WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES KENNETH WENCESLAUS PIOTROWSKI, APPLICANT v. HYATT REGENCY PERTH TRADING AS HR OPERATIONS LIMITED, RESPONDENT CORAM COMMISSIONER J L HARRISON DATE THURSDAY, 4 DECEMBER 2003 FILE NO/S. APPLICATION 1868 OF 2002 CITATION NO. 2003 WAIRC 10183 _________________________________________________________________________________________________________ Result Application alleging unfair dismissal dismissed. Representation Applicant Mr K Piotrowski on his own behalf Respondent Mr D Crowe (as agent) _________________________________________________________________________________________________________ Reasons for Decision 1 This is an application by Kenneth Wenceslaus Piotrowski (“the applicant”) pursuant to s.29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”). The applicant alleges that he was unfairly dismissed from his employment as a security officer with Hyatt Regency Perth trading as HR Operations Limited (“the respondent”) on 20 October 2002. The respondent argues that the applicant was not unfairly terminated as the applicant tendered his resignation to the respondent on 21 September 2002. Was this application lodged within 28 days of the applicant ceasing employment with the respondent? 2 The respondent maintained that when the applicant lodged this application on 13 November 2002 this application was lodged out of the required timeframe for lodging applications. It was not in dispute that the applicant resigned on 21 September 2002 giving the required four weeks’ notice and that the applicant did not return to work with the respondent after 2 October 2002 when the respondent indicated to the applicant that he was not required to work out his notice period. The respondent maintains that as the applicant agreed to cease working with the respondent on 2 October 2002 then his contract of employment with the respondent ceased on that date. As this application was lodged on 13 November 2002 the application was therefore lodged out of the prescribed 28 day time frame. The applicant maintains that it was at the respondent’s initiative that he was not required to work out the remainder of his notice from 3 October 2002 through to 20 October 2002. The applicant gave evidence that after resigning he became ill due to work related stress. When he was on sick leave he received a call from his supervisor Mr Lohse saying that he would be paid his wages for the rest of his notice period and that he did not have to work the remainder of his notice period. The applicant stated that he had every intention of returning to work after taking sick leave but the respondent did not want him to return to work after 2 October 2002. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 4115 3 A notice of termination, once given, will operate to end the contract when the period specified expires unless the notice or resignation is withdrawn by mutual agreement (see the discussion in “Macken, McCarry and Sappideen’s The Law of Employment” Fourth Edition at page 172). When determining the applicant’s date of termination I find that the applicant’s contract of employment ended at the end of his notice period, that date being 20 October 2002. I accept the applicant’s evidence that as at 2 October 2002 he was not required by the respondent to work out his period of notice. Further, the applicant was paid up to 20 October 2002 even though he did not return to work with the respondent after 2 October 2002. Given that I have found that the applicant’s contract of employment with the respondent ceased on 20 October 2002 this application was therefore lodged within the required timeframe. Background 4 The applicant was employed by the respondent as a security officer on 17 April 2000 initially on a casual basis. His employment changed to a full-time basis on 4 September 2000. At the time of his termination the applicant’s salary was $33,700.00 per annum and his terms and conditions of employment were those contained in the Hotel and Tavern Workers’ Award 1978 (No. R 31 of 1977) (“the Award”). Applicant’s evidence 5 The applicant maintains that the respondent behaved in such a way that he had no alternative but to tender his resignation on 21 September 2002. The applicant believes that as a result of the respondent’s actions throughout his employment he was put under stress and pressure and this led to him having to resign. 6 The applicant stated that one issue which caused him stress was working continual night shifts. The applicant gave evidence that he worked night shifts five days per week from 11.00pm to 7.00am until April 2002. In January 2002 a burglar attempted to break into his house and as he has three small children he asked his then manager, Mr Ron Chapman if he could alter his night shift roster so that he could be with his family in the evening. He stated that this issue was not addressed until April 2002 when Mr Sven Lohse was appointed the new manager of the Security Department and he allowed the applicant to work rotating shifts from April 2002. 7 The applicant also complained that from September 2001 he was required to undertake a number of additional duties which did not form part of his normal security duties as outlined in his duty statement (Exhibit R2). The applicant stated that in addition to his normal security duties he had to deliver newspapers to rooms, undertake valet parking, deliver necessities to guests’ rooms, set up additional beds when required and he audited the keys. Another duty he had to undertake was daily cash audits where large sums of money had to be counted and input onto a spreadsheet for banking. So that the respondent could save money the night porter’s hours were reduced and security officers undertook some of these duties. The applicant claimed that by having to undertake these additional non-security duties, pressure was put on him by the respondent. The applicant gave evidence that as a result of undertaking these additional duties he frequently became ill and his health deteriorated. 