Abdallah v Merino Gold Limited
[1996] IRCA 497
•14 October 1996
DECISION NO: 497/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 6238 of 1995
B E T W E E N:
Fatmi ABDALLAH
Applicant
A N D
MERINO GOLD LIMITED
Respondent
REASONS FOR DECISION
14 October 1996 PARKINSON JR
This decision is in relation to an application made pursuant to Section 170EA of the Industrial Relations Act 1988.( “the Act”) The applicant alleges her employment was terminated without valid reason and for a reason prescribed by operation of s170DF(1)(f), that being for a reason related to her race or religion. The applicant also alleges that her employment was terminated in contravention of s170DC in that she was given no opportunity to be heard in relation to allegations made against her and further that she was given inadequate notice of termination of employment in contravention of s170DB of the Act.
The respondent denies that the applicant’s employment was terminated without valid reason and denies that the applicant’s race or religion formed any part of the reason for the termination of the employment.
The respondent contends that the applicant’s conduct and the operational requirements of the business led to the termination.
The applicant was employed by the respondent as a machinist at its clothing manufacturing premises at Brunswick. She was employed on 25 February, 1994 and her employment was terminated summarily on 8 December, 1995. The applicant performed a range of machining duties for the respondent, including linking until the onset of a repetition type injury sometime in 1995, the task of linking which requires much skill. The respondent’s business manufactures fine quality woollen garments for sale on the local and overseas market. The respondent employs a number of machinists and pressers, together with additional administrative and supervisory staff. Mr Katz, counsel for the respondent, opened by informing the Court that there was little known to the respondent of the applicants work history prior to May, 1995, as the business changed hands at that time and new management took over its operations. In June, 1995 the respondent employed Mrs Joan Taylor as workroom supervisor. Her duties included the immediate supervision of the applicant and all of the other employees in the workroom. Mrs Taylor has many years of experience in the industry, both as a supervisor and as a machinist.
The respondent contends that it had valid reason for terminating the applicant’s employment based upon the conduct of the applicant. The respondent contends that the applicant’s behaviour in the workplace and conduct directed to other employees was disruptive and divisive. It says that the applicant had been in receipt of a number of warnings in relation to such conduct and that there had been no improvement in her behaviour despite the warnings.
The respondent relies upon an incident on 8 December, 1996 which resulted in another employee indicating she was resigning and consequently leaving the workplace as the “final straw” in a long running dispute in the workplace. The respondent says it terminated the applicant’s employment for matters related to her conduct. It says that her conduct in the employment was disruptive and divisive and consequently it was an operational requirement of the business that the applicant’s employment be terminated so that it was able to retain in its employ a more skilled worker than the applicant. The respondent also relied upon two written warnings which it said the applicant knew of as founding a history of unacceptable conduct on the part of the applicant.The applicant denied that such documents were given to her or that she was ever provided with the opportunity of reading or signing them. As to these warnings, the evidence does not satisfy me that the circumstances of the warnings were such that the blame, responsibility or accountability for the incidents alleged could be wholly or even substantially attributed to the applicant. The circumstances were that the applicant was the only person selected for receipt of the warnings. The incidents, which were the subject of the warnings, related to conflict in the workplace between the applicant and in particular one other employee, a Mrs Di Bella. I am satisfied that other employees, in particular Mrs Di Bella, also engaged in screaming at and abusing of the applicant on occasions. I comment later in this decision as to the basis for such a finding, when considering the evidence of Ms Mells, Mrs Di Bella and Mrs Mercuri. I am not satisfied that the evidence establishes on balance a course or history of conduct attributable to the fault of the applicant which would entitle the respondent to rely upon a final warning, no matter what the degree of seriousness of the conduct.
On 8 December, the incident occurred which resulted in the termination of the applicant’s employment. The evidence was that on that day the applicant was at her machine when another employed made what the applicant described as derisive gestures towards her by resting a piece of cloth on her head and thereby commenting upon the hat that the applicant was wearing. The applicant reacted to this teasing as she had previously reacted. Her reaction was to become upset and to abuse the other employee.
The applicant was one of the longer term employee’s of the respondent. She was an employee who no doubt had some personality differences with a number of the employees of the respondent and I am satisfied that her conduct, in particular her manner and reaction towards other employees, had been the subject of discussions between her and the respondent. I am also satisfied that the applicant was warned on at least one occasion as to her reactions and sensitivity to the words of others. I am satisfied that the applicant’s background including the trauma she had suffered in her former homeland, contributed to her sensitivity to the teasing she endured from other employees. I have no doubt that the applicant reacted differently or in a more extreme manner to this teasing, to the way in which most of the other employees would have reacted.
