WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES BONE DENSITOMETRY AUSTRALIA PTY LTD TRADING AS PERTH BONE DENSITOMETRY

APPELLANT

-and-

SHARMAINE DEBORAH LENNY

RESPONDENT

CORAM FULL BENCH

 HIS HONOUR THE PRESIDENT P J SHARKEY

 COMMISSIONER P E SCOTT

 COMMISSIONER S M MAYMAN

HEARD WEDNESDAY, 8 JUNE 2005

DELIVERED MONDAY, 18 JULY 2005

FILE NO. FBA 2 OF 2005

CITATION NO. 2005 WAIRC 02081

CatchWords Industrial Law (WA) – Appeal against decision of a single Commissioner – Unfair dismissal – Credibility of witnesses – Jurisdiction of Commission – Constructive dismissal – Point not taken at first instance competent – Repudiation of contract – Loss – Compensation for injury – Industrial Relations Act 1979 (as amended), s7, s23A, s29(1)(b)(i), s49, s49(4) – Minimum Conditions of Employment Act 1993, s41

Decision Appeal dismissed

Appearances 

Appellant Mr T Caspersz (of Counsel), by leave

Respondent Mr C Fayle, as agent

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1         This is an appeal by the above-named appellant, Bone Densitometry Australia Pty Ltd trading as Perth Bone Densitometry (hereinafter referred to as “BDA”) against the decision of the Commission, constituted by a single Commissioner, given on 8 March 2005 in matter No 1044 of 2004.

2         The appeal is brought under s49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).  The appeal would seem to be against parts of the decision only (see page 1 of the book (hereinafter referred to as “AB”)).  The decision appealed against is contained in an order made on 8 March 2005 in which the Commission:-

 “(1) ORDERS that the Applicant’s claim for contractual benefits, be and is herby (sic) dismissed;

(2)          DECLARES that the Applicant was unfairly dismissed; and

(3)          ORDERS that the Respondent pay to the Applicant within 14 days of the date of this order the sum of $12,395.84 as compensation for loss and injury.”

GROUNDS OF APPEAL

3         The grounds of the appeal are as follows (see pages 1-2 (AB)):-

 “1. The Commission erred in fact and law and exceeded its jurisdiction by making orders nos (2) and (3) of the orders dated 8 March 2005 in the decision appealed against (the orders appealed against) when there was no sufficient evidence that the appellant:

  a) dismissed the respondent; or

  b) repudiated the contract of employment such that the respondent was “constructively” dismissed.

 2. The Commission erred in fact and law by making order no. (3) of the orders appealed against when, insofar as it relates to compensation for:

  a) an amount equivalent to 17 weeks of salary:

   I. the Commission failed to make any finding that such amount was the loss to the respondent that was caused by the dismissal, in accordance with the decision of the Full Bench in Bogunovich v Bayside Western Australia Pty Ltd;

   II. there was no evidence that the respondent suffered a loss that was caused by the dismissal equivalent to such an amount;

  b) an amount of $2,000 for injury:

   I. the Commission took into account the conduct of the employer in determining such amount, contrary to the principles laid down by the Full Bench in Capewell v Cadbury Schweppes Australia Limited;

   II. there was no sufficient evidence that the respondent suffered any injury that was caused by the dismissal justifying compensation equivalent to such an amount.”

BACKGROUND

4         The above-named respondent, Sharmaine Deborah Lenny (hereinafter called “Ms Lenny”), claimed that she was harshly, oppressively and unfairly dismissed on 10 August 2004 by the appellant, BDA.  Ms Lenny’s claim was brought under s29(1)(b)(i) of the Act, and was heard and determined by the Commissioner resulting in the order to which I have referred above.  The application was opposed by BDA.

5         Ms Lenny is a qualified medical technician with a Bachelor of Science degree.

6         At all material times, as an employer, BDA was engaged in the business of scientific scanning and measuring of bone density of patients for medical diagnostic purposes.

7         Ms Lenny was employed by BDA as a part-time medical technician.  She was first employed by BDA in April 1998 as a casual employee to carry out bone scanning one day per week.  She worked as a casual employee until August 1998 when she left to go to the United States of America for six months.  Whilst she was overseas, she kept in touch with BDA’s Practice Manager who was then Ms Margaret Minchin.

8         The business of BDA provides bone density scanning to patients who request that, either by a referral by their own doctors or a referral directly.  BDA has operated in this business since 1992 and they have fourteen bone density units around Australia, several of which are in Western Australia.  At all material times, BDA’s business in Western Australia was conducted at and from the following locations, namely Victoria Park, Joondalup, Fremantle, Bunbury and the West Australian mobile unit as well as from a recently opened premises in Mandurah. 

9         Whilst Ms Lenny was in the United States, Ms Minchin wrote to her and offered her a position as a full-time medical technician carrying out bone density scanning which would require her to tow a caravan containing a mobile scanning unit from town to town and scan persons in towns outside the metropolitan area.  She accepted that position in February 1999 and worked for BDA, carrying out mobile bone density scanning work until February 2001 when she became tired of living out of a suitcase.  She wished to return to Perth and spoke to Ms Minchin asking if there was any work available in the Perth office.

10      At that time, there was only one day’s work available per week in Perth, but Ms Minchin told Ms Lenny that the practice was becoming busy and one of BDA’s directors, Associate Professor Robert Keith Will, who is a consultant rheumatologist, had purchased five more mobile vans.  (The other director was Dr G L Mastaglia.)  Professor Will was referred to as an owner/proprietor at times during the proceedings at first instance, but neither he nor Dr Mastaglia could be, since BDA is a proprietary company.

11      In any event, Ms Lenny commenced work in Perth, bone scanning one day per week, and after a while, her work increased to two days per week and then to four days per week.  She continued to carry out scanning duties four days a week until the end of 2002.  Sometimes, she worked five days a week, but she decided after a while that five days a week was too much for her.  She spoke to Ms Minchin about this and Ms Minchin told her that there was a young man in the office who was prepared to learn to scan.

12      Ms Lenny then reached an agreement with Ms Minchin to carry out bone scanning for a reduced time, namely two days a week and to take over the young man’s general office duties two days a week at the Victoria Park office.  She received the same rate of pay of $19.11 per hour, whether she did scanning or clerical duties.  This is in fact how she worked from the end of 2002 until June 2004.  In June 2004, Ms Lenny spoke to Professor Will.  He said that he was not happy with the work of a woman who was carrying out bone scanning at Victoria Park twice a week.  He asked if Ms Lenny would take over bone scanning at Victoria Park one day a week on a temporary basis until BDA engaged a replacement.  Ms Lenny agreed.

13      From June 2004 until her employment was terminated, Ms Lenny worked three days a week bone scanning, and one day a week, she carried out office duties.

14      There was a written contract between the parties entered into on 10 May 2003 which had effect from 13 February 2003 and was current until 6 July 2004.  The material provisions of the contract contained a provision that Ms Lenny was a part-time employee, prescribed her duties, and provided for one month’s notice in writing or by payment or forfeiture of one month’s salary by way of termination of the contract.  It also prescribed hours of work, duties and job description.  Further and materially, the contract provided that it, the contract, might be varied by agreement between the parties in writing.

15      Ms Lenny was employed for a minimum of 32 hours a week, but sometimes worked longer, depending on the number of patients booked for bone scans.  After she had done the bone scanning, she would have to type out reports.  At the beginning of 2004, Professor Will introduced a new system of automatic reporting and, after that, Ms Lenny did not have to type each patient’s report.  In fact, an employee was engaged full-time in BDA’s Brisbane office to type all the reports from all scanning machines owned by BDA in Australia.

16      Bone scanning, Ms Lenny said in evidence, was a technical skill which requires concentration and an application of the principles of physics, knowledge of anatomy and preparation of accurate reports.  She admitted that the general office duties which she performed did not require any professional qualification at all.  It was common ground that she was paid $19.11 an hour for each hour she worked, irrespective of whether she carried out bone scanning or office duties.

17      Part of Ms Lenny’s duties at the Victoria Park office involved her keeping records for two research projects and sending the results by facsimile to Royal Perth Hospital.  She attended to messages on answering machines and answered five incoming telephone lines.  She was also required to make appointments for patients at the metropolitan bone scanning unit.