8 The applicant was also concerned about how the respondent handled an incident in mid May 2002 involving the applicant and a couple who were in the hotel looking for a friend. The applicant maintained that he was to be given a written warning as a result of this incident and he believed this warning to be unfair. Even though Mr Oliver Ruf, the applicant’s duty manager, asked the applicant on two occasions to keep an eye on the couple and monitor their movements, the applicant stated that as he was counting a considerable amount of money (approximately $36,000.00) it was not possible for him to check on the couple. He therefore asked the respondent’s Bell Attendant, Mr Slayton Morris to keep an eye on them. When Mr Lohse told the applicant that he was to be given a warning letter about his behaviour in relation to this matter the applicant reminded Mr Lohse that under the respondent’s procedures he could not give him a written warning. The applicant stated that he was then given a verbal reprimand which was recorded on his personal file and Mr Nodding told him not to question the respondent’s duty managers when they gave him instructions. The applicant stated that from this time onwards he found it very hard to work with the Duty Manager who had caused this verbal warning to be given to him. 9 The applicant was also concerned about the respondent’s handling of another incident involving duty managers allegedly stealing soft drinks. In May 2002 the applicant forwarded an email to Mr Lohse raising this issue. As a result of this complaint an email was sent out to all duty managers by Mr Lohse reminding them that it was inappropriate for duty managers to help themselves to soft drinks. A copy of this email was sent to the applicant and he claims because his name was on the email duty managers knew that he had complained about them and as a result he was treated differently from that point onwards. The applicant informed Mr Andrew Nodding the respondent’s Director of Human Resources, at a meeting held at the end of May 2002 that some of the duty managers were stealing soft drinks. The applicant claimed that this problem had been ongoing for some time and the applicant maintained that he had informed his previous manager Mr Chapman about this matter but nothing was done. He stated that it was his view the respondent did not want to deal with this issue which was a clear case of theft. After this meeting with Mr Nodding the applicant approached the Equal Opportunity Commission and Worksafe for assistance as well as approaching a lawyer for advice. 10 The applicant maintained that the respondent mishandled another incident involving him which occurred at the end of August 2002 involving an intoxicated woman who was on the respondent’s premises. The applicant gave evidence that he did not see this woman stealing or doing anything serious enough to warrant contacting police. He stated that as this person was intoxicated he escorted her to the car park. The applicant gave evidence that at a meeting held on 10 September 2002 with Mr Lohse and Mr Nodding in relation to how the applicant handled this incident the respondent tried to put pressure on him to break down and resign. The applicant told Mr Nodding that he was under a lot of pressure doing work not related to his normal security functions. In response Mr Nodding told the applicant that he was expected to cope with his job even though he had to undertake additional duties. The applicant stated that he felt that the respondent was putting pressure on him and that even though he worked hard for the respondent he was not being appreciated. 11 The applicant stated that on 5 September 2002 Mr Lohse asked the applicant when he was going to resign. Mr Lohse had also suggested to the applicant that he transfer out of the security department to another department as information on his personal file did not reflect well on the applicant. The applicant stated that on 16 and 17 September 2002 Mr Lohse again asked him when he was going to resign and Mr Lohse told him that he would consider giving the applicant casual work. The applicant told him that he would not resign at that point but would probably resign the following month. 12 It was as a result of the meeting held on 10 September 2002 and the questions from Mr Lohse about when the applicant would be resigning which led to the applicant tendering his resignation on 21 September 2002. A copy of the applicant’s resignation, dated 21 September 2002, is as follows, formal parts omitted: “Dear Sven, I would like to give you notice as of today 21st September 2002, one months (sic) notice of my employment with the Hyatt Regency Perth. My last working day will be on the 20th October 2002, this leaving you plenty of time to train your new staff. I will be more than happy to do some casual work if you need some cover for the functions.” (Exhibit R1). 4116 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 13 The applicant stated that as a result of his concerns about his ongoing employment with the respondent he undertook a real estate sales representative training course in July and August 2002 and on 18 September 2002 the applicant applied for registration as a sales representative with the Real Estate and Business Agents Supervisory Board. From July 2002 through to December 2002 he was employed as a casual real estate representative with Ray White Real Estate Agency in Belmont. After ceasing employment with Ray White Real Estate Agency he commenced employment with Charles Parrella and Associates (Real Estate Agents) in January 2003 but he ceased working with this agency several months ago to concentrate on preparing for this hearing. The applicant conceded that the respondent was aware that he was undertaking real estate sales training and he agreed that he distributed his real estate card to some of the respondent’s employees prior to tendering his resignation in September 2002 (Exhibit R3). 