Allied Express Transport Pty Ltd v Anderson, Michelle

[1997] FCA 1091

FEDERAL COURT OF AUSTRALIA

EMPLOYMENT LAW - Termination of employment - Alleged unlawful termination - Employee terminated for returning to former work station after instruction not to do so and for lying to general manager about her movements - Whether employee did these things - Circumstances surrounding her removal from former work station - Factors motivating decision to terminate.

Industrial Relations Act 1988, (now Workplace Relations Act 1996) ss 170DB, 170DC and 170DE(1).

No. NI.97/1080R
ALLIED EXPRESS TRANSPORT PTY LIMITED v MICHELLE ANDERSON

JUDGE:  WILCOX J
PLACE:  SYDNEY

DATE:  22 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI.1080R  of   1997

BETWEEN:	ALLIED EXPRESS TRANSPORT PTY LIMITED Applicant
AND:	MICHELLE ANDERSON Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	22 OCTOBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of Judicial Registrar McIlwaine of 4 July 1997 be affirmed.

1. The application for review be dismissed.

1. The moneys paid into Court by the respondent Allied Express Transport Pty Limited be disbursed by paying to:

(a)the Commissioner of Taxation the taxation applicable to the said moneys as evidenced by a letter to be provided to the Registrar within 21 days; and

(b)by paying the balance of the said moneys to the applicant, Michelle Anderson.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI.1080R of 1997

BETWEEN:	ALLIED EXPRESS TRANSPORT PTY LIMITED Applicant
AND:	MICHELLE ANDERSON Respondent

JUDGE:	WILCOX J
DATE:	22 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:  This is a review of orders made by a Judicial Registrar in an application under s 170EA of the Industrial Relations Act 1988 (now the Workplace Relations Act 1996) alleging unlawful termination of employment. The review was sought by the former employer, Allied Express Transport Pty Limited (“Allied”), following a finding in favour of the former employee, Michelle Anderson. Ms Anderson was employed by Allied Express from 2 November 1995 until her termination on 21 August 1996.

The parties agreed that the review should be conducted on the basis of the evidence adduced to the Judicial Registrar except that Ms Anderson should be recalled for further cross-examination.  She was recalled but the cross-examination did not affect her earlier testimony or add significant new facts.

The background facts
Allied carries on business as a courier.  At material times one of its major clients was Australian Consolidated Press Limited (“ACP”).  In order to service this client, Allied maintained a desk in the loading section of ACP’s premises situated at the corner of Park and Elizabeth Streets, Sydney.  During most of her time with Allied, Ms Anderson was stationed at this desk, working as a telephonist/receptionist.

Ms Anderson had become friendly with a writer employed by ACP, Jackson Marx.  Mr Marx worked on the seventh floor of the ACP building.  In mid-August 1996, a rumour commenced to circulate amongst ACP staff that Mr Marx and Ms Anderson had come to the ACP building late one night and been discovered by one of the security staff having sex in an office on the seventh floor. 

Out of fairness to Ms Anderson and Mr Marx I should say immediately that there is no evidence of the truth of this rumour and Ms Anderson denies it.  She says she has been inside the ACP building, as distinct from the loading area, only twice.  On one occasion she waited for Mr Marx in the foyer of the ground floor; on another occasion, during a working morning, she went to the seventh floor to borrow some money from him.

Mr Marx was upset by the rumour and confronted “Scott”, the head of ACP’s security staff.  Mr Marx asked for an apology and a letter stating the rumour was false.  Scott agreed to supply a letter but did not do so, apparently because somebody in ACP decided to order an investigation of the matter.  Mr Marx learned about that development on Tuesday, 20 August.

It appears that ACP also informed officers of Allied about the investigation.  At about 4.25pm on 20 August, two Allied employees, Jenny Bagely and Michelle Tabour, arrived at the ACP courier desk and told Ms Anderson she had to go to Allied’s Wynyard office, at 50 Margaret Street, for the remainder of the day.  They said Ms Tabour would take over her duties at the ACP desk and Ms Bagely would escort her to the Wynyard office.  Ms Anderson knew the Wynyard office; she had occasionally worked there when someone was absent sick.  No notice or explanation was given to Ms Anderson of the change in her work station on 20 August.  Ms Anderson gave evidence that, as they were walking to Margaret Street, Ms Bagely asked her what had she done wrong.  Ms Anderson replied she had done nothing wrong and had no idea “what it might be all about”.   She said nobody from Allied had suggested to her that she had done anything wrong.  When she left the ACP desk, she took only her handbag.