18      It was Professor Will’s evidence and the case for BDA that, in about mid 2004, what are now popularly termed “cash flow issues” afflicted BDA.  As a result, decisions were made by those responsible, including Professor Will and Dr Mastaglia, to make reductions in expenditure and outgoings.  One such decision was to examine the duties of employees within the business, and to determine whether it was necessary for persons, particularly Ms Lenny, to undertake general office clerical duties when she was overqualified for such duties and was paid at a rate of pay which was in excess of what a junior, relatively non-skilled person could be paid to undertake the same general office clerical duties.  As a result, a proposal was put to Ms Lenny at a meeting held on 6 July 2004 by Professor Will, and I will refer to that hereinafter.

19      On Thursday, 1 July 2004, after Ms Lenny finished her bone scanning work at Joondalup, she drove to Victoria Park to pick up her partner, Ms Leza Beth Bridges, who was also at that time employed by BDA.  When Ms Bridges got into the vehicle, she told Ms Lenny that she had some bad news for her.  That news was that BDA’s then Practice Manager, Ms Marilyn McGee, had informed her that Ms Lenny’s contract was going to be terminated and she would be offered another contract to work for three days a week, that is, reduced times.  Ms Bridges also told her that Ms McGee had told Ms Bridges that, if Ms Lenny had a problem, she could telephone Ms McGee and discuss the matter.

20      Ms Lenny attempted to contact Ms McGee on the telephone but was unable to contact her and had a sleepless night arising from what she had been told.  She then returned to work on the following Tuesday and asked if she could have a meeting with Professor Will with Ms Bridges present.  They did have the meeting on 6 July 2004 and Ms Lenny said that she said to Professor Will, at the meeting, that she had heard from Ms McGee via Ms Bridges that her contract had been terminated and she wanted to know from him whether this was true.  She said that Professor Will told her, “Yes, your current contract is terminated but I will be able to offer you another contract for three days but you’d be scanning only.”  He told her that it was not necessary for her to do any office duties.

21      Ms Lenny asked why her contract was terminated and said that Professor Will told her that BDA had a cash flow problem.  He did explain that they would have to organise ways themselves of getting the extra work done (I paraphrase).  She thought that, in fact, the work was increasing and therefore the reason which he gave her did not make any sense to her.  She asked him to put this decision to her in writing because she was aware that he had recently terminated the employment of about five other employees and offered to change the contract of employment of other persons who were employed in the office.  Ms Bridges then asked Professor Will who was going to do Ms Lenny’s work and he said that they would have to prioritise their work in a way which would absorb the extra work. 

22      Ms Bridges also asked him what was happening because there were people leaving, and the back office had gone from five to two employees.  Professor Will then told Ms Bridges that he was happy with her work, that he had a few projects coming up and he would like her to be part of that.  Ms Lenny said that she felt sick and humiliated when she heard this.  She had just been told that her hours of work were going to be reduced and there was extra work that was coming up that would not be given to her, but to Ms Bridges.  Professor Will told them that he was branching out into the exercise field, he had placed gym equipment in the front office and purchased another suite and was going to restructure the office.  Ms Lenny then asked Professor Will when this new arrangement would commence and he said, “Today”.  She told him, “I am not going to make a decision until I see this in writing.”

23      The salient parts of the new contract were employment for three days a week only and not four; employment for three months only with a review at the end of that time (instead of her ongoing, continuing contract of employment); a reduction in salary because of the reduction in time; and this would seem, the abolition of her clerical duties.

24      Ms Lenny agreed in cross-examination that she could not recall everything that was said in the 6 July 2004 meeting.  She said that she was certain that Professor Will said that he was terminating her contract of employment because that was the first question she asked him.  Ms Lenny did admit that, at no time, did Professor Will say to her that he wanted her to cease working for BDA.  However, on her evidence, she had already been told that her contract was terminated, on 6 July 2004.  She disagreed with what Professor Will had said in evidence.  As the Commissioner accepted and found, Ms Lenny’s contract ended that day.  She did work for a further five weeks, however, but that was not pursuant to that contract.  She was given a copy of the proposed new written contract and considered it and, having considered it, rejected it in a letter which she wrote on 15 July 2004.  She never received any written reasons from Professor Will for the decision which he had made, notwithstanding that she had requested that this be provided.

25      On 15 July 2004, Ms Lenny wrote to Professor Will as follows:-

 “Dear Rob:

 On July 6th you informed me of your decision to terminate my contract dated 13th February 2004 and offered me a three-month contract which proposes a weekly total of eight hours less work.  Given that my former contract has been terminated prematurely, I have reviewed my position with the Company and regrettably, I have decided not to accept the new contract.  I understand from my former contract, under Conditions of Service, paragraphs one and two from the Section 2.2 Tenure clause, that you will provide me with five week’s (sic) notice if you terminate the contract.  This should be implemented from the new contract date of July 6th and is therefore due to take effect as of August 9th.  I trust that all moneys due to me including accrued holiday leave, will be made available to me upon  my departure.

 During my 5¾ years with your Company, I have thoroughly enjoyed my position, but unfortunately I cannot continue to work for you under the conditions of the new contract.  I wish to gain employment with a Company that can offer me an on-going, stable and secure contract with tenure of a minimum of twelve months.  I hope that you have been satisfied with my suggestions and efforts to secure maximum patient numbers for the success of both the mobile units and the fixed sites.  I have also teamed up with Leza Bridges by keeping statistics on patient numbers for our Mobile Services so that I could write schedules that would improve patient numbers.  A quick glance at last year’s improved statistics bears testimony to my approach to scheduling and Leza’s endeavours with advertising.  Reduction in advertising expenditure over the past few months has unfortunately dramatically reduced last year’s significant increase in patient numbers.

 I would appreciate it if you could provide me with a letter of reference in recognition of my loyalty and commitment to scanning a maximum number of patients.  This has entailed months of extremely full days at Fremantle with only a 20-minute break during the entire day in order to provide an efficient service and to prevent you having to pay me overtime.  I have also forfeited several days of office work due to the demand for extra scanning days both at Fremantle and Joondalup, in order to provide greater flexibility than our competitors.  In addition, I have absorbed the extra time required to maintain extra projects such as Alral, Synarc and Total Body scans.

 I regret that I have been unable to inform you of my decision to not accept the new contract earlier.  On Thursday July 8th at Joondalup, I asked you to put in writing the fact that you were going to be issuing a new contract so that I could review it before making a decision.  Marilyn gave me the new contract yesterday and unfortunately I have financial commitments which prevent me accepting it.”

26      That letter expressed an unequivocal rejection of the new contract in terms which made it clear that Ms Lenny considered that she was being offered a new contract and was not resigning, she having already been dismissed.

27      A few days after Ms Lenny informed BDA that she would not accept the new contract, Ms McGee advertised on behalf of BDA for a Curtain University student to do office work.  Ms McGee said that, when two students were interviewed, they were asked if they wanted to be trained to carry out bone density scanning.  She said one of the students was a 20 year old and the other person was 17 years old and neither of them had any medical training.  Ms McGee was upset about this, she said.

28      On 22 July 2004, Professor Will wrote to Ms Lenny giving her a reference and saying that he was very happy to support her application for any future employment that she may wish to undertake (see page 9 (AB)).  Ms Lenny said that the reference was inadequate, describing it as paltry.  She wrote to Professor Will on 9 August 2004 complaining about the way she had been treated and the way in which Professor Will had treated other staff.  Ms Lenny left this letter on Professor Will’s desk on 9 August 2004.

29      That letter reads as follows in its first three paragraphs:-

 “Dear Rob:

 Since you have demonstrated an inability to find the time to see me in person after three attempts on my part to speak to you, I am writing to you in the hope you will have time to read this letter.  I have strong concerns both for the way you have treated myself and other staff and for your practice.

 On July 8th I requested to speak to you about your decision to terminate my current contract and your offer of a three-month contract which consists of one less day of employment with your Company.  You waved me away saying you didn’t have time and I asked you to set out your decision in writing to which you agreed.  After asking Marilyn several times in the ensuing week, I finally received the new 3 month contract.  However, there was no official letter informing me of your decision to terminate my existing contract and to replace it with a significantly different contract (to the tune of almost 30% less hours per week and for only 3 months).  Every day I asked Marilyn for that letter and finally, on August 2nd, I received a letter dated 22nd, which contained a brief statement that I had ceased working for you due to a change in my employment contract and a short reference for a prospective employer.

 I would have thought that after nearly six years of employment with your Company, you could have given me the courtesy of providing a reason in writing for changing my contract.  You at least afforded this information in writing to Kieran Wilson (no longer require a full-time DXA operator), Leah Dolman (downsizing of staff), Lauren Hill (new requirements for from office staff) and Zoe McGuire (downsizing of staff).”

