Allen v Taxigon Pty Ltd

[1997] IRCA 292

DECISION NO:292/97

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - Termination of Employment - whether termination at the initiative of the employer

Slifka v J W Sanders Pty Limited (1995) 67 IR 316
Mohazzab v Dick Smith Electronics Pty Ltd(No 2) (1995) 62 IR 200
Apesma v David Graphics Pty Ltd (unreported, IRCA, Wilcox CJ, 12 July 1995)
Rheinberger v Huxley Marketing Pty Ltd  (1996) 67 IR 154

ALLEN v TAXIGON PTY LTD

VI 2754 of 1996

Judicial Registrar Ryan
Melbourne
12 November 1997

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI-2754 of   1996

BETWEEN:	ALLEN APPLICANT
AND:	TAXIGON PTY LTD RESPONDENT
JUDICIAL REGISTRAR:		RYAN
DATE OF ORDER:		12 NOVEMBER 1997
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

That the application be dismissed.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VI-2754 of 1996

BETWEEN:	ALLEN APPLICANT
AND:	TAXIGON PTY LTD RESPONDENT

JUDICIAL REGISTRAR:	RYAN
DATE:	12 NOVEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE APPLICATION
The applicant seeks relief in respect of termination of employment. Her application under s170EA of the Workplace Relations Act 1996 (the Act) indicates that she worked for the respondent as a senior sales assistant from 29 April 1996 to 12 October 1996. Under the heading “Brief Summary of Reasons Given for Termination” is the following statement:

“Tattersalls objected to continued employment following allegation of shortfall in takings. No explicit reason given: forced to resign.”

RESPONSE
A director of the respondent company, Sam Joske, filed a Notice of Employer’s Appearance which contained the following statement as “Summary of reasons given for termination”.

“She resigned as a result of conflict with other staff member.”

THE EVIDENCE
The applicant and Mr Joske gave evidence. The applicant called Ms Mirjana Milanovic as a witness. Mrs Karen Joske gave evidence for the respondent. She is a director of the respondent company and the wife of Mr Joske.

The evidence does not confirm the applicant’s claim that “Tattersall’s objected to continued employment” or Mr Joske’s claim that the “applicant resigned as a result of conflict with other staff member”. There are a number of conflicts in the evidence.

The evidence and the conflicts are addressed and analysed in terms of

• the employment

• the events of Monday 14 October 1996

• the events of Tuesday 15 October 1996

• a conversation between the applicant and Mr Joske on or about 21 October 1996

• a conversation between the applicant and Mr Joske in November

• whether on 15 October the respondent terminated the employment of the applicant or the applicant ended the employment at her own initiative.

The crucial issue is one often addressed in cases like this. In terms of the vernacular, did she jump or was she pushed? The question was so described in Slifka v J W Sanders Pty Limited (1995) 67 IR 316 at 316 and 317:

“A remedy may only be given under s170EA(1) in respect of a termination of employment. Section 170EA(1) forms part of Div 3 of Pt IVA of the Act. By operation of s170CB of the Act, the expression “termination of employment” bears the same meaning in s170EA(1) as in the Termination of Employment Convention. Article 3 of the Termination of Employment Convention provides that the expression means “termination of employment at the initiative of the employer”. The parties have conducted the review on the basis that there has been a termination of employment and the primary issue is whether it was at the initiative of the employer. The applicant bears the onus of proof on this issue.

In most cases the words “at the initiative of the employer” need no elaboration or explanation. They have a readily understandable ordinary meaning. When an employer gives an express notice of termination there is usually no debate. It is clear that the termination was at the initiative of the employer. Where the employee gives an express notice of termination there is similarly usually no debate. The termination was at the initiative of the employee.

In the present case neither party gave an express notice. In view of all the actions of Mr Sanders in October and November 1994, the applicant concluded that the respondent would not have him back to work after 28 November 1994. Consequently, he did not return to work. Did he jump or was he pushed? He must establish his case, and he must do so on the balance of probabilities.”

THE EMPLOYMENT
It is common ground that

• the applicant asked Mr Joske for a job

• Mr Joske agreed to employ the applicant

• the applicant worked for the respondent from 29 April to 12 October

• the applicant’s duties in the respondent’s Tattslotto and sub-newsagency in the Broadmeadows Town Centre included, from time to time, opening the premises, bringing in the newspapers, counting, displaying, and selling papers and magazines, placing the cash float in the Tattersalls drawer, placing scratch tickets out for customers to buy and ensuring that the computers and Tattslotto machines were operational and liaising as required with sales representatives

• the applicant was provided with a set of keys so that she could open and close the store and she opened the store on Friday mornings and closed it on Monday and Tuesday nights