Ms Anderson said that, when they arrived at Wynyard, she asked what terminal she should operate but Ms Bagely told her that she was not required to do anything, she could read a book until 6pm (her usual finishing time) and she was to report to the company’s head office at Bankstown at 8.30am the following day.  She was given no information about what was going on, even though she asked why she was “being held prisoner here”.

The Bankstown meeting
Ms Anderson went to the Bankstown office the following day, 21 August.  She was taken to the office of Michelle McDowell, the general manager of the company.  Another employee, Alan Neil, national revenue manager, was also in attendance.  According to Ms Anderson, Ms McDowell opened the discussion by asking her why she thought she was there.  Ms Anderson replied she had “an inkling about what this may be about” and mentioned the rumour about herself and Mr Marx.  She also referred to Mr Marx’s request for an apology and letter of disclaimer of the rumour.  Ms McDowell and Mr Neil asked Ms Anderson where she was “two Friday nights ago” (apparently Friday  9 August).  Ms Anderson referred to her diary and told them where she was.  Details were not elicited in evidence but I gather her information was inconsistent with the truth of the rumour.  Ms McDowell said “we have had a major client screaming down our throats about this and we knew nothing about it.  We could lose a major account over this.  Are you sure you are telling us the truth and have nothing to hide?”  Ms Anderson replied “yes”.  Mr Neil asked her whether she wished to continue with Allied and at ACP.  She said “yes”.  He said “Well, you can’t.  You will be out here at Bankstown.  You can’t work at ACP anymore whilst this investigation is pending and you may be able to return there.  It is up to ACP after all this is over, after the matter has been investigated”.  Ms McDowell told Ms Anderson “it would be best if she did not go near ACP and talk to anybody about this while the investigation was going on”.  Ms McDowell  asked Ms Anderson if she could stay on and work that afternoon at Bankstown but Ms Anderson replied she could not, she was too upset and distressed.  She mentioned having a gynaecological problem that was exacerbated by stress. 

Ms Anderson said she was not given any notice of the subject of the meeting, information as to the alleged incident or invitation to have a friend present.  Asked about the tone of the meeting, she replied “they basically just yelled at me the whole time.  It wasn’t very professional at all.  It wasn’t a discussion.  It was quite heated”.  She said the meeting took about an hour and a half.

Ms McDowell gave evidence that she first learned of the alleged incident on 20 August through Mr Neil.  Mr Neil had spoken to an ACP officer, Heather Morris, who had said ACP were conducting a formal investigation and  would prefer that Michelle Anderson be removed from the premises.  As a result, Ms McDowell instructed Cindy Alexander, the Wynyard manager, to have Ms Anderson replaced at ACP and escorted to Wynyard. 

Ms McDowell confirmed much of Ms Anderson’s account of the meeting at Bankstown the following day:  Mr Neil’s attendance, that Ms Anderson sought particulars of the allegation, that she was told the alleged date, then checked her diary and disclosed where she was that night.  Ms McDowell gave evidence that, when Ms Anderson was asked to account for the existence of the rumour, Ms Anderson replied that a security guard may have started the rumour “because he’d been hassling her”.  Ms Anderson explained that one of the security guards had “been hanging around me and asking me out”.  When asked why she did not report this, Ms Anderson replied she did not think to do that.  Ms McDowell confirmed that Ms Anderson told her about Mr Marx seeking an apology and disclaimer letter.  Ms McDowell’s evidence proceeded:

“What then took place in the meeting?---Alan Neil then said to Michelle that there would be a formal investigation of the matter.  He stressed to Michelle that it was a very serious matter but as she was our employee we were going to support her through that investigation.  He then stated that however ACP were a very large client of ours and a lot of peoples’ jobs depended on that account and a lot of drivers’ incomes and therefore we were treating the matter as a very serious one.

What then took place in the meeting?---I then advised Michelle that we would be moving her to Bankstown to continue performing her duties until the investigation was completed.