30      There was no response from Professor Will or anyone on behalf of BDA to this letter.

31      Ms Lenny set out complaints about how she had been treated and how other staff, including Ms Bridges, had been treated as follows:-

“I now come to the major reason for this letter.  The reasons I have been working for you.  Patient care and the opportunity to provide a service which totally adheres to professional standards.  I have always prided myself on the quality of care and compassion I give to my patients both physically and supportively by providing them with a safe and informative procedure.  I tried to give you enough notice of my intention to not accept your new contract and I have observed with great disappointment, there has been no attempt to advertise the position for a person with nursing experience or a tertiary degree in Science.  Not only is my position being replaced by 3 Casuals, (Ben at Fremantle, Ahmed at Vic Park and Joondalup and Veronica at Vic Park) the total hours they have been offered equates to 48 hours per week.  Whilst I understand, that Ahmed and Veronica will also be doing office work, it does seen unfair that you in fact told me the reason you were cutting my hours was because it was no longer necessary to perform office duties.  What you didn’t tell me was that the work was still there to do, but you would rather pay a lesser rate of pay to junior staff.  You didn’t even attempt to negotiate with me to continue the office work and offer a lower rate for it.”

32      Ms Lenny was unable to remember whether, on 6 July 2004, in her discussion with Professor Will, he told her that the new contract would be for a period of three months pending further review.  She did not produce a copy of the new contract in evidence and the terms of it were not put to her in cross-examination.

33      She attended a general medical practitioner, Dr Len Atlas, because she was suffering from depression and insomnia, on 19 August 2004 and was prescribed medication.

34      Ms Lenny’s evidence was corroborated by Ms Bridges insofar as it related to discussions with Ms Bridges, with Professor Will in Ms Bridges’ presence and matters within Ms Bridges’ knowledge, such as that Ms Lenny was upset.

35      Professor Will gave evidence that a decision was made in discussions with his partner, Dr G L Mastaglia, that it was not “appropriate” for Ms Lenny to work four days a week when one of those days she carried out clerical duties which could be undertaken by junior staff.  The mobile bone scanning unit was no longer operating as well as they would like and this was a significant drain on the company’s finances, Professor Will said.  Therefore, they had decided to stop operating the mobile unit continuously and only operated it when there was a demand for scanning.  Professor Will said in evidence that it was inappropriate that Ms Lenny was doing clerical work for the company and was being paid an hourly rate of $19.11 when she should be carrying out bone density scanning.  He said that he needed one other person to carry out scanning in Perth in addition to her. 

36      Professor Will said that he did not make a decision to terminate Ms Lenny’s employment and he did not say to her on 6 July 2004 that her contract of employment was terminated.  The meeting on 6 July 2004, he said, was called to discuss “the change in her employment arrangements”.  At the meeting, it was clear to him that Ms Lenny was very unhappy about reducing her hours of work and, when he put this proposal to her, he relied on the express terms of Ms Lenny’s terms of employment contract, which expressly specified that, as an employer, they had some flexibility to vary her duties and hours of work.  He said that the termination of her employment came about because of her rejection of the proposal to accept an alternative contract.

Credibility

37      The crucial findings about credibility are contained in paragraph 39 of the reasons for decision, which I now reproduce:-

“There is really only one substantially material factual issue in dispute between the parties and that is whether Dr Will informed the Applicant on 6 July 2004 that he intended to terminate her contract.  Having observed the witnesses carefully and having considered their evidence, I prefer the evidence given by the Applicant and Ms Bridges to the evidence given by Dr Will in relation to this issue.  Neither the Applicant nor Ms Bridges were shaken in their evidence.  They both gave clear and consistent evidence in relation to this issue.  Further, their evidence on this point is consistent with Dr Will’s evidence that the new contract the Respondent intended to offer her would be for three months, which would enable the Respondent to reassess its requirements for bone scanning work at that time.  I do not accept the contention put on behalf of the Respondent that Dr Will’s evidence in relation to this point was not challenged in cross-examination (see transcript page 80, where it was put to Dr Will that he terminated the Applicant’s contract on 6 July 2004).”

ISSUES AND CONCLUSIONS

38      Ground 1 of the grounds of appeal is a ground which alleges that the Commissioner at first instance erred in making orders when she lacked jurisdiction to do so and, it is submitted, the Commissioner lacked jurisdiction to do so because there was no “dismissal”, within the meaning of that word, many times judicially defined in this Commission and as it appears in s23A and s29(1)(b)(i) of the Act.

39      That part of the grounds of appeal is not an appeal against a discretionary decision, or part thereof, as defined in s7 of the Act, and as characterised by many decisions of Full Benches of this Commission.  In this appeal, part of ground 1 and all of ground 2(b) do constitute an appeal against the discretionary decision of a single Commissioner, as the term “discretionary decision” is defined in Norbis v Norbis [1986] 161 CLR 513 and Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194.  It is the law in this Commission, carved in classic runes, that an appellant who alleges that the Commission at first instance or the Industrial Magistrate, has effected a miscarriage of the exercise of her/his discretion, applying the principles laid down in House v The King [1936] 55 CLR 499 and Gromark Packaging v FMWU (1992) 73 WAIG 220 (IAC), must establish that.

40      Unless it is established, then there is no warrant in the Full Bench to interfere with the exercise of the discretion at first instance and, in particular, no warrant for the Full Bench to substitute the exercise of its discretion for the exercise of the discretion of the Commission at first instance.

41      Insofar as the matter was decided by the Commission at first instance, on the credibility of a witness or witnesses, the Full Bench is bound to exercise its statutory jurisdiction and powers and carry out the statutory duty which s49 of the Act confers on it.  However, the Full Bench is bound to do so, taking into account the well known rule often applied in this Commission as it is expressed in Devries and Another v Australian National Railways Commission and Another [1992-1993] 177 CLR 472 per Brennan, Gaudron and McHugh JJ.  That is:-

“A finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against -- even strongly against -- that finding.  If the finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the judge has failed to use or has palpably misused his advantage, or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.

42      The Full Bench is also required to act in the manner required by the principle expressed in Fox v Percy [2003] 214 CLR 118, also often expressed and applied in this Commission wherein the principle in Devries and Another v Australian National Railways Commission and Another (HC) (op cit) was reiterated and appeared, but in which the majority reminded appellate courts and tribunals that their own duties under the statutes could create remedies in appeal.  Their Honours said at page 126:-

 “Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.  Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.”

43      Their Honours cited Dearman v Dearman [1908] 7 CLR 549 at 564.  Their Honours also referred to the well known dictum in Warren v Coombes [1979] 142 CLR 531 at 551, observing that that dictum had been held by the High Court in Warren v Coombes (HC) (op cit) at 551 to be “not only sound in law, but beneficial in … operation”.

44      Their Honours went on to observe that the decisions of Jones v Hyde (1989) 63 ALJR 349 at 351-352, Abalos v Australian Postal Commission [1990] 171 CLR 167 at 179 and Devries and Another v Australian National Railways Commission and Another (HC) (op cit) were “simply a reminder of the limits under which appellate judges typically operate when compared with trial judges”.  They then went on, importantly, to say:-

 “The cases mentioned remain the instruction of this Court to appellant decision-making throughout Australia.  However, that instruction did not, and could not, derogate from the obligations of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament.  Such courts must conduct the appeal by way of rehearing.  If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”

45      This approach has been consistently followed, as they are required to do, by Full Benches of this Commission.

Dismissal? – Constructive or Express

46      The complaint in ground 1 is a precise one.  It is twofold.

47      First, it is alleged that the Commissioner erred in fact in making orders 2 and 3 which were made on 8 March 2005.  Second, it is alleged that the Commissioner erred in law in making the same orders.  Third, it is alleged that the Commission exceeded its jurisdiction in making the orders because there was no dismissal established to have occurred, within the meaning of s23A and s29(1)(b)(i) of the Act.  Fourth, it is alleged that those errors were made because there was no sufficient evidence that the appellant dismissed the respondent or that the appellant repudiated the contract of employment so that the respondent was “constructively dismissed”.

Dismissal

48      I wish to observe that a “dismissal” has been defined generally to be the termination of the employee’s services by the employer without the employee’s consent (see Smith v Director-General of School Education (1993) 51 IR 204 at 219 and Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 at 391-393) (see, also, the definition applied in this Commission and expressed by the Industrial Appeal Court in Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 (IAC), which is as follows:-

 “The meaning attributed by the Shorter Oxford Dictionary to the verb “dismiss” is “to send away or remove from office, employment, or position.”  Speaking of the meaning of the word “dismissal” in Auckland Transport Board v. Nunes (1952) N.Z.L.R. 412 Fair J. said at p.410:

  The word “dismissal” may be used in a sense of a peremptory or arbitrary dismissal or a dismissal after due notice or payment under the terms of the contract of employment.

