| Summary |
UNJUSTIFIED DISMISSAL – Constructive dismissal – No written employment agreement – Applicant’s workplace was respondents’ residential property – Applicant assaulted by first respondent’s son (“S”) – Assault occurred when S became agitated by applicant entering fax number at same time was conducting telephone job interview – First respondent’s wife (“B”) went to help applicant – Applicant again assaulted by S – B instructed S to go outside – S assaulted B – B rang first respondent who said ring police – Police intervened and first respondent “trespassed” S from property as considered had to protect applicant’s employee rights – Applicant left workplace to make statement to police and then sought medical examination from doctor – Applicant claimed respondents made no effort to raise incident next day – Respondents argued applicant returned to work despite opportunity to have time out – Applicant claimed subsequently assaulted and abused by first respondent – Applicant claimed respondents attempted to minimise matter and place blame with her – Incident occurred where applicant having discussion with B over how first assault occurred – First respondent unaware of applicant’s cost to attend doctor or that applicant sought meeting – First respondent upset and thumped table in response to applicant thumping table, swearing, and becoming emotional – Respondent accepted called applicant a “stupid cow” – First respondent denied saying “if his son had not hit applicant he would have” as claimed by applicant – Applicant left workplace and did not return – Authority made credibility findings of applicant, first respondent, and B – Authority found applicant had not established allegation of being assaulted second time – Found more likely first respondent did not swear at applicant – Found first respondent emphatically denied allegation, composure never slipped, and never seemed likely would swear – Found just because heated discussion occurred did not lead to conclusion applicant verbally assaulted – Authority found B’s query about first incident understandable in context of relationship with applicant – Authority found although first respondent and applicant upset after discussion not enough for applicant to decide to resign – Found in absence of finding first respondent assaulted applicant could not be finding applicant forced to resign due to breach of trust and confidence and that resignation foreseeable – Authority found conclusion supported by second respondent continuing to pay applicant until apparent problem not going to be resolved, that first respondent “trespassed” S, and agreed to mediation when requested – Authority found first respondent acted immediately on hearing about assault and accepted without hesitation was disgraceful and inappropriate – Found with that knowledge unlikely first respondent would have escalated matter by assaulting applicant as claimed – Found mediation alternative option offered at time of resignation – HEALTH AND SAFETY – Authority found respondents had responsibility to meet minimum health and safety requirement to protect applicant in employment – Found first respondent could have done more to try avoid risk of tension escalating – Found was foreseeable risk but not fatal in employment relationship because place of work family home, which applicant accepted and also accepted S would be there – Authority found arguable first respondent did not provide applicant with sufficient amount of support after first assault – Found perhaps respondents could have insisted on applicant taking time off, however, omission could not be held against respondents given applicant returned on own volition – Found applicant chose to return to work when could have stayed away and S banished – No constructive dismissal – Administrative manager/Filing clerk |