And what did Ms Anderson say?---She agreed with that request.  At that stage Mr Neil also said to her ‘Under no circumstances were you to return to ACP’.  She agreed with both of these requests.”

Ms McDowell also confirmed that she asked Ms Anderson to work that afternoon at Bankstown and Ms Anderson’s reference to stress and a gynaecological problem.  It was agreed she would work at Bankstown the following day, commencing at 12.30pm.  However, between 2pm and 3pm on 21 August, she said, Ms Anderson phoned and told her she would not be coming to work the following day, and probably not for the rest of the week; she would get a doctor’s certificate if required.

Mr Neil also gave evidence of the Bankstown meeting.  His account substantially corroborated that of Ms McDowell; in particular, the statement “under no circumstances” was Ms Anderson to return to ACP.

Subsequent events of 21 August
After Ms Anderson left the meeting, she set out to return home by train.  As she lived at Hurstville, she needed to change trains.  She decided to do so at Town Hall station.  Having arrived at Town Hall, she decided to contact Mr Marx.  She met him outside the ACP building.  They went into the hotel next door to talk and ended up having lunch together. 

Towards the end of the lunch, Ms Anderson telephoned a friend named Fiona Rennard who worked for Allied as a courier.  Ms Rennard told Ms Anderson she would be calling into ACP about 2pm.  Ms Anderson asked Ms Rennard if she could meet her “because I was upset and wanted to be around a friend for that afternoon”.  Ms Anderson told Ms Rennard she would like to work with her for the rest of the day.  Ms Rennard agreed.  About 2pm she called into the hotel to collect Ms Anderson.  Ms Rennard had parked her car in the ACP courier dock so both women returned there to enter the car.  As they were doing so, Ms Anderson remembered she had left her reading glasses at the courier desk.  So she approached the desk and asked the duty receptionist, Tanya Reuben, about the glasses.  She picked up the glasses and also some other personal possessions. 

According to Ms Anderson, while she was collecting her belongings Ms Reuben asked her what was going on.  Ms Anderson replied that she could not comment but would not be working at ACP anymore; she would be out at Bankstown.  Ms Anderson said this was the whole of her conversation with Ms Reuben and she spoke with nobody else at ACP.  After picking up her belongings, she got in the car with Ms Rennard and left. 

Ms Anderson spent the afternoon with Ms Rennard, as she worked, and was dropped back at the hotel to meet Mr Marx after he finished work for the day.  At some stage, Ms Anderson telephoned Ms McDowell about not working the following day.   Ms Anderson’s account of  that conversation differs from that of Ms McDowell in that she says she told Ms McDowell she already had a doctor’s certificate.  Her evidence went on:

“I said to Michelle McDowell that I won’t be able to work tomorrow.  She said to me, ‘You’ve conveniently got a doctor’s certificate to get out of this.  You’re running away from the problem and you should grow up’, to which I said ‘I haven’t conveniently got a doctor’s certificate.   Are you saying that I can’t have two days off sick even though I’ve got a doctor’s certificate?’.  She said, ‘No.  I’m not saying that you can’t have two days off sick even though you’ve got a doctor’s certificate but we need you here at Allied because we have to cover your shift at ACP’.  I said, ‘Well, I’m sorry, I can’t.  I am sick and I can’t make it to work tomorrow’.  She then said to me, ‘Well you have just chosen the wrong person to go up against.  You will be out at Bankstown base permanently now’, and hung up on me.”

Ms Rennard gave evidence in which she confirmed much of Ms Anderson’s account of the afternoon.  She described receiving a telephone call from Ms Anderson, who was “very distressed and upset and needed some company”.  Ms Rennard told her she was coming back to town and arranged to meet her at 2 o’clock.  Ms Rennard left her car in the ACP courier dock while she collected Ms Anderson from the hotel.  They returned together to the car.  Ms Rennard went on:

“So we both got into the car and we’re talking and I’m saying is everything all right, you know, are you okay; so we were just talking along that vein.  I  was about to drive out and Michelle said:  ‘Hang on a minute I’ve left my - my glasses are here’.  I said:  ‘Oh well,  okay, all right, hang on a minute I’ll stop the car’ sort of thing and so at which point in time she got out of the car and went around to ask for her things.”