• closing the store entailed preparing the float for the next day and placing it and the scratch tickets in a locked cabinet, counting and recording money from the Tattersalls drawer and placing it in a safe, counting the newsagency takings and placing them in the safe, turning off the Tattslotto machines and photocopying and faxing reports from them to Mr Joske at his home

• Mrs Joske worked in the store on Wednesdays and on Thursday and Saturday afternoons

• Mr Joske attended daily at varied hours

• two other employees had keys and similar responsibilities (Anne and Fab)

• other employees working at the store while the applicant was an employee included Toni, Melissa, “Mooch”, Monica and Sharna

• the applicant finished her work on Saturday 12 October at approximately 6.00 pm

• Mrs Joske closed the store and secured the premises some time later on the evening of Saturday 12 October

THE EVENTS OF MONDAY 14 OCTOBER
Mr Joske was a voluble, excitable and nervous witness. It was not always easy to follow the thread of his evidence. Most of his evidence is clearer when examined from the transcript. It is uncontested that about 10.00 am on Monday 14 October he cleared out the safe and banked the takings. He stated that he then telephoned his wife and that she identified a discrepancy of $2,500 in 100 dollar notes. Even in transcript it is difficult to follow whether Mr Joske is giving evidence of his recollection of the denomination of bank notes taken from the safe and banked or whether he is simply giving examples of denominations. At one stage (T51) he seems to give evidence of $1,500 in 100 dollar notes banked with his wife advising him in the telephone conversation that there should have been $4,000 in 100 dollar notes. Mr Joske accordingly identifies a shortfall of $2,500 in 100 dollar notes.

Mrs Joske gives much clearer evidence. Her evidence is supported by a record, a safe sheet (Exhibit R1) which she had prepared at the conclusion of business on Saturday 12 October. Her evidence is also supported by a search warrant (Exhibit A1).

She states that she telephoned her husband on 14 October because she is an accountant and there had been “a problem with balancing”. (T83)

“My husband banks on Monday and I rang him up to make sure because we’d had a problem with balancing. So I rang him up to make sure that he had banked - I do the bank - I’m an accountant. So I rang him up and I just checked what he banked and what I thought should be banked and there was a discrepancy. So I said “It doesn’t sound right.” So we went through the denominations of what I closed with on Saturday night and what he opened with on Monday morning which was the last trading times and there was $2,600 missing from when I closed on Saturday and when he opened on Monday”.

The actual discrepancy is of no moment but the safe sheet (Exhibit R1) and the search warrant (Exhibit A1) suggest that Mrs Joske identified a shortfall of $2,600 in 100 dollar notes with $2,000 in 100 dollar notes banked and $2,600 missing and unaccounted. The Court accepts her evidence. The Court accepts that she rang her husband and not the reverse. The Court considers the inaccuracies in the evidence of Mr Joske in these areas were inadvertent and that he genuinely recalls a shortfall of about $2,500.

Mr Joske states that he called the police “fifteen to twenty minutes” after the discovery of the missing money. He then advised Tattersalls by telephone.

He states that he rang the applicant after he received a message passed to him from Anne (another employee). The message appears to have been by telephone from the applicant and was described as follows by Mr Joske at T54

“She had rung after we had found the money was missing to say that she had misplaced her keys.

After I had been told I rang her and asked her about the keys. It would have been around lunchtime I suppose.”

Mr Joske claims that he discussed with the applicant a sales meeting which had been scheduled for the evening of Monday 14 October. Later in his evidence he described the meeting as very important to him and that he had worked and planned for it for some time. However, he states that when the applicant asked him about this meeting he said (T54)

“Because of what had happened I just said: Look, I don’t know what is happening with the meeting for the time being, I just don’t know. We will speak during the afternoon and we will establish it later on. I mean, it was, like, very traumatic for us to obviously lose the money and I wasn’t sure what we were going to - whether or not we were going to postpone it that day, whether or not, whatever. I had no idea what we were going to do at that meeting that evening. I had, you know, my mind was sort of set on that money. I thought maybe I’d misplaced it somewhere or something had happened.”

The applicant stated that on Monday 14 October she had a conversation with Mr Joske out the front of the newsagency. She claims that she “just went down shopping”. She was asked by her counsel (T6) whether it was “just a coincidence that she bumped into Mr Joske”. She did not answer the question directly but replied as follows:

“No, I quite often used to - on my days off or whatever before working used to go and say hello and speak to the girls and that. It was a nice friendly atmosphere to work in and I got along well with everybody and everybody got along well with everyone else. That’s not to say that we didn’t have our problems because we did, but generally on the whole we all got along very well together”.

