2007 WAIRC 00288
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIESCrystal Abbegail Gadenne
APPLICANT
-v-
W & A Gillespie Family Trust
RESPONDENT
CORAMCommissioner S Wood
HEARDMonday, 26 February 2007
DELIVEREDTUESDAY, 27 MARCH 2007
FILE NO.U 559 OF 2006
CITATION NO.2007 WAIRC 00288
CatchWordsTermination of employment - Constructive dismissal - Dismissal or resignation - Harassment, humiliation, ostracism - no jurisdiction - application dismissed
ResultApplication dismissed for want of jurisdiction
2007 WAIRC 00288
Representation
ApplicantMr P Gadenne as agent for the applicant
RespondentMs W Gillespie on behalf of the respondent
Reasons for Decision
1This is an applicationmade pursuant to s.29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”). The applicant Ms Crystal Abbegail Gadenne was employed as a Sales Assistant by the respondent, W & A Gillespie Family Trust, from 9 February 2006 to 9 December 2006. The respondent’s business is the Leading Edge music store in Joondalup. Ms Gadenne alleges that she was constructively dismissed, following a course of conduct from the respondent that left her with no other option but to tender her resignation. Ms Gadenne tendered her resignation on 2 December 2006 and worked out her notice of one week, with her last day of work being 9 December 2006.
2At paragraph 20 of her application, the applicant states the grounds as to why her dismissal was unfair:
“I feel I was unfairly dismissed because after excersing my right as a full-time employee by requesting to be paid on an additional day of work (Sunday) instead of time in lieu, I was then harassed, embarrassed, humiliated and ostracised to the point of my employment there being no longer tolerable for me. I gave my notice after being bullied and harassed to the point of having no choice and I feel this was unfair as I was only treated this way after requesting that I receive what I was entitled to. Examples of my treatment include being ignored by the manager, humiliated in front of other staff and purposely bullied and excluded in the workplace. I also suffered abusive language aimed at my family members”.
3Ms Gadenne gave unchallenged evidence that since her employment with the respondent she has worked for another employer from 18 January 2007 until she left of her own volition on 23 February 2007 to take up tertiary studies. She applied and was interviewed for a number of positions in the period between 9 December 2006 and 18 January 2007. In her new job she was paid a wage higher than her previous wage with the respondent as she undertook supervisory duties.
4Ms Gadenne’s evidence in brief is that she enjoyed a friendly relationship with the two proprietors. This changed when she was asked in November 2006 to work additional hours on a Sunday. She first accepted but then found that she was to receive only time in lieu, and not an overtime payment. She challenged this and was advised that the business was only a small business which could not afford to pay overtime. She says that she was advised by Astryn Gillespie that, “Right, well, my problem with that, as I said, I can't do it so if you won't do it I'll find someone who will and I'll have to drop you down to casual work because you're not fulfilling your requirements as a full-timer.” Ms Gadenne replied, “Do what you feel”. She consequently did not work Sunday, 19 November 2006 and she says that she was treated badly consequent to this in that she was not spoken to cordially, was excluded from discussions in the workplace,e.g. planning for a Christmas function, she was harassed about getting her father to remove an item of furniture from the respondent’s premises, she had to endure negative comments about her family members (in particular her mother), and another staff member with lesser experience was promoted. She says she also received a set of workplace rules that alluded to her being the lowest staff member. As a result of this differing treatment MsGadenne felt stressed and depressed until she was forced to resign. The applicant argues that she was constructively dismissed in that she was forced from her employment because no-one should have to endure the treatment she received.
5Under cross examination Ms Gadenne says that Ms Gillespie spoke to her in front of customers regarding a dispute with her parents. She was no longer worthy of ‘please’ and ‘thank you’and orders were simply barked at her. This occurred on a Thursday when Astryn Gillespie demanded that she, “take out the rubbish”. The day following the Sunday overtime issue MsGadenne says that Ms Gillespie barely said two words to her for the entire day. She says they went from being great friends to her not being worthy of a conversation. Ms Gadenne says that she spoke to Sharn about it but she wanted to stay out of it.
6MsGadenne says that following her resignation, there was discussion at the store regarding the staff Christmas party. She believes this could have occurred at another time when she was not present, as it made her feel completely excluded and humiliated. She says that Ms Gillespie had said to her that Ms Gadenne’s mother was an ‘effing idiot’, a psychopath and she was better off without her. Ms Gadenne says that she passed on messages from Ms Gillespie to her father regarding the removal of a desk. She says that she should not have had to endure abusive language regarding her family in the workplace. She says that she was stressed and unable to speak to either of the owners regarding the matter, and she felt that nobody liked her.
7Ms Gadenne says that she attempted to talk to Mrs Gillespie, at one stage, about Astryn’s behaviour and Mrs Gillespie told her to, “Put my head down and ignore it and continue my work”. This happened on the day that Astryn had a disagreement with Ms Gadenne’s mother. Ms Gadenne agreed under cross-examination that she complained when Astryn took cigarette breaks and when Astryn was out of the shop. Ms Gadenne was questioned by the Commission and confirmed that the matters she complained of, and which forced her to resign, were the absence of ‘please’ and ‘thank you’, the promotion of Sharn the day after she queried the Sunday payment, her exclusion from discussions, the text messages from Ms Gillespie, the abuse of her family members and negative comments about her mother. She says that MsGillespie and she had been friends before this and that she did not want the promotion for herself.