Ms Rennard said she saw Ms Anderson at the courier counter.  “I don’t know exactly how much time elapsed but she got her things and then she came back around the other side of the car and got in the car and then we both left”.  She said she could not recall seeing Ms Anderson speaking to anyone; however, she was keying in data, and perhaps listening to the radio operator, at the time.

In relation to the conflicting accounts of the telephone conversation between Ms Anderson and Ms McDowell during the afternoon of 21 August, it is relevant to note the evidence includes a certificate of Dr Premarajal, a general practitioner at Kingsgrove, dated 20 August 1996 and certifying Ms Anderson to be unfit for duty for three days from 21 August to 23 August.  The stated disability was sulpuyitis.  Ms Anderson said she had exchanged shifts with Ms Reuben on 20 August and seen the doctor that morning before going to work.  She said she went to work, despite the certificate, because nobody else was available that afternoon.

The termination of employment
Ms Anderson spent the evening and night with Mr Marx.  She did not return to the home she shared with her grandmother at Hurstville until about 11am next day, 22 August.  Her grandmother gave her a message to telephone Ms McDowell.  She did.  According to Ms Anderson, Ms McDowell asked where she went after the meeting the previous day.  She said she “went to see Jackson”.   Ms McDowell asked whether she went to the ACP building and Ms Anderson replied “No.  I met Jackson outside the ACP building”, whereupon Ms McDowell said “Did you go into the ACP building and don’t lie to me because I’ll find out”.  Ms Anderson said she replied “Yes, I did go into the ACP building just to retrieve my glasses and the rest of my personal possessions”.  She did not mention Ms Rennard because she did not wish to get her into trouble.  Ms Anderson said Ms McDowell responded “After I ordered you not to go there.  You know I ordered you not to go there.  I have a witness remember”.  Ms Anderson said “I just walked into the courier dock to pick up my glasses”.  She said the conversation went on:

“She said ‘Because you disobeyed my orders you can no longer be offered any casual employment within this company’.  I said, ‘Could you repeat that?’  She said, ‘Because you blatantly disobeyed my orders no longer can I believe your story.  I can no longer offer you any more positions within this company’.  I said, ‘Well, Michelle, could I have that in writing please, the reason why I’m being terminated and the reason why I was removed from my work leading up to this termination’.  She said, ‘Yes, I will give that to you along with your letter of termination and any moneys owing’.”

Ms McDowell’s account of the telephone conversation is somewhat different.  She said she asked Ms Anderson where she was the previous afternoon and received the reply “I was out visiting a doctor”.  She repeated the question and received the same answer.  She then asked “are you sure you weren’t at ACP” and received a negative response.  She repeated the question and received the same answer.  Ms McDowell then said “Michelle, I have witnesses who contacted me last night to say you were at ACP” whereupon Ms Anderson replied “Oh yeah, yeah, but I was just outside meeting my boyfriend Jack”.  Ms McDowell said “Michelle, you were supposed to be home sick and you have lied to me about that”, to which Ms Anderson responded “yes”.  Ms McDowell gave evidence she then said “the people that called me last night said you were inside the dock talking to Allied staff and drivers and talking to ACP staff”, to which Ms Anderson replied “yes”.  Ms McDowell then said “Michelle you have specifically disobeyed the directions that we gave you and you have lied to me about that and therefore I have no confidence in you.  Therefore I can’t offer you any more casual hours of employment”.  She said Ms Anderson replied “Fine.  Can I have it in writing both the reasons for my termination and my removal from ACP”.  Ms McDowell told her she would give her written reasons for termination “but her removal from ACP was still under investigation and it had nothing to do with her termination”.

In cross-examination Ms McDowell said her information about what Ms Anderson had done on the afternoon of 21 August came from Ms Alexander, who was passing on information said to have been given to her by  Ms Reuben; namely that Ms Anderson had been on the ACP premises and “she’d spoken to Allied staff, Allied drivers and ACP staff and that she’d collected personal belongings, Allied documentation and ACP handwritten procedures documentation”.  She said she put all this to Ms Anderson in the telephone conversation on 22 August but did not tell her the names of the Allied drivers or ACP staff.  On 26 August Ms McDowell issued a letter to Ms Anderson reading as follows:

“As advised in a telephone conversation on Thursday, August 22, you will no longer be offered employment with Allied Express as a casual telephonist.