The applicant also stated that later “in the afternoon” Mr Joske rang her “at home”. Her evidence is as follows:

“He told me that the meeting that had been planned for that evening had been cancelled under the circumstances and I said, okay then. And he said, was I going to be home because the police wanted to talk to me and I said yes. He said, okay then, I’ll see you tomorrow as I was due to start work again.”

The Court observed that the applicant has already described Mr Joske as telling her “in the morning outside the agency” at a meeting which, on her own evidence, seems to have been a meeting by chance, that the police were going to interview everyone and asking her if she would be at home. It seems curious that Mr Joske would then in the afternoon in a telephone conversation ask her once more if she would be at home and tell her again that the police wished to talk to her.

At this stage, her counsel asked the applicant about the meeting which, according to her evidence, Mr Joske had rung to say was to be cancelled. The applicant responded that the meeting had been arranged “the week before...for the Monday night...at 6.00 pm” and that “Sam told us all that we were to attend - the whole lot of us”.

She also said

“There was a meeting - we were all going to be taught new operating procedures for the Tattslotto as Sam had been having trouble balancing the Tattslotto Agency money. There - money had been going missing or something from there, and we were going to be taught a new procedure.”

Again, the comment that “money had been going missing or something from there” seems a curious comment to make in respect of a meeting which Mr Joske described as “a sales meeting”.

The applicant states that about 5.50 pm on 14 October the police searched her home. She identified the search warrant issued at 4.59 pm (Exhibit A1). She stated that after the police left she rang one of her work mates, Toni. Her evidence continued as follows (T8-9)

“After that I rang up Toni who was one of the people who worked there. Her husband answered the phone - Paul, and I asked if Toni was home. And he said, no she’d gone to the meeting and I said, “But I’d been told that the meeting had been cancelled” and he said, “No, not as far as I know”. So I hung up. I left home and I went down to the shopping complex where I saw one of the security officers and asked if the meeting was still going on and he said, yes. I went around to where the meeting was and walked in and said, “Well, my house has been searched, has anybody elses?

They were all sitting down at a table in the conference room at the complex - every employee and Sam and Karen except for myself.

Sam got up and he took me out to the hallway, where he proceeded to have a conversation with me. I just said, how come my place was the only one that was searched? How come I wasn’t included on the business meeting? He told me that Tattersalls had instigated the search and that he was sorry and that it had nothing to do with him and then Karen came out saying that she couldn’t trust me anymore.

I said, well I hadn’t done anything and why was it only my house that was searched and no-body elses and I don’t know whether anybody else was questioned by the police or not because I wasn’t informed. I said, well, what did they want me to do. I asked them if they would like to take a couple of days out - off until the matter was sorted out. Sam said, yes, it would be a good idea, and Karen turned around and said that a couple of days off would be a good idea so that I could get my life back into order. Sam said he would phone me in a couple of days, and I said, okay, fine.

I did not go home, I went to bingo actually...about 6.45 I got over to bingo. The conversation (with Mr and Mrs Joske) was about 6.35 or 6.30. It only went for about five minutes.”

Both Mr and Mrs Joske gave evidence about the conversation outside the conference room.

Mr Joske stated (T56)

“She came in (into the conference room) and she said....They searched my house, they didn’t find anything. Basically, what she was saying was obviously disruptive. I said: Look, Debra, come outside and we’ll talk about it outside. Karen, my wife came outside with me. She (the applicant) said: What shall I do? Shall I resign, should I take a couple of days off? I just said: Look, I think the best thing to do is to take a couple of days off, paid days off, let the thing blow over because nobody was accusing anybody of anything, let it blow over and see what happens. That is where we left it and then she left. She said there to Karen that she found the keys under her daughter’s bed.”

In cross-examination Mr Joske said (T69)

“From what I remember of the conversation, it was very, very quick. It was quick because I had people inside there. She said: Look, what should I do? Shall I resign? I suggested that she take a couple of days off because I though it was all getting too much. I just said: Look, do the right thing. Take a couple of days off - paid days off and then we will see what happens.”

Mr Joske was asked by counsel for the applicant whether he could recall his wife saying something like, “It would be a good idea (for the applicant to take a couple of days off)...to let things settle down at home”.

Mr Joske replied that he could not recall his wife saying, “Something like that”. He said (T69)

“She may have but I cannot really recall. She (the applicant) was rostered for the next week. I had already done a two week roster. She had already been rostered for the next week, starting Thursday. And that was basically the plan. The plan was that on Thursday she would start working again.”

Mrs Joske’s evidence was as follows (T86)

“Well she arrived at the door in a bit of a state and my husband and I went outside because we could see she was going to start to get excited in front of everybody and we didn’t want it to be public so we went outside and we spoke to her. She was screaming and yelling and getting excited. I can’t remember which one of us, but I know I was getting upset, asked what had happened to the key because she had reported the key missing to Sam in the morning and she came to the meeting that evening claiming that the key was found under the bed. The kids had played with the shop keys and they were now found under the bed. Then she said, what do you want me to do, do you want me to quit, what do you want me to do, what do you want me to do? We said, no look, don’t quit.