Evidence was called from Mrs Di Bella who most frequently engaged in argument with the applicant and who was the employee who left the respondent’s premises after the dispute with the applicant on 8 December. Another employee of the respondent and friend of Mrs Di Bella, Mrs Mercuri also gave evidence as to her own and Mrs Di Bella’s relationship with the applicant. The evidence of both of these witnesses was to deny any participation or contribution to any of the incidents involving the applicant. Even the evidence of Mrs Taylor and Mr Mathews as to the incidents they observed, by implication concedes some contribution or involvement on the part of Mrs Di Bella. The evidence of Ms Mells, another employee of the respondent and friend of the applicant, is that there were a number of occasions when there was contribution and hostility on the part of Mrs Di Bella. I found Ms Mells to be a most helpful witness and generally preferred her evidence in the proceedings. Having regard to the evidence of Ms Mells as to the relations between the applicant and Mrs Di Bella, I am satisfied that the applicant was not the only protagonist or participant in the conduct. Whilst I accept that Mr Mathews and Mrs Taylor had gone some way to address the problems, the net effect of the approach taken was that the applicant was attributed the blame for the incidents and there was no disincentive to Mrs Di Bella to continue to relate to the applicant as before.
I did not find Mrs Di Bella to be an entirely satisfactory witness. Whilst I appreciate that she was anxious in coming to Court, I formed the view that she was not forthcoming with her evidence and that she did not respond frankly to the matters put to her. Her evidence was that she engaged in light-hearted, but generally warm and friendly relations with the applicant. Her evidence was that the applicant reacted unreasonably. It is clear to the Court that there were aspects of this witnesses treatment of the applicant which assisted in creating the distress of the applicant and it is also clear that this witness was a participant in the conduct and not merely an innocent observer being targeted by the applicant for no good reason.
I am not satisfied that the incident on 8 December, 1996 constituted conduct on the part of the applicant which would warrant termination of her employment. The incident of itself was not of a serious nature and the action of the respondent in terminating the employment reflected a lack of proportion on the part of the respondent in terms of the penalty imposed. The catalyst for the termination of the applicant’s employment was not in fact the conduct of the applicant in reacting to the teasing from other employees, but the resignation from the employment of the other employee, Mrs Di Bella, who was highly valued by the respondent as a skilled fine wool linker. It is apparent from the evidence that had she not left the premises on that day, the applicant’s employment would not have been terminated by the respondent. To this extent in my opinion this constitutes the act of terminating the employment as capricious in the sense contemplated by Northrop J in Selvachandran v Peteron Plastics (1995)62 IR 371.
There is no doubt that there was a personality difficulty between the applicant and Mrs Di Bella and it is clear to the Court that it was a mutual difficulty and not one merely attributable to the applicant. It is also apparent to the Court that prior to the termination of the employment there were no positive steps taken by the respondent to diffuse the situation between the two employees. The evidence is that Mrs Di Bella returned to the workplace after the applicant’s employment was terminated. No steps were taken by the respondent to attempt to resolve the issue on that day. Rather the respondent took a decision to terminate the applicant’s employment as apparently the most convenient way to resolve the problem. There was no attempt to ascertain who or what had caused the difficulties which arose between the two women. It was clear that the respondent assumed that the applicant had been entirely at fault. I am not satisfied that this was the case and in a dispute such as this between two employees, who are otherwise good employees, it would appear that such a conclusion would not have been an obvious one or easy for the respondent to establish.
I have considered the written submission of counsel in relation to The State of Victoria v The Commonwealth of Australia (1996) 138 ALR 129. I am satisfied that the approach of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 continues to be appropriate to be applied. I am assisted in this regard by a recent decision of Lee J in Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996) wherein his Honour considers the approach to be taken to s170DE(1) of the Act. It is clear from these decisions that for a reason to be valid it must be well founded and of substance and not capricious. I am satisfied that the reason must also be considered in the context of the penalty of termination of employment which is to be applied. That is, a trivial misdemeanour, even if established to have occurred, may not constitute valid reason for termination of employment.
Having regard to the above matters, I am not satisfied that the termination of the applicant’s employment was for valid reason. Consequently I am satisfied that there has been a contravention of s170DE(1) of the Act.