 Being qualified as the verb “dismissed” is in the context in which it appears in s.29(2)(a) by the adverb “unfairly” it seems to me that the subsection is designed to apply to all dismissals, whether wrongful or lawful at common law.  To paraphrase the words of Bray C.J. in his reasons for judgment in The Queen v. The Industrial Court of South Australia; ex parte General Motors Holdens Pty. Ltd. 10 S.A.S.R. 582 at p. 586, a lawful dismissal on notice can, I think, in appropriate circumstances be categorised as unfair, e.g. if dismissed by reason of his religious persuasion – conversely, some wrongful dismissals, as when by excusable mistake a notice is given slightly short of the period specified in the contract of employment or at common law, might not deserve that adjective.”

Constructive Dismissal

49      I wish to observe that “constructive dismissal” has been authoritatively defined by the Industrial Appeal Court in The Attorney-General v WA Prison Officers’ Union of Workers (1995) 75 WAIG 3166 (IAC).  That case is, in fact, an authority for the proposition, too, that, if an employee does not fully consent to the termination, then the termination is, in substance, equivalent to a dismissal by an employer.

50      In Cargill Australia Limited, Leslie Salt Division v FCU of Australia, Industrial Union of Workers, WA Branch (1992) 72 WAIG 1495 at 1497 (IAC), the Court referred to the judgment of the English Court of Appeal in Western Excavating (EEC) Ltd v Sharp [1978] QB 761 at 769 per Denning MR, where His Lordship dealt with the common law position in respect of “constructive dismissal” as follows:-

 “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one of the more essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.  If he does so then he terminates the contract by reason of the employer’s conduct.  He is constructively dismissed.  The employee is entitled in those circumstances to leave at the instance without giving any notice at all or alternatively he may give notice and say he is leaving at the end of the notice.  But the conduct must in either case be sufficiently serious to entitle him to leave at once.  Moreover, he must make up his mind soon after the conduct of which he complains;  for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract.”

51      It is certainly the case that in an industrial tribunal such as this, a constructive dismissal is a “dismissal” or a termination at the initiative of the employer.  An employee is permitted to leave the employment without giving notice where there is a change in the employee’s duties or location of work (see Hawker Siddeley Power Engineering Pty Ltd v Rump [1979] IRLR 425; United Bank Ltd v Akhtar [1989] IRLR 507), or a breach of contract by the employer (see Western v Union Des Assurances de Paris (unreported) Industrial Relations Court of Australia delivered 28 August 1996; Pedersen v Camden London Borough Council (Note) [1981] ICR 674 (CA) and Russian v Woolworths (SA) Pty Ltd (1995) 64 IR 169 and Woolworths (SA) Pty Ltd v Russian (1996) 66 IR 13).

52      Kennedy J, in The Attorney-General v WA Prison Officers’ Union of Workers (IAC) (op cit), characterised for the purposes of that case and generally, the nature of constructive dismissal, quoting from the judgment of Stephenson LJ in Sothern v Franks Charlesly & Co [1981] IRLR 278 at 280:-

 “Did he trip or was he pushed?  Was it murder 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 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…”

53      It is fair to observe that a constructive dismissal is often, by its very nature, unfair. 

54      Quite clearly, an employee is dismissed if he or she is given no option by the employer’s conduct, including a unilateral attempt in some circumstances to impose new and inferior conditions of employment, on an employee.  That can very much constitute providing no option but to accept it or be dismissed (see the full discussion of these matters in J L v Haydar Family Restaurants t/a McDonalds (2003) 83 WAIG 3303 at 3309 (FB)).

55      In any event, an important element of dismissal of an employee by an employer is that the act of the employer results directly or consequentially in the termination of the employment and the employee does not voluntarily leave the employment relationship.  Indeed, put another way, had the employer not taken the action which he/she did, then the employee would have remained in the employment relationship.  Put another way, if the employer directly or consequentially brings about the termination of the contract and the employee has no effective or real choice but to resign, it can hardly be said that the termination of employment is effected by the employee or his/her act (see J L v Haydar Family Restaurants (FB) (op cit) at page 3309, para 67).

56      Conduct which strikes at the eventual trust and confidence between employer and employee may be sufficient (see Walker v Josiah Wedgwood and Sons Ltd [1978] ICR 744 at 754 and Walker v Northumberland County Council [1995] IRLR 35).

57      What happened in this matter is quite clear, and indeed, there is not a great deal of dispute about what happened.  There were cash flow problems with the business which caused Professor Will and his co-director, Dr Mastaglia, to consider economies.  As a result, inter alia, they decided to take Ms Lenny off clerical duties.  They were paying her $19.11 per hour to perform those duties and they decided to offer her three days’ bone density scanning per week for a three month period, subject to review at the end of that period.  This was because the clerical duties which she was performing could be performed by a junior clerical employee for $10.00 to $11.00 per hour and not by her as a qualified medical technician at the much higher rate.  There was no doubt that Ms Lenny was told on 1 July 2004 by Ms Bridges, who had been so informed by Ms McGee, that it was BDA’s intention to reduce Ms Lenny’s hours which she worked from four days to three days per week.

58      Further, it is clear that, at the meeting of 6 July 2004, Professor Will told her that she was going to work reduced hours because her contract was terminated.

59      The Commissioner so found, preferring the evidence of Ms Bridges and Ms Lenny to that of Professor Will on that point.  The Full Bench was not taken to evidence, nor was it convincingly submitted that that opinion of the evidence or that that finding by the Commissioner was wrong.  Accordingly, it is quite clear that, on 6 July 2004, Professor Will, on behalf of BDA, terminated Ms Lenny’s existing ongoing and continuing contract of employment of four days per week.

60      The Commissioner’s finding that Professor Will said that he intended to terminate the contract (paragraph 39 of her reasons) was, to some extent, incorrect, his actual words being said to be, “well, your contract has been terminated” or “Yes, your…your current contract has…is terminated…”.  That is, he was notifying Ms Lenny of the decision which he had already made, that the contract should be terminated and was so in his mind.

61      What, Professor Will said, is not at all inconsistent with a finding that it was common ground that Professor Will did not wish Ms Lenny to cease to work for BDA.  That, in turn, is borne out by the fact that he offered her a new contract and, in fact, gave her a new written contract which she perused.  It is clear from that evidence that a new offer was made to her to work only three days a week doing bone scanning, and that this was for a period of three months, subject to the review of the contract at the expiry of that time.  This was distinct from and different from her existing contract which was not for a fixed term, but was ongoing and continuing for four days per week, yielding her a salary of 25% more than that which was offered on 6 July 2004.  In addition, the existing contract was a contract to work as a bone scanner (medical technician) and a clerical worker, not purely as a bone scanner (medical technician) as the new offer required her to do, were she to accept it.

62      That offer was rejected by Ms Lenny by letter dated 15 July 2004 and the contract was ended thereby.  Alternatively, of course, the contract of employment had already been repudiated and she rejected the new offer made to her because Professor Will said it was terminated.

63      The Commissioner found that the decision to reduce Ms Lenny’s hours of work, and her remuneration as a result, by 25% with a review after three months was unfair and, indeed, so substantively unfair as to constitute a repudiatory breach of the employee’s contract.  The Commissioner went on to find that Clause 2.3 of the contract required BDA to consider its own needs and the needs of Ms Lenny when making a decision to vary her hours of work.  The Commissioner then, having found that Ms Lenny was a long standing, hard working and efficient employee, and that her replacement by a junior clerical employee for one day per week would save $3,200.00 per year, also found that BDA’s business was a small business and that the cost of retaining her, however, had not been considered against the 25% reduction of income to her.  (There is no evidence that the cost of retaining her was considered.)  There is no doubt, for those reasons, that the contract was repudiated and the repudiation accepted.

64      Thus, the decision to reduce Ms Lenny’s work without regard to her needs, the Commissioner concluded, was unfair.  However, it was submitted by the appellant that there was no dismissal because BDA, exercising its rights under the written contract of employment, Clause 2.3, offered a mere variation of the contract and it was never terminated by actual dismissal or constructive dismissal by BDA.

65      Clause 2.3, Hours of Work, the clause invoked by BDA, reads as follows:-

“2.3 HOURS OF WORK

The normal office hours are Tuesday to Friday:  8.30 am to 5.00 pm (1/2 hour unpaid lunch break)

To ensure that the operational needs of the company are met, BDA may vary your hours of work.  In such cases, BDA undertakes to provide you with reasonable notice of significant variation to you (sic) hours of work and due consideration will be given to the needs on both parties.  However, BDA from time to time may require you to work outside your normal hours to ensure that the full requirements of your job are met.  This has been taken into account in setting your salary.