14 Under cross-examination the applicant was asked if he had disobeyed an instruction from his Duty Manager in May 2002 when he refused to investigate the presence of the two visitors in the hotel. The applicant stated that he was trying to do the right thing by the respondent but he was counting a large amount of cash at the time. As he had to handle cash in a particular way he made the decision not to comply with the duty manager’s instruction. It was put to the applicant that he only raised the issue of the duty managers stealing soft drinks after he had a disagreement with one of the duty managers. The applicant maintained that he raised this issue with the respondent prior to making a formal complaint about this issue to Mr Nodding. He agreed he could have better handled the incident which took place in August 2002 involving the woman who was intoxicated and who was suspected of stealing and he agreed that during the meeting with Mr Nodding about this issue a number of alternatives were put to him to consider if a future incident of this nature arose. The applicant also agreed that the issue of allowing an intoxicated person to drive was raised with him at this meeting but he stated that there were other people in the woman’s car. The applicant confirmed that during this meeting the respondent did not threaten him with termination. He stated however that the tone and the nature of the conversation was such that he felt pressured by the respondent and he had the view that whenever something went wrong in security he was blamed. 15 The applicant was asked about his intentions to resign from his position with the respondent. The applicant confirmed that at one stage he indicated to the respondent that it was his intention to resign (transcript page 63). He stated that he commenced training to be a real estate agent after the respondent made it clear to him that he should look elsewhere for work and he only undertook the real estate course because he thought he was going to be terminated. The applicant agreed that none of his managers told him that he was going to be terminated, however it was his view that he was going to be terminated after having discussions about his situation with other employees. Even though the applicant was not given any warnings that his job was in jeopardy he stated that he thought it would be just a matter of time before he lost his job. He stated that he did not intend to take up real estate work on a full-time basis and that he handed in his resignation because he felt stressed at the time. It was put to the applicant that his resignation was written in friendly terms. The applicant stated that the email was written in this way because he did not want the respondent to treat him unfairly subsequent to his resignation. 16 The applicant gave evidence that since ceasing employment with the respondent he has earned $4,709.80 gross from real estate activities and additionally he has been receiving Centrelink payments. He has applied for a number of jobs which is a requirement for receiving the Newstart allowance and for the last two months has been involved in a work for the dole project. 17 Mr John Tomola was summonsed by the applicant to give evidence. He commenced employment with the respondent as a security officer on a casual basis on 13 March 2002. He now works on a part-time basis 30 to 35 hours per week undertaking night and afternoon shift duties. It was put to Mr Tomola that during a discussion with the applicant at a shopping centre on 9 October 2002, he told the applicant that Mr Lohse had instructed two people to search the applicant’s car when the applicant came to the respondent’s premises on 3 October 2002 to return his uniforms so that the respondent could try to find evidence to terminate the applicant. Mr Tomola could not recall this conversation taking place. Mr Tomola stated that during this discussion the applicant raised a number of issues with him and he listened to the applicant’s complaints. There was also a discussion about some of the respondent’s documents that the applicant had in his possession relating to discounted room rates. It was also put to Mr Tomola that he told the applicant that he could see he was being pressured by the respondent and that the respondent was out to get the applicant. Mr Tomola denied saying this to the applicant. He stated that it would be improbable for him to make this statement as he had only been employed by the respondent for a short time and at that stage he would not have been able to form this view. Mr Tomola believed that the applicant was unhappy about undertaking additional non- security duties and he understood that the applicant was unhappy with both Mr Chapman’s and Mr Lohse’s management style. 18 Mr Richard Kardasz was summonsed by the applicant to give evidence. He has been employed as the respondent’s doorperson for approximately 15 years. Mr Kardasz was not aware of any instruction given by Mr Lohse on 3 October 2002 to search the applicant’s car when the applicant returned his uniforms. Mr Kardasz conceded that at some point in August or September 2002 he had a conversation with the applicant and he may have mentioned that Mr Lohse was out to get the applicant. He agreed that in a discussion with a friend of the applicant, Mr Ben Yee, that he told Mr Yee that the respondent wanted to search the applicant’s vehicle. Even though he may have thought that Mr Lohse wanted to get rid of the applicant he stated that he had never heard Mr Lohse make any statements saying that he was out to get the applicant. Mr Kardasz stated that the applicant was a stirrer and had a grudge against the respondent. 