Sam said: Don’t quit, take a couple of days off and let’s work it out and see what happens.

I know I spoke about where the keys were. It was all we really discussed. It wasn’t a very long discussion. I don’t think she was in a state to have much more of a discussion.”

In cross-examination Mrs Joske said (T87)

“I definitely knew that the search warrant had been executed and I was definitely concerned about the keys.”

THE EVENTS OF 15 OCTOBER
The applicant gave evidence that Mr Joske rang her about 1.15 pm on 15 October and indicated a need to talk to her and suggested that they meet in the food court of the Broadmeadows Town Centre about 2.00 pm. The applicant claims that

• she arrived about 1.50 pm

• Mr Joske came about 2.05 or 2.10 pm

• Mr Joske got something to eat and they sat down at a table

• she got the keys to the shop out of her bag and put them on the table in front of Mr Joske and said (T10)

  “I said to him that I didn’t want the responsibility that went along with the keys to the shop if every time something went missing that I was going to get the blame for it or be accused with it.”

Her evidence continued as follows (T11)

“He said that he knew that I wasn’t responsible for the money going missing or anything. I told him that I just wanted to go back working in the store just as a plain ordinary worker and he said, how could he explain to Tattersalls why I was working there and not handling any of the money - they just wouldn’t have it.

He also said that because of the unfair dismissal laws that he could not sack me because he had just previously gone through an unfair dismissal case with the previous employee...and he didn’t want to go through that again.

I said, well, what do you want me to do? Do you want me to resign, I said, because I’m not resigning. I haven’t done anything and I don’t see why I should resign.

He said that Karen (Mrs Joske) didn’t want me working there any more because she felt she could not trust me. And once again I said to Sam, are you asking me to resign? And he said: I can’t see any other way out of it.

He also said that he didn’t want it to be this way, that he was sorry. I asked him; did he want me to sign anything to say that I had resigned, and he said, no, sorry. He said just a handshake would be fine. He told me to come back in a couple of days time to pick up my wages and that was it. I was pretty upset and I was crying.”

The following exchange took place in cross-examination (T35)

Mr Shaw: I put it to you that at your discussion back on 15 October, you told him that you would take it no further?

Applicant:No, I didn’t.

Mr Shaw:On that day when you left, you gave him a hug and kiss?

Applicant:I did.

Mr Shaw:Right, and it was left very amicably?

Applicant:Yes, it was.

Mr Shaw:Your evidence...was that you were crying at that stage?

Applicant:I was.

Mr Shaw:So you were crying, but it was amicable?

Applicant:I was crying because I was upset.

After re-examination, Mr Shaw cross-examined again and the following exchange took place (T42)

Mr Shaw:You spoke to Mirjana (Milanovic) on the way to the meeting on the 15th and you said to her that you thought Sam was going to sack you? Now, was that your belief? Did you believe that at the time?

Applicant:Yes, I did.

Mr Shaw:So you were prepared for him to try and sack you?

Applicant:Yes.

Mr Shaw:And yet you are telling the Court that you simply agreed to resign at his request?

Applicant:I didn’t simply agree. He told me that he wouldn’t sack me because of the unfair dismissal laws and what he had been through with Sophia. I replied to him, are you asking me to resign? And I said, because I am not going to resign.

Mr Shaw:But then you did?

Applicant:Only after being forced by Mr Joske.

Mr Shaw:Forced?

Applicant:He said there was no other alternative.

Mr Shaw:Well, there was an alternative; you could have just stayed there. You were ready for it, apparently, according with your conversation with Mirjana?

Applicant:I would loved to have stayed there; I really enjoyed that job. If I had the choice I would still be there but I was given no choice. I was asked to resign because Sam didn’t want to sack me because of unfair dismissal laws.

Mr Shaw:So you did him a favour or (had you)...actually already planned to take this action?

Applicant:No, I didn’t.

Mr Shaw:So you did him a favour. You resigned on that day because of the unfair dismissal laws?

Applicant:Well, at the time I felt sorry for him because of the stuff he had been through with Sophia and that. When the matter was going on with Sophia, Sam was walking around almost pulling his hair out on some days because of what was going on.

Mr Shaw:Right, and you are saying you are ready for him to try and sack you but to be nice to him because he was pulling his hair out you agreed to resign? He just said I can’t sack you because of the unfair dismissal laws, there’s no alternative, and then you just did it?