In event hat (sic) your hours of work are varied from that mentioned in this letter of offer for a significant period, time off in lieu for additional hours worked may also be granted at the discretion of the Practice Manager.”

66      Insofar as what BDA offered could be said to be a variation of hours of work and effected within the parameters of Clause 2.3, which is what the Commissioner clearly found, and which was not challenged on appeal, then, in making the decision, due consideration was not given to the needs of both parties in accordance with the clause.  I would so find.  I would so find because, under the contract, too, under Clause 2.5, a job could be changed.  Clause 2.5 reads as follows:-

 “2.5 DUTIES AND JOB DESCRIPTION

  Your duties will be those contained in you (sic) job description and such other duties as are assigned to you by the Practice Manager.

  It will be company policy to periodically examine its employees job descriptions and to update them to ensure that they relate to the requirements of the organization and to incorporate changes which are necessary.  It is the company’s aim to reach agreement on reasonable changes, but if agreement is not possible the company reserves the right to change your job following consultation with you.”

67      I doubt that Clause 2.1(d), which reads as follows, assists BDA:-

 “2.1 OBLIGATIONS TO BDA

 ….

 (d) Your specific duties that you undertake for BDA will include performing bone density assessments and any promotional and office duties associated withe (sic) the running of BDA.”

68      As I understand it, too, the variation was not in writing, as required by Clause 2.9 of the contract.  Then there could be no valid variation.

69      The existing agreement (pages 161-167 (AB)) was current from 13 February 2003 and was current as at 6 July 2004, at least until the meeting of that date.  That is what is clear on a fair reading of the whole of the contract.

70      However, due consideration of the needs could not require BDA to maintain Ms Lenny’s then current income indefinitely when it was incontrovertibly detrimental to the welfare of BDA that it continue to pay her at the rate which it was doing.

71      The variation proposal did take into account the needs of both parties as was required, with some compromise, particularly given that three days a week, not four days a week was available.  There was a submission on behalf of Ms Lenny that s41 of the Minimum Conditions of Employment Act 1993 had not been complied with.  It is not at all certain, given the evidence of what occurred at the meeting of 6 July 2004.  There was a failure to comply with Clause 2.3 of the contract in any event.  In any event, too, this was not part of Ms Lenny’s case at first instance and nothing about it was put to BDA’s witnesses.  It is barred by s49(4) of the Act and by the application of the principle in Metwally [No 2] v University of Wollongong (1985) 59 ALJR 481.  That argument and that evidence was not required to be taken into account.

72      Next, it was submitted on behalf of BDA that the exercise of the contractual right to vary was not harsh, oppressive or unfair, because it was not necessary to vary.  The contract could have been terminated on notice, as it was submitted.  However, if that was done, the question might be whether the contract was fairly terminated, so such a consideration was not a telling one and Ms Lenny would then have lost all of her job in circumstances which, it might be submitted, were unfair.

73      Further it was submitted on behalf of BDA, that Ms Lenny was still paid her medical technician’s rate of pay for her hours of bone scanning, or rather would have been had she accepted the offer of variation, if it was a variation.  Her hours of work and duties had changed throughout her employment by BDA, so there was nothing new about that.  Ms Lenny was given notice of and opportunity to consider and respond to the variation proposal and that notice was not only oral but in the form of a new contract in writing for her perusal and consideration, with time to do so, and she did so.  In any event, even if there was a failure to give due consideration to Ms Lenny’s needs, that breach of the contract was not sufficient to render the variation harsh, oppressive or unfair (see Garbett v Midland Brick Company Pty Ltd (2003) 83 WAIG 893 (IAC) per Heenan J at paras 84, 85 and 104, and Hasluck J at para 66).

74      It was submitted on behalf of Ms Lenny that what occurred was not a variation, but a new contract because the contract was terminated and the new contract was a very different one.  That matter was not raised at first instance and it is not now necessary to raise it or consider it.

75      However, if I were wrong in that, I agree that it was a different and new contract, because it was one offering one day less per week, resulting in 25% less income for different duties, that is, purely medical technician duties and no clerical duties; and it was a contract which was for a fixed period of three months instead of for an indefinite or ongoing period.  Even at the end of the three months, there was to be a review, no doubt to see whether it should be renewed or continued.  In other words, the new contract was a new contract and not a mere variation in hours or salary. 

76      In this case, there was no question that the contract had been terminated or varied by agreement.  It is not always clear whether, if there is consensuality, that that has occurred. 

77      Whether the changes result in a new contract being created or the old contract being continued, as varied, is a question of fact.  Indeed, the parties may intend a variation, but achieve a termination.  It is, of course, not open to an employer or employee to unilaterally change the terms of the contract (see, generally, Byrne v Twaddle t/a Mount Hospital Pharmacy (2002) 83 WAIG 5 at 12 (FB)).  In this case, there was clearly no variation, for the reasons which I have expressed above.  There was an express termination followed by the offer of a new contract significantly different in its terms.

78      However, for the same reason as I have found that if there was a variation it was not unfair, then I find the termination which was also replaced by the best offer which could be made in the circumstances, to be not unfair.

Ground 1

79      I think that this appeal ought to be disposed of in the following manner, insofar as ground 1 is concerned.

Point not taken at first instance competent

80      First, the evidence is quite clear, and the Commissioner accepted it, that there was an actual or express dismissal of Ms Lenny on 6 July 2004.  Undoubtedly there was.  Professor Will told her that she was dismissed and Ms Lenny, for some reason or another, worked out five weeks’ notice even though she had been dismissed.  The contract had come to an end, as the Commissioner correctly found.  Ms Lenny was, however, presented with a new contract for her consideration and rejected it in her letter of 15 July 2004.  (The new contract was not tendered in the evidence and was not before the Commissioner at first instance.)

81      All of that could readily lead to a conclusion that there was a dismissal and there was jurisdiction to hear and determine the matter contrary to the submissions for the appellant, there being no constructive dismissal but a simple and actual dismissal in terms as defined in Metropolitan (Perth) Passenger Transport Trust v Gersdorf (IAC) (op cit) and many cases in this Commission (and see, also the definition of “dismissal” as a wide term, cited by me supra in para 48). 

82      Objection was taken to the respondent relying on a submission when it was not made or relied on at first instance.  That submission was that, in actual terms, and as actually expressed, there was a dismissal of Ms Lenny by Professor Will on behalf of BDA on 6 July 2004 which was unfair.  It is to be noted that, unless s49(4) of the Act operates to prevent such a matter being raised which no party submitted on appeal, then the respondent was entitled to raise that point in support of “the judgment”, even though it was not raised at first instance (see The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 68 ALJR 311 (HC); and NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 SR (NSW) 273 (SC); and Osborne & Co v Anderson [1905] VLR 427 (SC)).

83      The point that there was a dismissal, even if there was no constructive dismissal, was not raised below.  It could not be a matter of cross-appeal because the point is not one they used to attack the decision at first instance, but to support it.  However, within the principle laid down in The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc (HC) (op cit), the submission was made within the general rule that a respondent to an appeal is entitled to support a judgment by an argument not presented below so long as the argument does not depend upon an issue of fact not litigated in the courts below and so long as it is open to the respondent on the pleadings and having regard to the way in which the case was conducted. 

84      In this case, of course, it was very much open, because of the evidence and, indeed, the finding of the Commissioner on credibility, to say that it arose from the way the case was conducted.  In this case, as I have said, the finding of actual dismissal and express dismissal, in the words which Professor Will used as found by the Commissioner, on 6 July 2004, to Ms Lenny.  That finding is supported by the action of Ms Lenny who actually rejected the new contract offered to her and accepted that she had been dismissed under the previous one.  Thus, there was jurisdiction to hear and determine the matter because there was an actual termination of the contract effected by a dismissal, albeit one upon inadequate or no notice.

85      The words used were clear words to dismiss her and she accepted that dismissal and rejected a new contract, which was an entirely different offer of employment under a new contract.  It was open to so find.

Finding of Constructive Dismissal

86      However, that is not the way in which the Commissioner dealt with the matter at first instance.  As I have already observed, the Commissioner found that the actions of BDA, in offering, through a director, Professor Will, a new contract which contemplated review after three months, for only three days work a week and a consequent 25% reduction in weekly salary with no clerical duties, even if it resulted in a resignation, constituted a constructive dismissal.  That is, Ms Lenny was given no option but to accept the new contract or be sacked on that basis.  That is, to accept the unilateral repudiation of the contract or be sacked.