The grounds for this decision, as outlined with you on the telephone, are:

(1)that you failed to comply with specific instructions given to you in a meeting with myself and Alan Neil on Wednesday, August 21.  The importance of these instructions was clearly stated and impressed upon you, and at that meeting you agreed to comply with them.

(2)that you were not truthful with me about the circumstances and explanations as to why you did not comply with the specific instructions that you were given in that meeting.

Accordingly I no longer have the necessary confidence in you as an employees [sic] who will follow directions satisfactorily.

Please find enclosed all money currently outstanding to you.

If you require any further information, please contact our Human Resources Manager, David Napper.”

The payment made to Ms Anderson covered her entitlements until the date of termination but nothing for salary in lieu of notice. It is not clear whether this was because she was being treated as a casual employee, a categorisation that was plainly untenable and is not now pressed, or because it was thought she had been guilty of serious misconduct: see s 170DB of the Act. The Judicial Registrar held that Ms Anderson had not been guilty of serious misconduct - that is, conduct evidencing an intention to repudiate the employment agreement - and awarded $450 compensation for breach of s 170DB. On any view of the evidence, that conclusion was correct.

The parties’ contentions
It is common ground that Allied bears the onus of establishing it had a valid reason for the termination of Ms Anderson’s employment connected with her conduct (s 170DE(1) of the Act) and that any termination based upon her conduct would be lawful only if she had first been provided with an opportunity to defend herself against the allegations made against her (s 170DC). Mr J P Capsanis, solicitor for Ms Anderson, says the employer contravened both s 170DE(1) and s 170DC; the Judicial Registrar so held. Counsel for Allied, Mr A Moses, argues his client has discharged its onus of proof. He says Ms McDowell had two valid reasons for the termination, being the reasons set out in her letter to Ms Anderson of 26 August; moreover, Ms McDowell raised these matters with Ms Anderson before taking the decision to terminate her employment.

The instruction not to return
Ms McDowell explained her instruction to Ms Anderson not to return to the ACP premises by reference to the wishes of ACP.  No evidence was led from any ACP officer so I am unable to reach any conclusion as to whether that was indeed ACP’s wish.  If it was, it is understandable that Ms McDowell would give it great respect; ACP was a major client.  It is less easy to understand the manner in which she went about complying with ACP’s perceived wish.  No information had been given to Ms McDowell to substantiate the rumour concerning the conduct of Ms Anderson and Mr Marx.  All she knew was that there was a rumour and somebody in ACP had ordered an investigation.  Yet Ms McDowell  instructed Ms Alexander not only to replace Ms Anderson immediately, about one and a half hours before she was due to cease work for the day, but to have her “escorted” to Wynyard.  At no stage was it explained to Ms Anderson why she was being taken to Wynyard.  No explanation was offered to her, or to the Court, of the need for an escort.  An escort was not only unnecessary - Ms Anderson knew the way to Wynyard - but was the course most likely to draw attention to Ms Anderson and feed gossip within Allied and ACP.   Further, it was humiliating.   Especially in the absence of any explanation, a sudden escorted departure would strongly suggest to Ms Anderson and everybody who knew about it that she had already been adjudged guilty of some serious offence.

To make matters worse, when Ms Anderson reached the Wynyard premises she was still denied information and given no work.  To use her phrase,she was “kept like a prisoner” until it was knock-off time.  All she knew was that she had to attend a meeting at Bankstown next day, undoubtedly to be taxed by superior officers but on a subject that was left to her to guess.   Ms McDowell was not aware that Ms Anderson had seen a doctor that morning and obtained a certificate for three days sick leave because of a stress-related gynaecological condition, but even the healthiest of employees might have been upset and stressed at the treatment Ms Anderson received on 20 August.

There are differences in the accounts of the meeting next day at Bankstown.  Common to all accounts, however, is that Ms McDowell did not commence the meeting by explaining to Ms Anderson why she had been required to attend but by asking her the question “Why do you think you are here?”, rather like a headmaster’s greeting to a schoolchild sent to him for punishment.  The question, of course, assumes the questionee knows the reason, and this can only be because the questionee has a consciousness of guilt.  Ms McDowell’s unfortunate beginning seems to have set the tone of all that followed, there being at least a strong suspicion, if not assumption, of Ms Anderson’s guilt.  This does not seem to have been affected by Ms Anderson’s apparently credible alibi.