Applicant:No, I didn’t I just said I don’t want to resign. Why should I have to resign? He did say he didn’t have any alternative. How was he going to explain to Tattersalls that I was still working there.

Mr Joske agrees that he met the applicant in the food court on 15 October. However, he claims that the applicant telephoned him to arrange the meeting. This is the opposite of the claim made by the applicant. In other words, both participants in the meeting gave evidence that they did not arrange the meeting but came to the meeting because the initiative had been taken by the other.

Mr Joske’s evidence in relation to the meeting included the following (T57-T59)

“On the 15th, on the Tuesday, she called me. She was wanting to come in and hand over these keys that she had found. I agreed to meet her at lunchtime in the food court. She was very upset that she had been the one that had been targeted. She had been the one that had had her place searched. She wanted to know if anybody else had been searched and why was it her that had been searched. She was sort of intimating that Tattersalls had something to do with that. I said, look, I am not accusing anybody of anything. I have never accused anybody. I did the right thing. I gave you, I said to her, from the night before, a couple of days off. The plan was just take a couple of days off. I do not accuse anybody of anything. Let us clear the situation and we will see what happens. She kept on saying, look, I did not do it. I did not do it. I kept on saying, I never said and I never did accuse her of doing it. She found that whole situation untenable where everybody else knew that she got searched. I do not know how they knew it because I certainly did not say anything to them.

Apart from being upset...she resigned. She said, look I can’t stand here any more. I can’t stand being accused of taking the money. I am only the one that got the police hassle. Why not Fab and Anne? And I said look, I have got nothing to do with that. I understood her position. From what I could understand she felt that her position was compromised. This is the impression that she gave me. She said, look I am resigning. Simple as that. I am resigning and put down whatever you like as to why I resigned. I kept on saying to her look, I am not accusing you of doing anything. I said look anybody could have taken it. My wife could have taken it, I suppose, that is a possibility. I certainly did not accuse her and she was crying and we were hugging and kissing and she said look, I am not going to take it any further. I just can’t stand it any more.

I had built up a very good trust with her and I still had a very good trust with her. She just said, look, I can’t stand any more. She gave me a hug and a kiss and she was crying and I said look, you want to resign. I can understand that it is not a pleasant situation especially with Anne, and what had gone on. I said, I’ll give you a week, a week’s pay which I think was the right thing to do. So that in that time she could go and find another job. I said I would give her a good reference and I could understand where she was coming from. She kissed me and she said, I’m not going to take this any further. And that was that.”

In cross-examination Mr Joske was less certain that the initiating telephone call was made by the applicant on 15 October. The following is an extract of his evidence under cross-examination (T70-T72)

“I am pretty sure she called me. I can’t say 100 per cent. I am pretty sure she called me. I wouldn’t swear on my children’s life on it, no.

I don’t know what time (we met) - one o’clock, two o’clock, whatever time it was and I agreed. I wanted the keys back. I thought it were best if I had the keys back. I assumed the meeting was about the keys and to talk about what had happened. She gave the keys to me. She put them on the desk.

I never accused her of taking the money and I still don’t to this day accuse her of taking the money. She vehemently denied that she took the money. I didn’t accuse her but she kept on saying that I didn’t do it, I didn’t do it - why am I the only one being searched? She said that if that is what is going to happen every time money goes missing, she did not want the responsibility of having the keys.

She may have mentioned on the night before at the meeting that she was going to bring the keys in, possibly. It wasn’t a big issue to me because we had changed the locks anyway. She gave me the keys and said basically that she can’t handle being accused every time of stealing and that she was the only one that got searched. She said that she could not stand it any longer and she resigned.”

Counsel for the applicant cross-examined Mr Joske on the role (if any) played by Tattersalls in the termination of  the employment and on the nature of the termination.

The following is an extract from T72 to T76.

Mr Niall:         You were very concerned about Tattersalls and their security?
Mr Joske:        I am always concerned about Tattersalls and their security?

Mr Niall:And you must have thought, I suggest, that Ms Allen, Debra, was a prime suspect from Tattersalls point of view and from the police point of view. You must have thought that?

Mr Joske:That she was...that is why they searched her house.

Mr Niall:Yes, and the fact is that you could not have someone work with you who is a prime suspect of the police and Tattersalls?

Mr Joske:No, that wasn’t the point at all. The point was that nothing had been proven and I said to her that nothing had been proven and I also knew that just because somebody makes an allegation you can’t...there’s nothing you can do about that.

Mr Niall:But you knew it was not just a matter of an allegation, Mr Joske. It was what Tattersalls would make of it, that was the important thing?

Mr Joske:Tattersalls have got no say in the running of the security of the place, other than if there is a real problem...you know they don’t normally interfere.