87      The crux of the decision was that this proposal was so substantively unfair that it constituted a repudiatory breach.  The words “substantively unfair” really can only mean a breach of the implied obligation of BDA to be good and considerate to its employees.  A breach of that implied condition, as I have said, can certainly amount to a repudiation because of its seriousness and thus a finding of constructive dismissal if the repudiation is accepted, which it was found to have been.  The letter of 15 July 2004 was, in its terms, not a resignation but an acceptance of the repudiation of the contract, put at its lowest, for Ms Lenny.  In fact, it was a rejection of the offer of a new contract, on a proper reading of the letter.

88      The Commissioner found that there was a variation in her hours of employment and that that was effected pursuant to Clause 2.3, which permitted the employer to vary hours.

89      Firstly, I must say, because the point was permissibly raised on appeal for the reasons which I have expressed, that was an error because there was no variation in her hours.  There was an express dismissal or constructive dismissal of Ms Lenny and the offer of a new and very significantly different contract, a fixed term contract with reduced hours for only three months, with different remuneration and different duties, instead of an ongoing, continuing contract.

90      Second, Clause 2.9 of the contract of employment was not complied with, in that no written notice of variation was given.

91      Further, even if that were wrong and the Commissioner was right and this was a variation of Clause 2.3, there was a repudiatory breach of the implied duty of considerateness and goodness and an express breach of Clause 2.3, because Ms Lenny’s needs were not considered, there being a unilateral variation in that no notice was given, whether the requirement arose out of Clause 2.3 or not and for the reasons expressed for unfairness by the Commissioner in her reasons.

92      Repudiation has a variety of meanings (see Breach of Contract, Carter (1984) pp 222-223).  However, in employment cases, it is accepted that a repudiation will exist either when there is a breach of a condition going to the essence of a contract or when one of the parties has evinced an intention, through her or his conduct, expressly or by implication, no longer to be bound by the contract (see The Law of Employment, Macken, McCarry & Sappideen (5th ed) pp 220-222).

93      As Carter said in Breach of Contract, a repudiation of an obligation occurs when a party to a contract clearly indicates an absence of readiness or willingness to perform her/his contractual obligations if the absence of readiness or unwillingness satisfies the requirements of seriousness (see, generally, the discussion of this subject in Contract Law in Australia, Carter & Harland (4th ed), paras 1933, 1934, 1935, 1937, 1938, 1940).

94      Whether a repudiation has occurred is not a question of law, but a question of fact (see Woods v WM Car Services (Peterborough) Ltd [1982] ICR 693).  Thus, the wrongful dismissal of an employee constitutes repudiation, as does the breach of express or implied conditions of service, including the breach of an implied term to the effect that an employer must be good and considerate to its employees (see Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 and Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144).  See, too, the discussion of this point and the authorities cited in Contracts of Employment: Renaissance of the implied term of trust and confidence by Kelly Godfrey (2003) 77 ALJ 764.  See, also, and relevantly, the findings that arbitrary conduct will be a breach of that duty and, in particular, unilaterally changing an employee’s role (United Bank v Akhtar (op cit) and Hilton v Shiner Builders Merchants [2001] IRLR 727).

95      Further, another such example is exercising a discretionary power to relocate employees in a capricious manner which is akin to what occurred here, although the alleged exercise of power was arbitrary rather than capricious and certainly unfair (see United Bank v Akhtar (op cit) and Johnstone v Bloomsbury Health Authority [1992] QB 333.)

96      That was really the crux of the finding of the Commission of unfairness at first instance.  Of course, such a breach may amount to a repudiation of the contract entitling the employee to treat the contract as at an end (see J L v Haydar Family Restaurants t/a McDonalds (FB) (op cit) at pages 3309-3310, para 71).

97      If there was a failure to be good and considerate, moreover, which could properly be otherwise styled unfairness, as the Commissioner purported to style it, a finding of unfairness did not have to depend and could not depend on Clause 2.3, for the reasons which I have already expressed.  If that be wrong, then there was a contractual requirement for fairness which, manifested by the words of Clause 2.3, required the employer to consider Ms Lenny’s needs as well as BDA’s own, which was also breached and which would support the finding which the Commissioner actually made of constructive dismissal, in turn supported itself by the findings of unfairness in relation to the purported right to vary.  That constituted a dismissal, on the authorities, too, because she was “pushed” and “did not jump”.

98      There is no doubt, however, that there was a dismissal, actual or express, conveyed in unmistakeable words, on 6 July 2004 and correctly found, on the evidence, to have been so expressed.  That is because the evidence of Ms Lenny and Ms Bridges on that point was accepted in preference to that of Professor Will and, on a fair reading of the evidence, for the reasons expressed, there was no reason why the Commissioner should not have made and correctly made that finding.

99      Some consideration of whether there was a variation or an express dismissal is necessary.  Whilst there must be some allowance for a variation to duties not expressly provided for in the contract of employment, serious non consensual intrusions upon the status or responsibilities of or upon the remuneration attaching to the job, may amount to a repudiation by the employer (see Western v Union Des Assurances de Paris (op cit) per Madgwick J at 4).

100   A less drastic change sought by an employer, such as a change in working hours without a change in tasks to be performed or total hours worked, may not have the same consequences (see Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 at 578, and generally, per Ashley J, and see Byrne v Twaddle (FB) (op cit)).

101   It is obviously not possible for an employer to unilaterally change the terms of the contract and, if the employer purports to do so, she/he is repudiating it, generally put (see Byrne v Twaddle (FB) (op cit) at 12).

102   Repeated attempts to vary the terms of employment may constitute repudiation (see Reid v Campbell Engravers [1990] ICR 435).

103   Within those principles, if the Commissioner was right in finding that there was variation of hours offered which, with respect, was not the case, the Commissioner was correct to find and it was open to find that there was a constructive dismissal of Ms Lenny because the act of variation did not take into account her needs as expressed in the contract, and was a serious enough breach to be considered as a repudiation on the authorities to which I have referred above.  Further, the repudiation was accepted.  Alternatively, there was a repudiation within the principles outlined above, which was therefore accepted and constituted also a constructive dismissal because, within the principles which I have just discussed:-

a)                    This was an attempt to vary the contract by the employer in clear breach of Clause 2.3, for the reasons expressed by the Commissioner.

b)                    The alleged variation can constitute a serious non consensual intrusion upon the status, responsibilities, remuneration, hours and terms of the contract of employment of Ms Lenny.

c)                    This was an attempt to unilaterally change the terms of the contract amounting to a repudiation.

104   The dismissal was unfair, for the reasons found by the Commissioner and, in any event, because, in this case, it was a constructive dismissal which, ipso facto, was unfair.

105   Alternatively, therefore, there was a clear, constructive dismissal for the reasons which I have expressed and on the authorities to which I have referred, if there was unfairness supporting a finding of repudiatory breach. 

106   If Ms Lenny was actually dismissed by the words of dismissal, as she was because the Commissioner correctly found that she was dismissed as at 6 July 2004, then Ms Lenny had to establish that the dismissal was unfair.

107   In my opinion, it was therefore clearly open to the Commissioner to find an unfair constructive dismissal, as she did, whether Clause 2.3 was irrelevant or not.  It was, of course, in my opinion, irrelevant.

108   As to the reasons for finding unfairness, I make the following observations.

109   First, it was not established that there was not a cash flow problem being experienced by BDA such as to justify economies being taken.  Second, the onus lay on the appellant to establish that the dismissal was unfair.

110   There was a unilateral express termination of the contract by the employer on 6 July 2004, as at 6 July 2004, as the Commissioner correctly found.  That was sufficient to support a clear and correct finding of dismissal and for the reasons expressed in paragraph 111 hereof, to support a correct finding that the dismissal was unfair.  The offer of a new contract, as I have characterised it above, with significant new features was no variation and could not be.  There was, it was fair to say, no resignation, on a fair reading of Ms Lenny’s letter of 15 July 2004 but a rejection of the proposed new contract.

111   I would add this.  BDA’s representation of its assertion that it wanted Ms Lenny to continue to work for it on a new and much less advantageous contract, for the reasons which I have said above, was not a variation in accordance with the contract of employment and not a variation at all and did not purport to be, even if the express words of dismissal had not been used by Professor Will on 6 July 2004.  It is quite clear that Ms Lenny did not voluntarily leave her employment.  She was dismissed, actually and expressly.