19 Mr Michael Appleby was employed by the respondent as a bell attendant between January 2002 and January 2003. He gave evidence that even though Mr Lohse instructed him to search the applicant’s car on 3 October 2002 in order to locate documents, he refused to do so. 20 Mr Yee confirmed that he had a discussion with Mr Kardasz whereby Mr Kardasz indicated to him that it was his view that the applicant had a case against the respondent and that the respondent was out to get the applicant. Respondent’s evidence 21 Mr Nodding has been the respondent’s Director of Human Resources since January 1993. He confirmed that the respondent currently employs approximately 380 employees. Prior to September 2001 the respondent employed approximately 400 employees. In September 2001 the respondent reduced employee numbers to 340 due to poor trading. Mr Nodding stated that the cutback in staff numbers was effected mainly by natural attrition and as a number of employees were not replaced existing staff had to operate more flexibly. 22 Mr Nodding stated that he met with the applicant in May 2002 to discuss the applicant being unhappiny about what the applicant claimed was a warning letter that he had been given by Mr Lohse. Mr Nodding explained to the applicant that the letter given to him by Mr Lohse was a file note and did not constitute a written warning. The applicant maintained that in the circumstances the file note should not have been generated as his behaviour was justified. Mr Nodding stated that he and the applicant discussed options about how to deal with matters of this nature in future. The applicant then raised an incident relating to duty managers allegedly stealing soft drinks. The applicant maintained that he wanted something done about this issue and he was annoyed that despite complaining about the issue nothing had happened. Mr Nodding informed the applicant that duty managers had the right to access drinks from the Regency Club and that he would have been concerned if it had been people who were not authorised to be in that area. As the applicant was so upset about the issue he agreed that he would bring 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 4117 it to the duty managers’ attention and ask them to be more discreet in future. Mr Nodding believed that his discussion with the applicant ended on a positive note. He stated that during this meeting he made no threat to the applicant about his ongoing employment nor were any comments made about the applicant being terminated. He stated that the meeting was pleasant even though the applicant was emotional about his claim that duty managers were drinking on duty. 23 Mr Nodding stated that another meeting took place with the applicant on 10 September 2002 about an incident which occurred relating to the theft of goods from one of the respondent’s banquet rooms. Mr Nodding had been told that a potential suspect who was thought to be involved in this incident was an intoxicated woman who was on the respondent’s premises and had been interviewed by the applicant. Mr Nodding stated that he discussed with the applicant the issue of the respondent’s duty of care in allowing an intoxicated person to drive. Mr Nodding stated that the applicant was given an opportunity to explain why he handled the incident in the way he did and the applicant was asked why he did not initially complete a report into this incident. Mr Nodding confirmed that he and the applicant discussed how the applicant could have handled the situation better. He confirmed that the meeting was not disciplinary in nature and that the conversation was not hostile. He stated that at no stage was the applicant told that he should have arrested the intoxicated patron. Mr Nodding stated that during this meeting he did not express any concerns about the applicant’s performance and he stated that the respondent regarded both incidents as being isolated events and he stated that at this time he was unaware that the applicant had any intention of resigning. However Mr Nodding felt that the applicant was not taking the meeting seriously and that the applicant was defensive and resistant to feedback about his behaviour. Mr Nodding had the view that the respondent had handled issues concerning the applicant in a fair manner and at no stage was the applicant put under any pressure to resign. Mr Nodding also believed that grievances involving the applicant relating to his employment were dealt with in an appropriate manner. 24 After the applicant resigned on 21 September 2002 Mr Nodding was aware that Mr Lohse had been in contact with the applicant about his illness. He was also aware that the applicant did not have any paid sick leave entitlements available to him. Mr Lohse asked Mr Nodding if the applicant could be paid out the rest of his notice period as a gesture of good will and Mr Nodding agreed to this course of action. 25 Under cross-examination it was put to Mr Nodding that the applicant raised with him the issue of duty managers removing keys from the security office without signing for them and using the keys to access the Regency Club and remove soft drinks. Mr Nodding stated that the issue of security keys being taken was not raised with him at his meeting with the applicant in May 2002. It was put to Mr Nodding that it was inappropriate for the applicant to be interrupted when he was counting large sums of cash. Mr Nodding had the view that it was not unreasonable for the applicant to be requested to deal with a security situation given his role as a security officer, even though he was counting cash at the time of the incident in May 2002. Mr Nodding confirmed that it was the duty manager who had discretion to allocate duties to security officers and as the duty manager on his shift believed that it was appropriate in this case to allocate the applicant to security duties instead of counting cash then Mr Nodding had no issue with this decision. It was put to Mr Nodding that the increased duties expected of the applicant after September 2001 was such that