance Committee is authority for that general proposition.

109 There was firstly, the issue of the alleged consent from the resident Andrew. Curiously, in her affidavit at paragraph 32, she testified as to his consent being given the day before on 2nd April, yet in her oral evidence, added something not originally offered in evidence - claiming importantly that when finding that the outside computer did not work, as follows:

"and so I went in to Andrew and asked him again and when I left to go to my singing lesson, when I got back, I actually asked him, I said "you know, is it okay and he's like of course, like you know, he loved it".

That belated account was hard to accept as simply an oversight.

110 The Commission has been required to assess the credibility of all witnesses in view of those differences and when it came to a close examination of the transcript of matters such as the alleged consent given by other senior nursing staff to Ms Ryan, her account of that issue fell short of being acceptable. The applicant displayed a tendency to give what can be described as a somewhat sketchy and fractured accounts of what happened, including the alleged consent by senior staff or nursing staff generally.

111 Her account under cross-examination of what she made out to be the continual and irrational visits from Ms Hofman pressuring her to leave and repeatedly threatening "police" were plainly exaggerated in another area important to the Commission's consideration of that element of her case.

112 Whilst it was not clear as to whether her rather nervous dealing with these issues under cross-examination arose from the pressures of being challenged by Mr Borrow, and/or, for instance, some confusion as to who was generally aware of her presence in the room with the resident, Andrew, she failed to give convincing evidence of the consent to use a patient's computer by the registered nurse named by her as Val. The Commission was entitled to expect greater specifics from her on any conditions or the absence thereof on the use that might have been placed by Val, but more importantly a record of direct speech conversation on that occasion. Whilst this was no more than an indication of a tendency to exaggerate, there was no real explanation as to why the applicant did not seek to bring evidence from the persons such as Val, to back up her important claim that she had official consent to use the computer in Andrew's room. It has been noted that the applicant indicated some difficulty in having persons testify on her behalf, alleging that she had been advised that they have been threatened, but again there was a lack of convincing detail and/or direct speech. Ms Edwards did not deny that permission may have been granted and if the applicant had summonsed witnesses, it may not have become a question as to her credibility as it has.

113 In any event, even if some broad approval had been given by the registered nurse Val during the afternoon shift where Ms Ryan set up the computer to work on her assignment, the Commission must take note of the fact that there was some five hours involved in the time from when the applicant commenced her assignment, following the completion of her afternoon shift at 2.30pm and when she was discovered at approximately 9.30pm (apparently after taking a two hour absence for her singing lesson between 6 and 8pm). It is hard to accept that any approval given in the early afternoon would have been intended to extend over such a lengthy period where the patient, such as Andrew in his condition, might easily be discomforted by the presence over that length of time in his room of Ms Ryan. Accordingly, that fact alone says that the respondent in the person of Ms Hofman and Ms Edwards, were entitled to a proper explanation of why Ms Ryan was present at around 9.30pm in the evening in a resident's room such as the said Andrew, especially given his condition, and when the evidence showed both parties agreed he was cognitively impaired, to say the least, and having communication difficulties.

114 The issue of the consent which Ms Ryan said she'd obtained from both Andrew and the senior staff to commence her assignment using his computer, was one aspect of this case, not really contested by the respondent. However, it did go to the credibility of the applicant in assessing whose account to believe generally, and especially in respect of her actions on the 4th April. More relevantly the matter of consent, combined with the important issue of the extended time over which she occupied Andrew's room (less the two hours absence) went directly to the applicant's obligation to properly deal with Ms Hofman's query and then her request for her to leave.

115 There was again an important issue of credit in the differences between the applicant and Ms Hofman of what the applicant said to Ms Hofman, and the manner in which she spoke and her hand actions and the allegations of the applicant of being bullied by Ms Hofman. From that arose the argument that Ms Ryan was so affected by that alleged harsh and humiliating treatment, that she tendered her resignation

116 If the Commission cannot determine whose account to believe, it is forced to take into account that the evidentiary onus resided with Ms Ryan to convince the Commission to generally accept her account of what took place.

117 The Commission found no reason to fault the evidence given by Ms Hofman. In the process, it has taken into account that it is fairly unbelievable that Ms Hofman would have done much more than to show concern in her voice at why the applicant was there at such a late hour, off duty and technically as pointed out by Mr Borrow, as a visitor or equivalent thereof. It is more likely that Ms Ryan was provocative in her initial response.