Mr Niall:I suggest to you that you and your wife must have feared that Tattersalls would regard Debra Allen as an unacceptable security risk?

Mr Joske:No, they didn’t know. They wouldn’t have known who Debra Allen was.

Mr Niall:You knew they would be interested in the police investigation and that at that point in time the police investigation was pointing towards Ms Allen. Would you accept that or not?

Mr Joske:I accept it. I want to tell them everything that went on with that because it is in interest to have everything brought out into the open and I didn’t want to hide anything from Tattersalls and I didn’t want to hide anything from the police. I didn’t want to hide anything from Debra, so I told them everything I knew.

Mr Niall:You said Karen (Mrs Joske) does not want you working there. She feels that she cannot trust you anymore. Is it possible that you told her that?

Mr Joske:There’s no way in the world I would have given any intimation that she was either going to be retrenched or sacked. All I said to her the whole time was, I don’t believe you did it.

Mr Niall:But you did tell her that your wife felt that she could not trust you but because of the unfair dismissal laws you could not sack her?

Mr Joske:I talked to her about unfair dismissal because I am scared as every other small businessman is scared. I said to her, look, nobody is going to do anything. I have given you a couple of days off. I wasn’t going to do anything that I thought would jeopardise her position, my position, any position. She resigned. I didn’t want to sack her. I never said I wanted to sack her.

Mr Niall:The position was that you did not want Debra to keep working for you?

Mr Joske:That’s not true at all.

Mr Niall:You told her that you could not sack her and she told you that she was not resigning?

Mr Joske:She did resign and she did tell me she resigned.

Mr Niall:Well, during the course of that meeting, she said, I am not resigning?

Mr Joske:She said she is resigning. That’s the whole point. She said to me, I can’t stand it any more. Why am I the only person being accused and she did resign. That’s exactly what she did do.

Mr Niall:What happened was that you said, what are you going to do, I can’t have you continuing to work? And she asked you whether you wanted her to resign and you nodded your head.

Mr Joske:She resigned and I accepted her resignation. That is exactly what happened. She resigned. She resigned to me. I never made her feel that she had to resign, no, absolutely not, absolutely not.

Mr Niall:I suggest to you that you said words (to the effect) that (you were) sorry (and what else could you do) other than get her to resign?

Mr Joske:There were lots of things I could do. I gave her three days off. I was hoping the whole thing would some how work itself out and I thought I was doing the right thing. She was crying and she hugged me and kissed me and said, “Sam, I am not going to take you any further”. I thought, well I have done the right thing, I’m going to give her a good reference.

Mr Niall:She never said on the 15th, I have to resign, or I want to resign because I don’t get on with Anne...because that is not why she resigned, is it?

Mr Joske:I don’t know why she resigned. I did everything I possibly could to not foster the situation. I did everything I thought was right.

TELEPHONE CONVERSATION BETWEEN THE APPLICANT AND MR JOSKE ON OR ABOUT MONDAY 21 OCTOBER
The applicant gave evidence that on Monday 21 October or Tuesday 22 October or Thursday 24 October Mr Joske rang her in relation to another matter and she stated that in the course of this conversation she told him that she “was going to take the matter further because (she) thought (she) had been unfairly done by and had been forced into something that (she) wasn’t happy doing”.

Her evidence continued as follows (T16)

“Sam literally begged me over the telephone not to take the matter any further, not to get solicitors involved, because of all the stuff that he had been through with Sophia. I said, okay then. He said, thank you. He said he would look after me and take care of me. That was the end of the conversation and he hung up but I had already started proceedings then to take the matter further anyway. I had already rung up and spoken about getting the papers sent out to me.”

It is clear from later evidence that the applicant was referring to “papers” which would assist her in lodging the claim of unlawful termination of employment which her solicitors in fact did lodge for her on 28 October. At this stage in her evidence the applicant referred to a telephone conversation with Mr Joske in early November 1996 and, at T17, in answer to a question from the Court admitted that in the telephone conversation on 21 or 22 October she had told Mr Joske that she would not get solicitors involved because she wanted “to lull him into a false sense of security. I had already rung up to have the papers sent out”.

Mr Joske gave no direct evidence of the telephone conversation on 21 or 22 October. The general tenor of his somewhat confused or discursive evidence was that about that time he saw the applicant in the hallway of the shopping centre and she told him that her husband wanted to take Tattersalls to Court. His evidence was as follows (T59-T60 and T77-T78)

“I get very nervous when anything is mentioned to Tattersalls. I said, look, please do not - Tattersalls had nothing to do with it. Please do not involve Tattersalls.

When I saw her in the hallway she said that her husband was thinking of taking Tattersalls to task. I know for sure 100 per cent that I saw her in the hallway. That’s what I do know. That I can obviously swear on. I know that I saw her in the hallway and she stopped me.