8The critical question in this matter is “was Ms Gadenne dismissed?” If there was no dismissal at the hands of the employer then the application must fail for want of jurisdiction. The Industrial Appeal Court set out the principles in regards to constructive dismissal in the matter of The Attorney General v Western Australian Prison Officer’s Union of Workers 75 WAIG 3166 @ 3167:
“The critical question before the Industrial Commission and before this Court is whether the facts reveal that Mr De Grussa was “dismissed”. In this context, it does not appear to me to be particularly helpful to introduce any notion of constructive dismissal, the only question being whether or not Mr De Grussa was “dismissed” by his employer. There is nothing in the Industrial Relations Act equivalent to s55(2)(c) of the Employment Protection (Consolidation) Act 1978 (UK) which expressly created the concept of constructive dismissal. The position for the present purposes is, in my view, summarised in the judgment of Stephenson LJ in Sothern v Franks Charlesly & Co [1981] IRLR 278 at 280:
“Did he trip or was he pushed? Was itmurder or was it suicide? I know that such a simple consideration of starkly contrasted alternatives is too often outlawed by authority in deciding the issue of dismissal vel non. Even if the question, ‘Was the employee dismissed?’ cannot always be answered by answering the question, ‘Who really terminated his contract?’ the real answer to the second question gives the right answer to the first question in this case.”
9In Mr De Grussa’s case he was misled by internal investigators and pressured by persons, “acting as part of the employer’s administrative apparatus”, to sign a resignation the terms of which were dictated to him.
10If I take the applicant’s evidence at its highest I cannot reach the conclusion that Ms Gadenne was ‘pushed’ from her employment. In considering whether Ms Gadenne was pushed from her employment, I must weigh carefully the totality of what she says affected her. The promotion of Sharn is a matter I would discount as Ms Gadenne says she did not want the promotion. It is then difficult to see how this could have impacted on her so as to affect her actual employment. The exclusion from discussions about the Christmas party must also be discounted as it occurred after Ms Gadenne had decided to resign and tendered her resignation. Hence it could have played no part in her arriving at that decision.
11At the centre of the complaints is the dispute over the removal from the respondent’s premises of some property owned by Ms Gadenne’s parents. Clearly this matter caused some tension. The respondent says unchallenged that the desk was sizeable and that they needed the space for Christmas merchandise. The desk had been on the premises for approximately 10 or 11 months. In that sense its removal had become pressing. Ms Gillespie unwisely and wrongly sent the following text messages to Ms Gadenne and received at least one reply on 1 December 2006:
FR:ASTRYN
29/11/0610:17 AM
“Can u please remind your father 2 come and collect his property 2day or I’ll organise delivery 2 your house n I’ll take it out of your pay and he can pay u back. It’s takin up rent space. Thanks n see u soon”
FR:ASTRYN
30/11/0610:55 AM
“Hi Can u tell ya mother that the cabinet must be removed by 2 pm 2day or I’ll be sendin it 2 your house and u can pay. Thanks Chook.
FR:ASTRYN
01/12/0609:35 AM
“What time is ya mother pickin up HER cabinet?”
FR:ASTRYN
01/12/0609:37 AM
“Cool thank you!”
12The desk was removed from the premises the day after Ms Gadenne resigned. It is clear from Astryn Gillespie’s evidence that she had intended to deduct money from Ms Gadenne’s pay if she had sent the desk back to Ms Gadenne’s parents. This never eventuated. To threaten the deduction from pay in this matter was clearly wrong. However, the text messages themselves suggest that the matter was resolved by 1 December 2006. The desk was collected some two days later. It is not clear to me how such a set of events could amount to Ms Gadenne being ‘pushed’ from her employment; bearing in mind also that at one time Ms Gillespie was abused over the telephone by Ms Gadenne’s mother and that the issue had been ongoing for some time. It is clear from the evidence that up until at least mid-November 2006 Ms Gadenne and MsGillespie had been friends at work and outside of work. This situation in my view changed or strained the friendship due to the tension over having the desk removed.
13I cannot conclude on the basis of Ms Gadenne’s evidence alone that her employer evinced any intention to push her from her employment. For this reason I must dismiss the application for want of jurisdiction as there has been no dismissal or constructive dismissal. However, to assess the evidence further I must say that I prefer the evidence of Ms Gillespie to that of MsGadenne. Ms Gadenne’s evidence is exaggerated in my view. Ms Gadenne maintains that she was forced to accept Sunday work with no overtime pay, refused to do so and was thereafter ostracised. Ms Gillespie denies this and says that Ms Gadenne could not work on the relevant Sunday, others did so and were paid. I prefer Ms Gillespie’s evidence. Having weighed the evidence I am convinced that the dispute was more about the removal of the desk than the non-payment of overtime, or any pattern of behaviour by the employer designed to force a resignation from Ms Gadenne.
14An issue arose during hearing as to the production of a diary or computer record of daily events. I did not grant an adjournment as Ms Gadenne had every opportunity to give direct evidence on what she says occurred. In any event, the applicant later withdrew the application to adjourn and decided not to seek to present the document.
15I would therefore dismiss the application for want of jurisdiction.