I turn now to briefly consider the matters arising out of s170DF(1)(f). I am satisfied that the reason for the termination of the employment did not include, the applicant’s race or religion. This allegation was denied by Mrs Taylor and Mr Mathews. The evidence of Mrs Taylor and Mr Mathews was firm as to the reason for the termination of employment, that is the conduct of the applicant and the effect upon the workplace of that conduct. I accept that this was the reason relied upon. I am satisfied that, whilst there may have been on a limited number of occasions where derogatory and inappropriate observations were made about various ethnic groups, this conduct was not designed or intended to create an effect upon the applicant which in some way, either expressly or systematically, contributed to or led to the termination of the employment. On balance I am satisfied that the respondent did not have as part of its reason for the termination of the employment, the applicants race or religion.
As to matters arising from s170DC of the Act, I am satisfied that the applicant was entitled to the benefit of that Section. The respondent in part described the termination as being for the operational requirements of the business. That is, the need of the business to maintain a harmonious workplace. This may be so, but the applicant was selected for the termination as a result of matters related to her conduct and consequently s170DC applies. See in this regard Kenefick v Australian Submarine Corporation (unreported, IRCA, The Full Court, 26 March 1996)
I am satisfied that the respondent terminated the employment without hearing the applicant’s version of the events of that day. The applicant was given no opportunity to explain or to be heard as to the why she should not be dismissed. The applicant was told she was being given one weeks notice and on the evidence of Mrs Taylor was not given a reason for the notice of termination of employment. It is clear that the applicant did not understand that her employment had been terminated, when she attended for work on the day after the expiration of the notice period. Further, having regard to the applicant’s language difficulties, I am not satisfied that the information was adequately or fully conveyed to her. Nor am I satisfied that in the circumstances of the applicant’s apparent language difficulties that a true opportunity was given to her to be heard in relation to the allegations as to her conduct or as to the intended consequences. I am satisfied that the applicant was not given an adequate opportunity to be heard or to respond to the allegations made as to her conduct and I am satisfied that there has been a contravention of s170DC of the Act by the respondent.
I turn now to consider the question of remedy. The applicant is 32 years old and speaks limited English. She has been in this country since 1993 and this employment with the respondent was her first employment. The applicants average earnings with the respondent were I am satisfied, $369.40 per week. The applicant obtained alternative employment in July 1996 after commencing to seek employment in approximately February, 1996. Having regard to the alternative employment, I am satisfied that an Order for reinstatement would be impracticable. I turn now to consider whether any Order for compensation ought be made. I am satisfied that the applicant as to work performance was a good and reliable employee of the respondent, and there is no evidence that she had been the subject of any notable conflict with other employees until the occasion of the employment of Mrs Emilia Di Bella. I have earlier found that there was significant contribution on the part of Mrs Di Bella to the discord, and that such discord was not entirely the applicant’s fault, however in view of the difficulties with Mrs Di Bella, I am not satisfied that the employment was likely to continue for any length of time. This I have concluded having regard to the applicant’s unhappiness with the other employees of the respondent, including her supervisor Mrs Taylor. I am satisfied that the applicant’s employment would not have continued for a period greater than 6 weeks beyond the date of the termination of the employment and that is the period in respect of which I propose to order compensation. In coming to this conclusion I have taken into account the payment in lieu of a two week notice period accorded the applicant. I am satisfied that an Order for compensation ought be made. The amount of compensation I will order is in the sum of $2,216.40.
I certify that this and the preceding eight (8) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate : Paul Ferguson
Dated : 14 October 1996
APPEARANCES
Counsel appearing for the applicant : Gary Katz
Solicitors for the applicant : Gary Katz & Associates
Counsel appearing for the respondent : Mr. M. Goldblat
Solicitors for the respondent : Antony Sdrinis & Co.
Dates of hearing : 18, 19, April & 19 July 1996.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 6238 of 1995
B E T W E E N:
Fatmi ABDALLAH
Applicant
A N D
MERINO GOLD LIMITED
Respondent
MINUTES OF ORDERS
14 October 1996 PARKINSON JR
THE COURT ORDERS THAT:
Pursuant to Subsection 170EE(3) of the Industrial Relations Act 1988 the respondent pay to the applicant the sum of $ 2216.40 in compensation.
The time for payment be 21 days from the date of this Order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
- VALID REASON - whether termination for PROHIBITED REASON - whether given OPPORTUNITY TO RESPOND - whether for OPERATIONAL REQUIREMENTS -
Industrial Relations Act 1988, ss170DB, 170DC, 170DE(1), 170DF(1)(f), 170EA,
Kenefick v Australian Submarine Corporation
(unreported, IRCA, Full Court, 26 March 1996)
Nettlefold v Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996)
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
State of Victoria v The Commonwealth of Australia (1996) 138 ALR 129.
ABDALLAH v MERINO GOLD LIMITED
VI 6238 of 1995
Before : PARKINSON JR
Place : MELBOURNE
Date : 14 October 1996
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