I remember saying to her that Tattersalls have got nothing to do with this at all. Besides, I was nervous. I didn’t like my name being mentioned at Tattersalls. I said look, you know what it will do to me if you start getting Tattersalls involved in this. Please don’t - you know there is no need - they had nothing to do with it. I explained to her at the time they had nothing to do with it. She said, okay then, or words to that effect. She said, I don’t know about Charlie (her husband). I don’t know what Charlie wants to do. All I know is he’s very mad at the moment.”

TELEPHONE CONVERSATION BETWEEN THE APPLICANT AND MR JOSKE EARLY NOVEMBER 1996
The applicant in her evidence stated that a few days after she lodged her application or claim of unlawful termination of employment that Mr Joske telephoned her again (T17)

“He rang up when he received his copy of the papers. He was ranting and raving over the telephone. He just went absolutely troppo at me. How could I do this to him. You said you weren’t going to take the matter any further. You weren’t going to get solicitors involved. He was just yelling over the telephone at me.”

Mr Joske admitted (T60) that when he received documentation from the Industrial Relations Commission he telephoned the applicant. His evidence was as follows:

“Yes I did telephone her because she had promised me at that Tuesday meeting (presumably 15 October) that we were not going to take this any further. I was upset that we had had such a good relationship. I did so much for her. She resigned on her own volition. She said that was going to be the end of the matter and then I find that I have got a legal letter saying that she’s taking me to the Industrial Relations Commission. I always thought I was still on a good enough basis with her to ring her up and talk to her about it.”

CREDIT
In cross-examination, the applicant stated that on the way to the meeting with Mr Joske on Tuesday 15 October she met Mirjana Milanovic in the food shop, Italia Mia.

Ms Milanovic works there. She claims that she declined a drink offered by Ms Milanovic and that Ms Milanovic asked her what she was doing down at the shopping centre.

The applicant responded in a way which is curious. It is curious in that it is not a matter she mentioned in evidence in chief and it is not a matter which Ms Milanovic mentioned in her evidence. The nature of the alleged response is also curious. The applicant, in cross-examination, said that her response to the query as to what she was doing down at the Centre was as follows (T39)

“She asked me if I wanted something to drink and I said no it was all right. She said, “What are you doing down here?” I said, “Sam rang me; I think he is going to sack me”. She said “Why?” I said, “I don’t know”. She asked me where I was going to be sitting and I pointed to the spot where Sam and I had agreed to meet and left and went over and waited for Sam.”

The Court asked the applicant why she had expressed the view to Ms Milanovic that she thought Mr Joske was going to sack her. The applicant replied (T39):

“Because when Sam had rung all he said to me was “We need to talk”. So I was just under this assumption that I was going to be sacked.”

The Court reminded the applicant that she had just given evidence that she had responded to a question from Ms Milanovic that she “did not know” why Mr Joske was going to sack her. The exchange concluded as follows:

Court: “But you told Mirjana  when she asked you why he was going to sack you that you did not know?”

Applicant:“No. I do know that once Sam’s wife, Karen, takes a dislike to someone and she says “Out”, well then that’s generally what happens.”

This last response seems to constitute a change of evidence. First, the applicant states that she told Ms Milanovic that she thought Mr Joske was going to sack her because he had rung up and said to her that they needed to talk and that she was “just under this assumption that (she) was going to be sacked”. Immediately thereafter, when pressed as to why she had told Ms Milanovic that she “did not know” why Mr Joske was going to sack her, she appears to imply that she had concluded that Mr Joske would dismiss her because “once Karen (i.e. Mrs Joske) takes a dislike to someone and says ‘out’, well then that is generally what happens”.

Ms Milanovic gave no evidence of a conversation of this type with the applicant before the meeting between the applicant and Mr Joske. Indeed, her evidence, at T44, is that on Tuesday 15 October at about 10.00 am she had a conversation with the applicant and asked the applicant why she was not at work because “I usually don’t see her so early in the morning”. Ms Milanovic’s evidence continued as follows:

“Well I asked her what she was doing there and she said she had to see her employer, Sam, to have a meeting with him and I said “About what?” She says, “About work”. Then she didn’t say much after that because Sam was coming from the opposite end of the food court and she left”.

I have concluded that Ms Milanovic’s evidence is more likely to be accurate in this aspect rather than the evidence of the applicant. If the applicant had told Ms Milanovic on her way to a meeting with Mr Joske that she thought he “was about to sack her”, Ms Milanovic could have been expected to remember such a statement and give evidence of it. One would also have expected the applicant to refer to this conversation in her evidence in chief and one would not expect her to give conflicting evidence of it when questioned about possible inconsistency.