he did minimal security duties. Mr Nodding stated that the applicant was required to undertake some night porter duties from time to time as well as additional duties and that this was a normal requirement when giving service in a five star hotel. Mr Nodding stated that even though additional non-security duties were expected of the applicant after September 2001 he stated that the main change to the applicant’s duties was having to be more flexible when the applicant was on duty. He stated that even though the applicant was allocated additional duties from time to time the applicant’s main security function was not compromised and security duties remained his major function throughout his employment with the respondent. He stated that adjustments to other employees’ shifts assisted in covering the night porter’s duties when the night porter was not rostered for duty. 26 Mr Lohse commenced employment with the respondent in March 1990 and on 1 April 2002 he became the Security Department Manager taking over from Mr Chapman. Mr Lohse stated that there are currently three full-time employees in the Security Department as well as four to five casual employees who fill in when security officers are unwell or on leave. He stated that a security officer’s main duties were to patrol the hotel, record any incidents which arise and undertake any incidental duties. He stated that in addition security officers were required to help out in other departments as and when required. This included undertaking room service, delivering newspapers, cleaning up glasses after functions and valet parking. He confirmed that the applicant was expected to undertake these extra duties in addition to his normal security duties. Mr Lohse stated that in April 2002 the respondent made a decision to cut the night porter’s hours and this meant that security officers on night shift had to undertake additional duties normally done by the night porter. 27 When Mr Lohse became the Security Manager in April 2002 the applicant complained about some of the additional jobs which he had to undertake. The applicant also advised him that he wanted to be put on to rotating shifts. This led to Mr Lohse revising the applicant’s shift arrangements towards the end of April 2002. 28 Mr Lohse stated that he had no problems with the applicant’s performance and that the applicant had a good rapport with other staff members which was important when undertaking security work. It was his opinion however that the applicant became less motivated towards the end of his employment with the respondent. 29 Mr Lohse was asked about the incident involving the applicant’s complaint about duty managers accessing soft drinks in the Regency Club. He understood that the applicant had made complaints about this issue prior to this matter being raised with him in April 2002. He confirmed that once he was aware of this issue he held discussions with other managers and he requested that they keep an eye out for this behaviour. Mr Lohse was surprised to receive a further complaint about this issue from the applicant in mid May 2002 as he understood that this issue had been finalised. He stated that when the issue about keys being taken to open the fridges in the Regency Lounge without being signed for was raised with him by the applicant an email was sent to the duty managers on 15 May 2002 about this issue (Exhibit A1). He stated that even though he understood that the Director of Rooms had given permission for duty managers to access soft drinks in the Regency Club it was his view that this was inappropriate. He was aware that the applicant remained unhappy about this issue as he believed his complaint had not been appropriately dealt with. 30 Mr Lohse discussed the incident when the applicant was asked by his duty manager to deal with two guests who were wandering about the hotel. Mr Lohse stated that the letter he gave to the applicant about his actions in relation to this incident did not constitute a written warning and this was confirmed with the applicant in writing (Exhibit R1, letter dated 15 May 2002). He stated that it was necessary for a security officer to respond to issues of this nature and it was inappropriate for the applicant to disobey his duty manager in this instance. 31 Mr Lohse commented on the meeting which took place on 10 September 2002 as a result of the applicant’s handling of the intoxicated woman found wandering around the hotel and then being allowed to go to her car. He stated that as it was his view that the applicant could have handled the situation better he arranged a meeting with the applicant and Mr Nodding to counsel the applicant. He stated that both during and subsequent to this meeting no warnings were given to the applicant about his behaviour and there was no mention of the applicant’s employment being in jeopardy. Mr Lohse stated that the applicant was not happy about being at this meeting and he observed the applicant being agitated during this meeting. It was his view that the applicant did not accept the reason for the meeting being held. 4118 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 32 Mr Lohse was aware that the applicant was undertaking a real estate representative training course whilst working with the respondent and that he had taken time off from work to complete this course. Mr Lohse stated that the applicant told him that he was interested in pursuing a career in real estate and that he wanted to remain working with the respondent and in the real estate industry until he could take on real estate duties on a full time basis. 