TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant submitted she was unfairly constructively dismissed and was seeking an order for compensation – applicant was employed as a full-time early childhood teacher – in 2016 a fellow employee made a bullying complaint against applicant – applicant subsequently stood down – in May 2016 applicant was diagnosed with anxiety and depression which was exacerbated after the complaint – investigation occurred and it was found that applicant had engaged in ‘low grade bullying’ – written warning issued – applicant thought outcome was harsh – during this time applicant produced a number of medical certificates which attested to her unfitness for work – on 5 December applicant’s lawyers wrote to respondent stating the respondent had denied the applicant the ability to continue with her career and in consequence the applicant had suffered psychological injury – a meeting was requested between the respondent and the applicant – on 20 December applicant’s lawyers wrote to respondent that the respondent had disregarded the request for a meeting and as a result, applicant had been left with no alternative other than to resign – applicant submitted she was forced to resign because of conduct, or a course of conduct, engaged in by the respondent – applicant submitted the conduct was ‘the refusal of the respondent to agree…to meet with the applicant and her representative to discuss what might be done to ensure her safe return…’ – Commission considered the Full Bench decision in O’Meara ‘that there. be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end’ – it is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment’ [O’Meara] – Commission found the applicant had a number of options or alternatives to resignation to contest respondent’s failure to take up her request for a meeting to discuss the basis for her return to work – Commission referred to the Dispute Settlement Procedure as a mechanism to resolve disputes and noted that if dispute unresolved internally, they can be referred to the Commission – Commission found it could not be fairly said the applicant had no other choice than to resign – found applicant was not dismissed from her employment with the respondent within the meaning of s.386 of the FW Act – found there was no dismissal by the employer – application dismissed. Hoolahan v North Ryde Community Pre-School Inc t/a North Ryde Community Preschool
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