I have concluded that the applicant’s evidence as to her conversation with Ms Milanovic before her meeting with Mr Joske bears hallmarks of recent invention. There were other examples of inconsistency in evidence given by the applicant. In general, where there are conflicts between the evidence of the applicant and the evidence of Mr Joske, I have preferred the evidence of the latter.

After a careful examination of the transcript of the evidence of the applicant and the evidence of Mr Joske I confirm the comments I made at the conclusion of the hearing that

• Mr Joske presented as a diffuse, difficult and mercurial witness but appeared (then and now) as a genuine witness

• the applicant was an unimpressive and inconsistent witness

Both the applicant and Mr Joske had experience of claims for relief in respect of unlawful termination of employment. The applicant admits that she had made such a claim against her previous employer and Mr Joske admits that he knew about that claim but still believed the applicant deserved a chance to work with him.

Mr Joske admits that a former employee, Sophia, had lodged a claim against the respondent alleging unlawful termination of employment.

After observing the applicant and Mr Joske, the Court finds it unlikely that the applicant, a woman with some recent experience in claiming for unlawful termination of employment, would have “resigned because of the unfair dismissal laws” or would have stated that she was resigning when that was not her real intention.

The Court does not accept that the applicant would have told Mr Joske she was resigning simply because “I felt sorry for him because of the stuff he had been through with Sophia and that”.

CONCLUSION
It is very difficult to determine precisely what happened on 15 October but the onus is on the applicant to demonstrate that the termination of employment was brought about by an action or initiative of the respondent.

The Court notes that the applicant did not call any evidence to support her claims that

• Tattersalls objected to her continued employment

• Mr Joske had told her that Tattersalls (not the Respondent) reported the missing $2,600 to the police (T26)

I have concluded that on 15 October the applicant brought the employment to an end herself. She was angry and upset because the police had searched her premises. I have concluded that within a few days she had determined to lodge a claim against the respondent on the basis of unlawful termination of employment and that on 21 or 22 October by telephone or in person she did tell Mr Joske that she was not going to proceed with such action but that, in her own words, she said that simply to “lull him into a false sense of security”.

She had entered into an arrangement with Mr Joske whereby an Employment Separation Certificate stated that she had ceased work voluntarily because of a conflict with another staff member. She had taken the certificate in that form and lodged it at the Broadmeadows counter of the Department of Social Security on 21 October 1996.

Mohazzab v Dick Smith Electronics Pty Ltd(No 2) (1995) 62 IR 200 at 205 establishes that “an important feature...of termination at the initiative of the employer...is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”.

This issue was addressed by Wilcox CJ in Apesma v David Graphics Pty Ltd (unreported, IRCA, 12 July 1995). His Honour, at page 3, referred to the situation of an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as

“a termination of the employment at the instance of the employer rather than of the employee”

At page 5:

“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.”

The termination of the applicant in this case can be distinguished from the termination in Mohazzab in that in the latter Mr Mohazzab was told by a security consultant, employed by the respondent, that the police would be “called in” if he did not resign. Here, even if Ms Allen’s evidence was preferred to that of Mr Joske, and it is not, Ms Allen was not given such an ultimatum. The police had been informed of a report of $2,600 missing and, as a result of inquiries, had obtained a search warrant and had searched Ms Allen’s residence.

On Ms Allen’s own evidence she offered to resign. True it is, in her evidence, virtually in the same breath, she stated that she would not resign. There is also evidence from Ms Milanovic that the applicant was upset and crying after her meeting with Mr Joske on 15 October and alleged that she had been “forced to resign”. However, after considerable difficulty and after a thorough examination of the evidence, I have concluded the applicant did decide to leave the employment herself, of her own initiative, and entered into an arrangement with Mr Joske designed to allow her quick access to unemployment benefits or a job search allowance.

Very soon thereafter she took action to claim relief against the respondent on the grounds that the respondent had unlawfully terminated her employment. The overall tenor of the evidence has led me to the conclusion that the respondent did not terminate the employment and that therefore the application must be dismissed.

I have also taken account of Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160 where Moore J said

“It is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”

I am not satisfied the termination of Ms Allen resulted from an action on the part of the respondent as employer intended to bring the employment to an end. I am not satisfied that the cessation of the employment relationship was the actual or probable result of the respondent’s conduct.

ORDER
The Court orders that the application be dismissed.

I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Ryan

Associate:

Dated:            12 November 1997

Counsel for the Applicant:	Mr R Niall
Solicitor for the Applicant:	Ryan Carlisle Thomas
Counsel for the Respondent:	Mr B Shaw
Solicitor for the Respondent:	Jack Cohen Serry & Co
Date of Hearing:	22 May 1997
Date of Judgment:	12 November 1997