33 Mr Lohse stated that sometime prior to the meeting held on 10 September 2002 the applicant mentioned ceasing employment with the respondent. He stated that the applicant also initiated a discussion with him about being redeployed to a bell attendant position because this position had more appropriate hours. Mr Lohse stated that once or twice the applicant said to him that he would hand in his resignation the following week. Mr Lohse confirmed that on or about 16 September 2002 he had a discussion, initiated by the applicant, about the applicant resigning and undertaking casual work. 34 Mr Lohse stated that as soon as the applicant resigned he went on sick leave. Mr Lohse rang the applicant on 2 October 2002 and informed him that he did not have to work out his notice and told him that the respondent would pay him for the remainder of his notice period as the applicant had ran out paid of sick leave. He then asked the applicant to come in the next day to hand in his uniforms. When the applicant turned up on 3 October 2002 he told the applicant to park at the front of the hotel and he told the bell attendant to look after the vehicle. He stated that he did not ask the bell attendant to search the applicant’s vehicle. 35 Mr Lohse stated that the applicant had not been offered casual employment with the respondent subsequent to him ceasing employment with the respondent as a number of existing casual employees were available to the respondent thus there was insufficient work for an additional casual employee. Mr Lohse stated that at no stage did he make any comments to the applicant about the prospect of him losing his job or having a poor record on his personal file. Submissions 36 The applicant submitted that he had a good employment history with the respondent. He argued that his relationship with the respondent deteriorated after September 2001 when he was required to undertake an increasing amount of additional duties as well as his normal security duties combined with working night shifts on an ongoing basis. This led to the applicant being pressured which made it difficult for him to continue working with the respondent. Despite a request in January 2002 to change his roster the respondent did not take him off his night shift roster until April 2002. He stated that in September 2002 he was wrongly blamed for an incident involving theft from the hotel and he claimed that the respondent breached its own policies in dealing with a number of incidents which took place at the hotel. 37 The applicant stated that the respondent increased pressure on him to resign by continually asking him when he was going to resign. The applicant also argued that the respondent searched his car after he had resigned in order to build up a case to terminate him. The applicant maintained that the respondent followed a deliberate strategy to ‘get him’. He was thus given no option but to resign. 38 The respondent submitted that the applicant resigned of his own volition. Even though the applicant relied on a number of incidents in support of his contention that he had no choice but to resign the respondent maintains that there was no pressure put on the applicant to resign. The respondent argued that the applicant’s duty statement allows for additional duties to be assigned to the applicant. The respondent also argues that it was reasonable for the respondent to discuss security incidents with the applicant. Both interviews about these incidents were handled in a fair manner by Mr Nodding and no disciplinary or formal warnings were given to the applicant at either of these meetings. It was the applicant’s decision to seek out alternative employment as a real estate representative, and the applicant commenced going down this path some months before resigning. This decision was not related to any action on the part of the respondent. Even if it is found that the respondent attempted to search the applicant’s car on 3 October 2002 this was irrelevant as the applicant had already resigned by that stage. In all of the circumstances the respondent argued that it did not behave in such a way that the applicant was given no alternative but to resign. Findings and Conclusions Credibility 39 I listened carefully to the evidence given by each witness. I have concerns about some of the evidence given by the applicant. When giving evidence the applicant was very definite about what he alleged occurred in relation to his employment and what he claimed was a strategy by the respondent “to get him” thus leaving him with no alternative but to resign. However, the weight of evidence is against much of the applicant’s evidence about the issues he relies on to support his claim that the respondent did not wish to continue employing him. For example the applicant maintained that the respondent’s duty managers treated him less favourably as a result of an email sent by Mr Lohse to duty managers about accessing drinks which arose out of the applicant’s complaints. The applicant maintained that as this email was copied to him duty managers were made aware of his complaint and treated him differently because of this complaint. However the applicant conceded during cross- examination that he was aware that his name did not appear on the email sent by Mr Lohse to duty managers. The applicant also asserted that he had been given a formal warning about his behaviour in mid May 2002 however there was no evidence that this was the case. Indeed there was evidence confirming the contrary – that is that the applicant had not been given a formal warning in relation to this incident (Exhibit R1, letter dated 15 May 2002). 40 I have concerns about the evidence given by Mr Tomola and Mr Lohse in relation to Mr Lohse giving an instruction to search the applicant’s car on 3 October 2002. They were both hesitant and evasive whilst giving evidence about this issue. Even though the issue of searching the applicant’s car was not relevant to the applicant’s termination (he resigned on 21 September 2002) in the circumstances I accept Mr Appleby’s clear and forthright evidence that Mr Lohse directed Mr Appleby to search the applicant’s car. 41 I was particularly impressed with Mr Nodding’s evidence. His evidence was given in a clear and considered manner. I accept Mr Nodding’s evidence that he dealt with the applicant’s grievances and the respondent’s concerns about the applicant’s behaviour professionally and appropriately and this was confirmed by the contents of the exhibits detailing Mr Nodding’s meetings with the applicant. I therefore accept Mr Nodding’s evidence as being an honest account of the meetings held with the applicant. 