118 The applicant's account of what had occurred was contained in paragraph 34 of her statement, where on her version of events, a perfectly reasonable exchange seemed to take place with a simple question from Ms Hofman, with the applicant immediately answering that she would just be a few minutes, "a few lines to go, give me five-fifteen-ten to fifteen minutes max". The reply from Ms Hofman was "okay, but then you have to leave". Somewhat unbelievably however, the applicant in the next entry in her statement is that Ms Hofman said "I have called Cheryl and she told me to call the police" to which the applicant maintained she'd responded that time "what, you're kidding, it was okay before". She went on in her evidence to suggest that Ms Hofman came back shortly afterwards and said words to the effect "the police are on their way".

119 That extract of the applicant's statement is difficult to accept inasmuch as Ms Hofman, who appeared to be a perfectly reasonable person in the witness stand and also described as such by Ms Edwards, would have reacted so quickly with the threat to call the police. It was much more likely that Ms Hofman's version of events was correct, in that the applicant immediately showed significant annoyance and waved her hand to give Ms Hofman the brush off, so to speak. The assessment of all those accounts leaves me to believe that the applicant provoked Ms Hofman into believing it was necessary to call Ms Edwards firstly, and also lead to Ms Edwards being of the belief that it was necessary to threaten the applicant with the police. On the applicant's version of events, if they were precisely correct, it would seem that the respondent overreacted to a fairly simple situation by the inclusion of the threat to call the police, but for reasons not sufficiently explained and therefore it is beyond belief.

120 The Commission is not able to accept the applicant's evidence over that given by Ms Hofman, and whilst the evidence of the previous difficulties the applicant had with other staff, did not show clear fault on behalf of the applicant, there remained an element that the applicant was somewhat burdened by a past history of virulent exchanges with other staff. Her failure to attend for counselling, claiming to be too upset, showed some tendency to overreaction, but the Commission does not rely upon that area of the evidence - largely denied by Ms Ryan.

121 Neither did Mr Borrow rely significantly upon this aspect, but the Commission has found that it was reasonable for the respondent to raise those issues as being fairly consistent with the allegations of Ms Hofman that her reaction to being visited by the senior registered nurse on duty on the evening of the 3rd April, as contended in the evidence of Ms Hofman.

122 It occurs to the Commission that, even if there had been an overreaction by Ms Hofman, the applicant should have realised that when the least objection was taken by senior nursing staff to her being present at that late hour when off-duty, that she should have adjusted her attitude and behaviour by retreating as quickly as possible from the resident, Andrew's room. This is after taking account of the applicant's evidence that there was very little of her assignment left to do and that she needed to finish quickly. Ms Ryan should have proceeded downstairs to see Ms Hofman and explain the situation fully and to explain to her the circumstances in a convincing way that she had previously obtained approval from Andrew and senior staff. Unfortunately, things got out of hand very quickly and the applicant at the very least, resorted to taking great offence to the overtures by Ms Hofman to leave.

123 I reinforce here that the Commission has not been able to accept that the respondent's representative, Ms Hofman, on that evening was as unreasonable as suggested by Ms Ryan, without the provocation suggested by Ms Hofman.

124 These findings are salient to the other credibility issues going to the final episode on the 4th April involving the question as to whether the applicant was entitled to believe that she would be too intimidated to properly discuss the situation of the evening before with both the Assistant DON and the Director of Nursing together as suggested by Ms Hudson.

125 Whilst the care and safety of residents was probably overemphasised by the respondent in the case presented by Mr Borrow, the Commission has had to agree with the general proposition advanced by Mr Borrow, that the actions of Ms Hofman and Ms Edwards on the evening of the 3rd April were at least in part motivated by a paramount duty to the welfare of residents, as envisaged in the Charter of Resident's Rights and Responsibilities (exhibit 7). It was Ms Ryan's responsibility to also take this into account in her assessment of the situation on the 4th April. It behoved her to approach the situation more clear headedly and whilst the threat to call police the evening before may have been an overreaction by Ms Edwards as translated by Ms Hofman, the applicant allowed that consideration to override the consideration she should have given to at least give Ms Edwards in particular, an opportunity to put matters back into prospective, by meeting with her as Ms Hudson indicated that she should do, when submitting her resignation.

126 The Commission has been forced to prefer the evidence of Ms Hudson, that it was the applicant who volunteered to leave immediately and in making that finding, I have taken into account the fact that as a casual employee, there was no requirement for the applicant to work two weeks notice, as suggested in her evidence that she would have preferred to do.