112   On the evidence, it was clearly established to be unfair and the Commissioner was correct to find that it was and would have been correct to find that it was, for the reasons I have said, because:-

a)                  Ms Lenny was a long standing, hard working and efficient employee.

b)                 The replacement of her by a junior employee would give only a small saving of $3,200.00 per annum compared to her 25% loss of annual income.

c)                  There was no reason given why she should have been offered a fixed term of three months instead of an indefinite contract.

d)                 Whether the contract required it or not, the decision to terminate her contract somewhat perplexingly, without considering her needs, was for that reason unfair.

e)                  There was no evidence of any such consideration of her needs including her obvious financial commitments referred to in correspondence and, for that reason, it was unfair and contrary to the implied term requiring the employer to be good and considerate.

f)                   That failure to consider her needs was evidenced, too, by the manner in which she was peremptorily dismissed without proper warning, without discussion and, as the Commissioner found, without notice, and presented with a new contract as a fait accompli with no suggestion that the new contract could even be negotiated.

113   Within the principles in Miles and Others t/a Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385 (IAC), this was a harsh, oppressive and unfair dismissal, constituted by an oppressive use of BDA’s right to dismiss, as the Commissioner would have been entitled to find.

114   Alternatively, the unfairness to which I have referred above constituted a repudiatory breach, the acceptance of which resulted in an unfair dismissal and the unfairness and/or breach of the implied term rendered the constructive dismissal, ipso facto, unfair.

115   Thus, for those reasons, there was a constructive dismissal, for the reasons found by the Commissioner too, based on a finding of variation of contract.  Alternatively, for the reasons which I have expressed, there is a clear repudiation of the contract leading to a repudiation accepted by Ms Lenny and constituting a constructive dismissal.

116   Alternatively, and equivocally supported by the evidence and the findings of the Commissioner, that she preferred the evidence of Ms Bridges and Ms Lenny to that of Professor Will, on 6 July 2004, Professor Will told Ms Lenny that she was dismissed and offered her a significantly different and disadvantaged contract.  She was dismissed, therefore, on that day.  (Nothing was said to persuade me that that finding was in error, on a fair reading of all of the evidence, having regard to the principles in Devries and Another v Australian National Railways Commission and Another (HC) (op cit) and Fox v Percy (HC) (op cit), or for any other reason.)  Mr Fayle’s submission was that there was an actual dismissal, not a constructive dismissal and there was.  At all material times, therefore, there was jurisdiction in the Commission to hear and determine the matter.

117   For all of those reasons, as expressed, the dismissal was unfair.  There was no error of law or fact, as alleged.

118   For all of those reasons, ground 1 is not made out and fails.

Ground 2

119   I now turn to ground 2.  First, by ground 2(a), BDA complains that the Commissioner at first instance erred in fact and in law in finding that there was a loss equal to 17 weeks’ salary and in ordering compensation be paid in that amount, namely $10,395.84.

120   By that ground, it is alleged that the Commissioner failed to make any finding that the amount awarded was the amount of the loss suffered by Ms Lenny and caused by the dismissal according to the well known principles laid down in Bogunovich v Bayside Western Australia Pty Ltd (1998) 79 WAIG 8 (FB).  I have difficulty understanding that part of the ground and the submission.  The Commissioner was required to make a finding whether and what loss was established by Ms Lenny.  Then, she was required to consider what, if a loss was established, compensation she would award for that loss.  The Commissioner dealt with the issue of loss and compensation in paragraph 45 (page 16 (AB)) of the reasons for decision.  She makes it quite clear that she did not accept BDA’s contention that Ms Lenny had not proved that she had suffered a loss.  The Commissioner specifically found that Ms Lenny had suffered a loss.  It is clear that she found that it was caused by the unfair dismissal and it was clear that she found that it was mitigated.  That loss she found to be an amount of 17 weeks’ salary, calculated at 32 hours per week at $19.11 per hour, 17 weeks being the time which elapsed from the date her employment came to an end and the date of hearing.  That loss, on the evidence as was found, was, of course, caused by the dismissal and by nothing else, nor could it be said otherwise.

121   The amount was also awardable on the authority of Steele v Clark and Nicholls (2003) 84 WAIG 17 (FB) per Sharkey P at paras 38-42, Coleman CC and Gregor C (as he then was) agreeing.

122   The Commissioner did not err for those reasons and that part of the grounds is not made out.

123   Second, by ground 2(b), BDA complains that the Commissioner erred in fact and in law in awarding $2,000.00 compensation to Ms Lenny for injury caused by the unfair dismissal of her.  The Commissioner gave careful consideration to the authorities relating to the award of compensation for injury and, in particular, the dicta of Coleman CC and Smith C in AWI Administration Services Pty Ltd v Birnie (2001) 81 WAIG 2849 where they said:-

“It is accepted that there is an element of distress associated with almost all employer initiated terminations of employment.  For injury to be recognised by way of compensation and thereby fall outside the limits which can be taken to have normally been associated with a harsh, oppressive or unfair dismissal there needs to be evidence that loss of dignity, anxiety, humiliation, stress or nervous shock has been sustained.  Injury embraces the actual harm done to an employee by the unfair dismissal.  It comprehends 'all manner of wrongs' including being treated with callousness (Capewell v Cadbury Schweppes Australia Limited (1998) (sic) 78 WAIG 299).  The injury may be manifested by the detrimental impact on the physical or emotional wellbeing of the person whose services were terminated.  However dismissals will impact to varying degrees on individuals and while the need for professional care may be evidence of that impact, this will not necessarily always be the case in order to establish the causal link between the termination of employment and the injury.  While it is necessary to exercise a degree of caution to ensure that compensation is confined to reasonable limits (Timms v Phillips Engineering Pty Ltd (1997) 70 (sic) WAIG 1318 and Burazin v Blacktown City Guardian Pty Ltd 142 ALR 144) that is not to say that every claim for injury necessarily involves expert evidence of emotional trauma.

1        The circumstances in which the dismissal from employment has been effected may be sufficient to demonstrate the injury which is experienced.  Situations where an employee is locked out of the workplace or is escorted from the premises, or the termination has been conducted in full view of other staff are examples of callous treatment justifying recognition for compensation for injury (Lynham v Lataga Pty Ltd (2001) 81 WAIG 986).

2        However, the Commission is not able to adjust the measure of compensation according to the opinion of the employer or employee or of the conduct of the respective parties (Capewell v Cadbury Schweppes Australia Limited (op cit)).”

124   “Injury”, as the Commissioner found, embraces the actual harm done to an employee by an unfair dismissal and “comprehends all manner of wrongs” including being treated with callousness.  The Commissioner correctly observed, too, that whilst injury may be manifested by the detrimental impact on the physical or emotional wellbeing (or, for that matter, the reputation) of an employee unfairly dismissed, dismissals will affect individuals to varying degrees and, I might add, not at all.

125   The Commissioner observed, too, that, while the need for professional care may be evidence of this impact, this will not always be necessary to establish the causal link between the termination of employment and the injury.  Not every claim for injury, as the Commissioner correctly observed, necessarily involves or should involve expert evidence of emotional trauma.  (The Commissioner referred, too, to Timms v Phillips Engineering Pty Ltd (1998) 78 WAIG 4460 and Burazin v Blacktown City Guardian Pty Ltd (FC) (op cit).)

126   The Commissioner went on to observe, too, and correctly, that the circumstances in which the dismissal from employment had been effected may be sufficient to cause the injury experienced.  Examples were given of locking an employee out of the workplace or escorting an employee from premises in full view of staff, particularly, I might add, if this were unjustifiably done by a police officer or uniformed security officer (see the discussion of these matters in Lynham v Lataga Pty Ltd (FB) (op cit).)

127   The Commissioner went on to find that the decision by the directors of BDA was conveyed in a callous manner to Ms Lenny.  No apology was given to her that the matter had been prematurely revealed, third hand, in advance of 6 July 2004.  There was clear evidence that Ms Lenny was told there would be a termination of her employment, as well as a reduction of the hours which she worked.  It was not first conveyed by Professor Will and, indeed, Ms Lenny had to seek a meeting with him to find out what was actually occurring.  The Commissioner found that, by informing Ms Bridges on 6 July 2004 that he intended to provide her with work in relation to new projects after he had said that Ms Lenny’s hours would be reduced and she would no longer be required to carry out her clerical duties, was demeaning and it clearly was.  Indeed, the whole episode, in my opinion, went further than that because the Commissioner should have found that Professor Will said, as he did, “Well your contract has been terminated.”  That is, she was faced with a bald fait accompli with no preliminary discussion or no negotiation and no alternative given to her other than to accept a vastly reduced contract.

