Due to the fact that Mr Cook’s representation was unable to use unfair dismissal as an avenue in this case, they attempted to establish a termination by CPF Management under s43(4)(c)(i) and proposed using the concept of ‘constructive dismissal.’ This concept is used to portray the idea that “…although the Plaintiff resigned, it was in fact the conduct of CFP which brought about the end of the employment relationship.” Hence, the termination was bought about by the conduct of the employer.
Justice Williams observed that this concept has not been widely used in Australia. The expression has predominately been used in various English decisions. It is not recognised by the common law in Australia and there is no legislation extending the definition of dismissal to incorporate this term. He also stated that where there has been limited reference to this term in Australian cases it has been referring to conduct on the part of the employer which would amount to repudiation of the contract. Justice Williams referred to the English case of Spencer v Dowling and Anor [1997]. In this case Hayne JA found that one must not merely look to the form which the termination took, but rather one should look for what was the substantial cause of the termination.
Did the employer evince an intention no longer to be bound by the contract of employment? If this occurs without formal notice then the employee is ‘entitled to give a notice in effect electing to accept the employer’s repudiation.’ However, Justice Williams, did not believe that constructive dismissal applies and rejected this claim.
Court Findings
Justice Williams considered that in February 2003, control over CPF Management had changed. However, Mr Cook was still employed and that position was to continue for some time.
The Court found that Mr Cook wished to terminate his employment in order to begin employment elsewhere. It could not be said this was because CPF Management dismissed Mr Cook for a reason other than the respondent’s conduct, capacity or performance.
Hence Mr Cook was not entitled to recover any money for long service leave or money in lieu of notice. The appeal was allowed and the judgment at first instance was set aside.
Conclusion
This case further establishes that under Australian law the notion of ‘constructive dismissal’ is not widely used. It is not recognisedby common law and there are no statutes extending the definition of dismissal, in particular s43(4)(c)(i) of the Industrial Relations Act 1999 (QLD).