Having said all this, I accept that Ms McDowell and Mr Neil clearly conveyed to Ms Anderson their wish that she not return to the ACP premises until the investigation was complete.  There is a dispute as to whether they used the words “under no circumstances” but it makes no difference whether they did or not.  Their instruction was clear.

It is also clear that Ms Anderson did return to the ACP premises, but she did so only in the most technical, fleeting and understandable circumstances.  In her upset state it was natural for her to seek the comfort of Mr Marx and, later, Ms Rennard.  In doing this, she took care not to enter the building.  But she had to enter the loading dock area to get into Ms Rennard’s car.  This was not a place where she would be likely to meet anyone connected with the alleged incident or its investigation.  No doubt all would have been well if she had not suddenly remembered her glasses.  So she went to the courier desk and spoke to Ms Reuben.  Contrary to the information supposedly given by Ms Alexander to Ms McDowell, and which Ms McDowell apparently believed when she made her termination decision, there is no evidence that Ms Anderson spoke to any ACP staff or any Allied staff, other than Ms Reuben and Ms Rennard, or that anybody else was present at the time.  Contrary to the same information, there is no evidence that Ms Anderson took any Allied or ACP documents.  In her evidence Ms Anderson denied all these allegations and no suggestion has been made that her denial should be disbelieved.  Ms Reuben was not called to give evidence. 

In this situation the appropriate finding is that Ms Anderson returned to the ACP building but did no more than go to the courier desk in the loading area to pick up her personal belongings while Ms Rennard waited in the car.  Even this action transgressed the instruction given by Ms McDowell, but it stemmed largely from the clumsy and unfair way Ms McDowell had handled the matter.  A wise manager who was prepared to accept the possibility of Ms Anderson’s innocence of the conduct complained of, or even to give her the benefit of the doubt, but nonetheless wished to placate ACP by removing her from the premises, would have contacted Ms Anderson personally, or through a senior officer such as Mr Neil or Ms Alexander, and explained the position, told her to take home all her personal belongings that day and report for work elsewhere the next day.  A sudden, unexplained and escorted departure from the premises was bound to maximise Ms Anderson’s distress and the chance of personal belongings being left behind; and therefore the possibility that Ms Anderson would return to collect them.

There is no reason to think Ms Anderson returned to the ACP premises out of a sense of defiance; on the contrary, she was careful to meet her friends outside the building.  Having regard to that fact, and all the considerations I have mentioned, her action does not constitute a valid reason for the termination of her employment.

Lack of truthfulness
The second ground of termination has given me greater concern.  Even on her own account of the telephone conversation of 22 August, Ms Anderson was not totally frank.  She said she went into the ACP “just to retrieve my glasses and the rest of my personal possessions”; she did not mention getting into the car with Ms Rennard.  That lack of frankness is understandable, she did not wish to expose Ms Rennard to possible trouble; but it can be argued it was reprehensible because it was erosive of trust between employer and employee.  However, trust cuts both ways.  It is clear, on Ms McDowell’s own account of the matter, that she herself was guilty of some dissimulation in this conversation, at least of  “gilding the lily”.  She said in evidence she told Ms Anderson “I have witnesses to say that you were at ACP last night”.  She agreed she used the plural.  When asked who were those witnesses, she replied “Tanya Reuben contacted Cindy Alexander who contacted myself”.  It was put to her that her statement was not, therefore, strictly correct.  She replied “Well, if you want to take it literally, no”.  Later in the conversation with Ms Anderson, Ms McDowell referred to “the people who called last night”.  Once again, she agreed this was “not strictly true”. 