128   All of those circumstances support the Commissioner’s finding that Ms Lenny’s treatment was demeaning.  The Commissioner found that the manner in which Ms Lenny was informed that her contract was to be terminated was “callous, oppressive and humiliating”.  Again, I say that, on that evidence, Ms Lenny was told she was dismissed, not that she was going to be dismissed, which further supports the correctness of the finding.  She did, indisputably, seek treatment for insomnia and depression.  The Commissioner so found.  There is nothing in the reasons to say that the Commissioner relied on what Dr Atlas said or what Centrelink said in their letter after an officer interviewed Ms Lenny.

129   The Commissioner found that, from the time Ms Bridges told Ms Lenny that Ms McGee had said that her contract was to be terminated and her hours reduced, to the conclusion of her meeting on 6 July 2004 with Professor Will, she was shocked and felt humiliated.  Her evidence was that she was not usually an emotional person and that she had worked very hard for Professor Will and, whilst she agreed that she was emotional, she complained of having been bullied and exploited by Professor Will.  This was said in cross-examination (see page 45 of the transcript at first instance (hereinafter referred to as “TFI”)).

130   Her evidence-in-chief was that, after Ms McGee told Ms Bridges who in turn told Ms Lenny of the proposed termination and reduction of hours, Ms Lenny had three sleepless nights and was anxious and sick in the stomach.  She consulted a doctor and gave her own evidence, not controverted, that she was given medicine.  She did not return to work until 6 July 2004.  During the meeting on 6 July 2004, she said, she was sick and humiliated.  She was not shaken in cross-examination at all on these points and it was not suggested that her evidence was not credible on these points.  Ms Bridges corroborated that Ms Lenny was “pretty upset at the news that I told her”.  That evidence was not raised with her in cross-examination or at all controverted.

131   For BDA, it was submitted that there was no finding of actual harm done.  The finding of the Commissioner and the unshakeable evidence to which I have referred above gives the lie to that.  Ms Lenny said that she did interpret that Professor Will had rejected what she did in the performance of her office duties.  That evidence was clearly a manifestation of her hurt and arose from the fact that she was not to do clerical work any more, even if she accepted the new contract.  Whilst she admitted that Professor Will had not said that he was unhappy with her work, I am not persuaded that that, in the circumstances, could be reasonably be expected to dilute in her mind or objectively what had occurred on 6 July 2004.

132   Whilst Ms Lenny’s characterisation of the reference given to her by Professor Will dated 22 July 2004 was not, on a fair reading, paltry, it is understandable, given her treatment, that Ms Lenny had somewhat of a jaundiced view of it.  It does not detract at all from the fact that she undoubtedly and unjustifiably was caused hurt, shock and humiliation which affected her to some extent physically, to the extent that she required to obtain medicine from a doctor.  It detracts not at all from the correctness of the findings made.

133   Ms Lenny clearly did not suffer shock and humiliation because of her personality.  She, first of all, suffered it as a result of, and caused by, the unfair dismissal and the surrounding treatment of her, effected by Professor Will.  That was entirely clear.  That she might have suffered greater injury than someone else would, or any injury, was not established at all.  Even if it were, it is trite to observe that BDA, as the respondent, was bound to take Ms Lenny as it found her.  There was also unshaken evidence and uncontradicted evidence of her being bullied and exploited by Professor Will in the past, which might reasonably be found, if it were necessary, which it was not, to have caused a greater susceptibility to hurt and humiliation when the dismissal did come.

134   The submission for BDA that the finding that Professor Will’s conduct on 6 July 2004 was callous, oppressive and humiliating was erroneous because Professor Will gave much challenged evidence that he had made no decision to dismiss Ms Lenny before the meeting of 6 July 2004, has no merit.

135   First, that is the case because, when Professor Will made the decision, Ms Lenny could not mitigate the character of the decision, its effect and the manner of its communication and implementation.  Second, the evidence which the Commissioner preferred was that of Ms Bridges and Ms Lenny, namely that Professor Will had said, in answer to Ms Lenny’s question, that “Yes, your …. your current contract has …. is terminated, but I will be able to offer you another contract with  …. for 3 days but you’d be scanning only” (see page 14 (TFI)).

136   Ms Lenny’s hurt and, indeed, anger and humiliation are expressed very obviously in a letter to Professor Will of 9 August 2004.  I would also add that the complaint in ground 2 that the Commissioner erred in having regard to Professor Will’s conduct when Capewell v Cadbury Schweppes Australia Ltd (1997) 78 WAIG 299 (FB) was authority for the proposition that one could not, in finding loss and assessing compensation, has no merit in it.  Capewell v Cadbury Schweppes Australia Ltd (FB) (op cit) is authority for the proposition that the conduct of the parties plays no part in assessing compensation for loss following an unfair dismissal.  In this case, and the authorities which I have cited above are clear, one must look at the nature of the unfair dismissal and other evidence to determine whether the unfair dismissal caused any injury alleged to have been caused by it.  One has to look at the alleged injurious act and assess the conduct in that light when it has been alleged to be injurious. 

137   I would also add that nothing was submitted which might establish to me that the sum of $2,000.00 awarded for compensation for injury was outside a reasonable exercise of discretion, nor was it a complaint in the grounds of appeal.

138   For all of those reasons, ground 2 is not made out and fails.

FINALLY

139   For all of those reasons, the Commissioner was correct to find that she had jurisdiction to hear and determine the matter and was correct in so doing.

140   For all of those reasons, the Commissioner correctly found that there was a dismissal and the Commissioner determined correctly that it was unfair.  She was correct in her findings of loss and injury and the fact that they had been caused by the unfair dismissal, and correct in making the orders for compensation which she made.  It has not been established otherwise.

141   Further, it was not established, applying the principles in House v The King (HC) (op cit) and Gromark Packaging v FMWU (IAC) (op cit), that the exercise of the Commissioner’s discretion miscarried in any respect referred to in the grounds of appeal.  There is no warrant in this Full Bench, therefore, to interfere with the discretion at first instance.

142   Insofar as findings of fact made by the Commissioner, dependent on findings made as to the credibility of witnesses, there was nothing submitted which would persuade me, I having read the transcript and other evidence, that the Commissioner erred according to the application of the principles in Devries and Another v Australian National Railways Commission and Another (HC) (op cit) and Fox v Percy (HC) (op cit).

143   For all of those reasons, I would dismiss the appeal, no ground of appeal having been made out.

COMMISSIONER P E SCOTT:

144   I have had the benefit of reading the Reasons for Decision of His Honour, the President, in which he sets out the background to this appeal and the grounds of appeal.

145   In respect of Ground 1 of the appeal, I agree with His Honour, that Ms Lenny’s employment came to an end by virtue of a termination by the employer.  The learned Commissioner at first instance, having had the benefit of hearing the evidence first hand, preferred the evidence of Ms Lenny and Ms Bridges as to what was said in discussion with Professor Will on 6 July 2004.  According to that evidence, Professor Will told Ms Lenny that her contract had been terminated.  There is no reason to conclude that the Commissioner erred in preferring the evidence of Ms Lenny and Ms Bridges to Professor Will.  Although Professor Will also indicated that he did not wish Ms Lenny to stop working for the business, he offered her an alternative contract of employment which was unacceptable to her.  It would have reduced her hours of work and consequently her pay, and was not an ongoing contract but subject to review after three months.  This was not a variation to the existing contract in accordance with its terms, but a new contract, the existing one having been terminated by the employer.

146   In those circumstances, it was the employer’s actions which brought about the termination of employment.  It was open for the Commissioner to find and I conclude that there was a dismissal in accordance with the definition set out in Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 (IAC).

147   This was not a constructive dismissal but an actual dismissal.  Accordingly, there was jurisdiction for the Commission to hear and determine the application.

148   I agree with His Honour, for the reasons he expressed at paragraph 112 of his reasons that the dismissal was unfair.

149   For those reasons, Ground 1 is not made out.

150   As to Ground 2, I agree with His Honour that the loss and injury found by the learned Commissioner are set out in her reasons for decision and are supported by the evidence.  I note that the amount of $2,000 awarded for injury was appropriate and not erroneous.  This Ground is not made out.

151   Accordingly, I too, would dismiss the appeal.

COMMISSIONER S M MAYMAN

152   I have had the advantage of reading the draft reasons for decision of His Honour, the President.  I agree with those reasons and have nothing further to add.

THE PRESIDENT:

153   For those reasons, the appeal is dismissed.

Order accordingly