127 Similarly, the Commission has not been able to doubt the evidence of Ms Edwards, that the applicant did not approach her to discuss the matter when Ms Edwards asked her to leave the premises without continuing to say her goodbyes to staff and residents, after her impromptu resignation. Again, it was the applicant's day off and there was no doubt that the applicant had resigned in contentious circumstances, where she may very well have announced her discontent and dissatisfaction to others, including residents. Whilst it is regrettable that a person of three years service could not be in the position of saying her farewells upon leaving, realistically, the circumstances of her departure were reasonably taken into account by Ms Edwards when she insisted she desist from saying her farewells and to just simply leave.

128 The Commission has been assisted by the comprehensive treatment of the caselaw by Mr Borrow on the question of constructive dismissal, which I have taken the opportunity to consider in the circumstances of this case.

129 Taking those authorities together with these circumstances into account of both the 3rd April and on the 4th April, when the applicant actually resigned, Ms Ryan cannot be said to have been so treated by Ms Hofman and indirectly by Ms Edwards with the threat to call police, as to have no reasonable alternative but to submit her resignation.

130 Having regard to the fact that the Commission has found that it has not been able to accept the applicant's evidence in preference to Ms Hudson, that she was told to leave immediately, or that she had attempted to make last minute overtures to Ms Edwards, in conflict with Ms Edwards' evidence to the contrary, I have been forced to agree with Mr Borrow that the applicant cannot fit into any of the classes of circumstances properly designated as constructive dismissal. There was no ambiguity in the applicant's resignation. There was certainly no suggestion from the respondent that she resign, direct or indirect, and importantly my assessment of the evidence leads me to believe that the conduct of the respondent was not the initiator for the applicant feeling that she had no alternative but to resign.

131 Quite clearly the applicant had an obligation in the circumstance where she offered her resignation to take up the offer to discuss the matter with Ms Edwards and Ms Hudson, even if she did feel somewhat intimidated. After all, she was not too intimidated to offer to work what she claimed was a two week notice period required to be worked, according to her evidence, during which she would have had to "run the gauntlet" so to speak in making contact with Ms Edwards. She was not entitled to be that intimidated and unfortunately for Ms Ryan, the evidence did not support that she had no real alternative, especially as the respondent can be said to have been prejudiced by her refusal to discuss the situation when put to her by Ms Hudson.

SUMMARY

132 Whilst the caselaw in this area is helpful and in some cases even compelling in a given set of circumstances, few cases are very similar.

133 Having regard to the particular circumstances here, the following findings and earlier observations, show that Mr Borrow's contentions were very largely borne out in evidence.

134 The applicant was found not to be the innocent victim of an overreaction by the employer in threatening to call the police. She made a significant contribution to the situation by giving an inappropriate response to a justified enquiry from the senior nurse in charge. She owed a duty to react promptly and politely to the initial enquiry from RN Hofman. If she had the informed consent of the resident Andrew and other senior nursing staff earlier in the day, she should have gone out of her way, especially given it was 9.30pm and she was off-duty, to clarify that with Ms Hofman immediately, and away from the hearing of residents.

135 No doubt Ms Ryan, with three years service, felt demeaned by the follow up threat by Ms Hofman (following the DON's instructions) to call the police on apparently more than one visit back to Ms Ryan, because she was still there late in the evening when residents are expected to be resting and not distracted by unusual activity. She was not however, entitled to be so incensed by Ms Hofman's threat such as to feel so frustrated and humiliated as to resign. The situation was predominantly of her own making.

136 The Commission further finds that the gesture of coming in on her day off, left Ms Ryan with the difficulty of establishing any intended ambiguity in her resigning and given that I have not been able to prefer her evidence over others, on balance, I cannot accept that she expressed a wish to work two weeks notice, or that she was opportunistically cut off by being told by the Deputy DON that she should instead leave immediately - heading off the possibility of a change of heart. Likewise, I have not been able to accept her evidence over that of Ms Edwards, that she belatedly sought to parley with her employer, but was rudely rejected.

137 Whilst it appears somewhat heartless, I have accepted that it was reasonable for her to be told not to go upstairs to say her goodbyes and then, when she did, to be told to go, in the circumstances where she was upset, and where not enough was to be achieved, without the risk of upsetting residents and staff.

138 Finally, her alleged feelings of intimidation at the thought of talking with both the DON and Deputy about the previous evening's events, was a luxury she simply could not afford to indulge, and her so declining not only cut off her own opportunity to clarify issues and bring about a rapprochement, but also effectively denied her employer that chance.

139 In short, the employer was entitled to believe that the applicant did wish to unambiguously resign. It was not to be taken as a virtual plea for sympathy and understanding, or a bargaining chip to rectify some perceived injustice, as some resignations can be found to be.

140 Accordingly, this is not a case attracting the Commission's intervention.

141 The application is accordingly dismissed.

J P Murphy

Commissioner- 37 -