42 The main issues in contention arise out of the evidence given by the applicant and Mr Nodding. Given my view on witness credit, where there is any inconsistency in the evidence I prefer the evidence of Mr Nodding to that given by the applicant. Except for the issue of Mr Lohse instructing that the applicant’s car be searched on 3 October 2002, I also accept Mr Lohse’s evidence as it was largely consistent with the applicant’s evidence. 43 Was the applicant terminated? 44 In relation to an unfair dismissal claim brought pursuant to s.29(1)(b)(i) of the Act, it is incumbent upon an applicant on the balance of probabilities to demonstrate that he or she has been dismissed by the employer to attract the Commission’s jurisdiction. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 4119 45 In this case the applicant resigned from his position with the respondent on 21 September 2002. A resignation can constitute a dismissal for the purposes of the Act but whether or not a particular resignation will do so depends upon the circumstance of each case. The relevant law to be applied in this matter was set out by Beech, SC in Grant Raymond Lukies v AlintaGas Networks Pty Ltd (2002) 82 WAIG 2217 at 2220— “The Industrial Relations Commission of South Australia in Lucky “S” Fishing Pty Ltd v Jex (1997) 75 IR 158 at 164 also considered the decision of the Court of Appeal of New Zealand [Auckland Shop Employees’ Union v Woolworth’s (NZ) Ltd (1985) 2 NZLR 372]. It noted that the Court of Appeal stated that there has been a modification of the test in the Western Excavating (ECC) Ltd v Sharp case (1978) ICR 221 at 226 which stated that 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 or more of the 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 Court of Appeal suggested that in constructive dismissal cases the relevant test is whether the conduct complained of is calculated or likely to seriously damage the relationship of confidence and trust between the parties and is such that the employee cannot be expected to put up with it.” When applying this test to the facts and circumstances of this case I find that the applicant was not constructively dismissed. It is my view that there were no actions by the respondent which constituted conduct calculated or likely to seriously damage the relationship of confidence and trust between the parties such that the applicant could not be expected to put up with it. I find that the applicant brought the contract of employment to an end of his own volition. 46 It was not in dispute that the applicant resigned by letter dated 21 September 2002 giving four weeks’ notice of his intention to cease working with the respondent. I accept that at the beginning of 2002 the applicant was concerned about continuing to undertake night shift duties. Even though the respondent did not initially accede to the applicant’s request in January 2002 to vary his night shift duties, when Mr Lohse became the applicant’s manager in April 2002 and he became aware that the applicant wished to be taken off night shift duties, the applicant was put on rotating shifts commencing at the end of April 2002. 47 The applicant claims that pressure was put on him to resign because the applicant was expected to undertake substantial non- security duties after the respondent suffered an economic downturn in September 2001. The applicant argued that it was inappropriate for him to be undertaking additional non-security duties. I accept that the respondent was experiencing economic difficulties after September 2001 and this led to a period whereby employees were not being replaced and existing employees had to undertake additional duties from time to time. I do not accept however the applicant’s contention that his main duties after September 2001 involved undertaking non-security duties. I accept that the applicant was required to undertake some additional non-security duties including counting cash, room service, delivering newspapers to rooms and assisting after functions as well as occasional night porter duties. However, I accept Mr Nodding’s evidence that these duties were incidental to the applicant’s main duties and were not intended to and did not compromise the applicant’s normal security duties. 48 In addition to the applicant’s complaints about undertaking ongoing night shift and excessive additional non-security duties the applicant was upset by the way the respondent handled three specific incidents. The first issue arose as a result of what the applicant saw was inactivity by the respondent in dealing with duty managers inappropriately accessing soft drinks. I accept that Mr Nodding and Mr Lohse dealt with this issue appropriately once it was raised with them however the applicant found it hard to accept the way in which the respondent chose to deal with this matter. I accept that duty managers were sent an email reminding them about the behaviour required of them in relation to this issue (Exhibit A1, email dated 15 May 2002). Even though this email effectively disposed of the issue the applicant had the view that his complaint had not been appropriately addressed. Even though the applicant felt he was being ignored in relation to this matter I find that the respondent reacted appropriately to the applicant’s concerns each time this issue was raised by the applicant. 