If Ms McDowell’s version of the telephone conversation of 22 August is accepted, Allied’s case is stronger than if reliance is placed on Ms Anderson’s version.  Ms McDowell’s account includes prevarication by Ms Anderson and an admission that she was “inside the desk talking to Allied staff and drivers and talking to ACP staff”.  In the absence of any evidence that anybody other than Ms Reuben was present when Ms Anderson called in, it seems unlikely such an admission was made.  However, it is unnecessary to reach a final view about that because it is inappropriate for me to choose between the two versions of the conversation.   The evidence adduced to the Judicial Registrar contains the competing versions.  Ms Anderson was recalled and challenged about her version.   She adhered to it.  Ms McDowell was not recalled.  I have only her transcript of evidence and no way of making a choice between the two accounts.   The resultant situation is that discussed by the Full Court of the Industrial Relations Court of Australia in Wyndham Lodge Nursing Home Inc v Reader (No.2) (1996) 65 IR 253 at 258:

“... where there is a dispute as to primary facts, it will usually be impossible for the judge to resolve it ‘on the papers’.  Determination of a dispute about primary facts involves choosing between conflicting elements of the evidence.  This almost always involves an assessment of the witnesses, not only as to their truthfulness but also as to their characters and personalities and the likelihood that they acted in a particular way.  Without seeing and hearing the witnesses, a judge has no basis for substituting his or her opinion on such matters for that of the judicial registrar.  The judge will be bound to hold that the party who bears the onus of proof on the disputed issue has failed to discharge that onus.”

The application of that passage to this case means I should choose that version of  any disputed primary facts that is least favourable to the party that bears the onus of proof; in this case Allied.  I would not be justified in determining the issue of validity of termination, on which Allied bears the onus, on the basis of Ms McDowell’s account of a disputed conversation.  Not having had the advantage of seeing and hearing both witnesses, there is no rational basis for preferring her account of the conversation to that of Ms Anderson.

There is a further matter warranting consideration.  On her own account of the conversation, Ms McDowell was influenced in her termination decision by factors that had nothing to do with Ms Anderson’s contravention of her instruction.  She said “you are supposed to be home sick and you have lied to me about that”.  Ms Anderson had done nothing of the sort.  In her telephone call the previous afternoon, Ms Anderson had told Ms McDowell “that she would not be coming to work the following day and probably not for the rest of the week”, that she was “too stressed” and “can’t come”.  Something was said about a doctor’s certificate.  Ms Anderson did have a doctor’s certificate.  She was stressed.  She did not tell Ms McDowell she would be “home sick”; that was Ms McDowell’s own assumption.  The assumption was perhaps a natural one, but a person may obtain relief from work-related stress simply by being with friends, away from her work situation.  Ms Anderson’s “lie”, about being “home sick”, seems to have been no more than a non-fulfilment of Ms McDowell’s own assumption, made without assistance from Ms Anderson.

Having regard to all these considerations, Allied has failed to establish the validity of its second ground for termination.  It has failed to prove that Ms Anderson was dismissed because of actions on her part that destroyed the necessary relationship of confidence between employer and employee.

It is not necessary for me to determine whether there was a contravention of s 170DC of the Act. Allied contravened s 170DE(1) and that is sufficient to entitle Ms Anderson to a remedy. The Judicial Registrar thought reinstatement was impracticable. That view is not challenged. Having read the relevant evidence, I agree with it. The Judicial Registrar awarded compensation of $11,700, this being additional to the sum of $450 previously mentioned and the maximum available in this case having regard to the terms of s 170EE(3) of the Act. The Judicial Registrar found Ms Anderson was suffering a continuing loss when he heard the matter, eight months after termination. On the review it has not been suggested the award was excessive. Having regard to the relevant evidence, I am satisfied it was not.

Mr Moses suggested that, if Ms Anderson’s claim was made out, I should exercise the Court’s discretion in favour of making no order for compensation.  I see no warrant for that approach.  This is not a case where it may properly be said the employee would have shortly been dismissed in any event; compare Nicolson v Heaven & Earth Gallery Pty Limited (1994) 1 IRCR 199 at 212-214. Ms McDowell was at pains to emphasise she did not dismiss Ms Anderson because of the alleged sexual incident and it has never been established that such an incident occurred. If Allied had handled the matter in a fair and sensible way, Ms Anderson would probably still be employed by it.

The orders made by the Judicial Registrar should be sustained.  The order of the Court will be that the application to review be dismissed.

I certify that this and the preceding seventeen
(17) pages are a true copy of the Reasons for

Judgment of  Justice Wilcox.

Associate:

Dated:             22 October 1997

APPEARANCES

Solicitors for the Applicant:                  J P Capsanis & Co

Counsel for the Respondent:                A Moses

Solicitor for the Respondent:                Jonathon Hassett

Date of Hearing:  7 October 1997