49 The applicant claimed that it was unfair for the respondent to warn him for refusing to undertake security duties in May 2002. The evidence was clear that the applicant did not receive a formal warning as a result of this incident. I find that it was appropriate for Mr Lohse to formally write to the applicant about his behaviour in relation to this matter as the applicant initially refused to undertake a check on two visitors when told to do so by the duty manager. Even though the applicant understood that he had an important role to count cash it should have been apparent to the applicant that his major duties related to security and he should have accepted that it was at the duty manager’s discretion to allocate him to either counting cash or security duties as determined by the duty manager. This issue was canvassed with Mr Nodding at the meeting the applicant had with Mr Nodding in late May 2002 which was convened due to the applicant’s complaint about Mr Lohse’s letter. I therefore find no substance to the applicant’s complaint in relation to this matter. The letter from Mr Lohse expressly states that the letter to the applicant did not constitute a written warning and I accept Mr Nodding’s evidence that the discussion with the applicant ended on a positive note. 50 I accept that it was appropriate for Mr Nodding to have discussions with the applicant to highlight the respondent’s concerns about how the applicant could have more appropriately handled the incident involving the intoxicated woman being on the respondent’s premises in August 2002 and the theft of goods from one of the respondent’s banquet rooms. I accept the applicant was not given a formal warning for his behaviour in relation to this incident and in my view the applicant was aware that this was the case. I also accept that Mr Nodding handled this interview in a professional and fair manner and I accept Mr Nodding’s evidence that the applicant was defensive during this meeting and resistant to feedback being given to him. Even though the applicant formed the view that the respondent was “out to get him” and was thus putting more pressure on him to resign as a result of this meeting in my view this was not supported by the evidence. 51 In my view the meetings that the applicant had with Mr Nodding were conducted in such a way that the applicant should not and could not have formed the view that the respondent wanted the applicant to cease employment with the respondent. 52 It is clear that by mid 2002 the applicant was unhappy about his employment with the respondent and was contemplating a career change. This led him to embark on a real estate training course in July and August 2002. The respondent was aware of the applicant’s intentions and allowed the applicant to take leave to attend the real estate course. In my view it is significant that the applicant took this step some months prior to handing in his resignation. This would also explain Mr Lohse discussing the possibility of the applicant resigning on more than one occasion. 53 I find that the respondent’s actions from April 2002 until the applicant ceased employment with the respondent was not indicative on an employer who was ‘out to get’ the applicant. On 4 July 2002 the respondent granted the applicant a wage increase and formally thanked him for his past contributions to the respondent’s operations. In a letter to the applicant the respondent indicated that it “very much look (sic) forward to your continued commitment in achieving the goals of Hyatt Regency Perth” (Exhibit R1 Letter dated 4 July 2002). The respondent also discussed the option of the applicant undertaking a bell attendant position around this time. These actions are hardly the actions of an employer wanting to force an employee to resign from his or her employment. 4120 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 54 I find that the contents of the applicant’s termination letter are not indicative of an employee who was being pressured to resign. The letter was in pleasant terms and the applicant indicated that he would be happy to continue working with the respondent on a casual basis. Even though the applicant stated that he wanted to leave the respondent on good terms and the termination letter was written in such a way to avoid possible repercussions, apart from the issue relating to the applicant’s car being searched, there was no evidence given in these proceedings that the respondent had acted vindictively towards the applicant both before and after he resigned. Even though I have found that Mr Lohse instructed Mr Appleby to search the applicant’s car on 3 October 2002 when he returned his uniforms to the respondent, I am at a loss to understand why Mr Lohse would do this given that the applicant had already handed in his notice. However, I note Mr Tomola’s evidence that there was some discussion about the applicant having some documents relating to the respondent’s operations that may well have been a concern to the respondent. Given that this issue is not relevant to the applicant’s claim as it was not in dispute that the applicant resigned on 21 September 2002, I take this matter no further. 55 I am of the view that the applicant was a conscientious employee who was committed to his work and took his role as a security officer very seriously. I also accept the evidence of Mr Kardasz and the applicant that discussions took place with some of the applicant’s colleagues about frustrations that the respondent may have had with the applicant and vice versa. Notwithstanding these discussions, it is my view that the applicant had a negative perception of the respondent’s actions which in the circumstances was not warranted. I find that the respondent did not behave in such a way that it did not intend to be bound by its contractual obligations to the applicant. I therefore find that the applicant resigned of his own volition. It follows that there is no jurisdiction for the Commission to deal with this application. 56 An Order will now issue dismissing the application for want of jurisdiction. _________ 2003 WAIRC 10184