Anastasas v Carillon Kebabs
[1997] IRCA 141
•2 May 1997
DECISION NO:141/97
CATCHWORDS
INDUSTRIAL LAW -. determination whether TERMINATION OF EMPLOYMENT or whether employee handed in RESIGNATION - complaint of UNLAWFUL TERMINATION - was employment CASUAL EMPLOYMENT - COMPENSATION -
Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170DB, DC, DE(1), EE(2) and (3), Regulation 30B
Jones v Dunkel 1959 101 CLR 298
Reed v Blue Line Cruises Limited, unreported, IRCA 571/96, Moore J, 26 November 1996
ANASTASAS -v- CARILLON KEBABS
WI 1468 of 1996
Before : BOON JR
Place : PERTH
Date of Judgment : 2 MAY 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1468 of 1996
B E T W E E N:
MARIA ANASTASAS
Applicant
A N D:
PAUL SANOULIS, TRIANTAFILOS SANOULIS,
ELETHERIA SANOULIS, EFFIE KAZANTSIDIS,
DIMITRI KAZANTSIDIS trading as CARILLON KEBABS
Respondent
MINUTE OF ORDERS
2 MAY 1997 PERTH BOON JR
THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $795 by way of payment in lieu of notice.
The respondent pay to the applicant the sum of $6,490 by way of compensation for the unlawful termination of her employment.
These amounts be paid within 28 days of the date of this order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1468 of 1996
B E T W E E N:
MARIA ANASTASAS
Applicant
A N D:
PAUL SANOULIS, TRIANTAFILOS SANOULIS,
ELETHERIA SANOULIS, EFFIE KAZANTSIDIS,
DIMITRI KAZANTSIDIS trading as CARILLON KEBABS
Respondent
Before: Boon JR
Place: Perth
Date: 2 May 1997
REASONS FOR JUDGMENT
INTRODUCTION
This is an application under section 170EA of the Workplace Relations Act 1996 (previously Industrial Relations Act 1988) (the Act). The applicant, Maria Anastasas, is seeking payment of compensation arising out of the alleged unlawful termination of her employment by the respondent, Carillon Kebabs. It is alleged that Carillon Kebabs, in terminating the employment of Ms Anastasas, breached the provisions of the Act in a number of ways. It is said that Ms Anastasas was given no notice of the termination as required by section 170DB; she was not given an opportunity to respond to any allegations against her conduct or performance as required by the provisions of section 170DC; and there was no valid reason for the termination of her employment as required by the provisions of section 170DE(1) of the Act. The respondent's main defence to these allegations is that there was no termination of Ms Anastasas' employment at the initiative of the employer and says that Ms Anastasas resigned. It is common ground that the main issue in this matter is whether or not Ms Anastasas resigned or whether her employment was terminated, and that if this Court finds that there was a resignation rather than a termination at the initiative of the employer, then this Court has no jurisdiction to determine the application. In addition, it is alleged that Ms Anastasas was excluded by the provisions of Regulation 30B of the Regulations in that she was a casual employee engaged for a short period.
THE EVIDENCE
Carillon Kebabs was a partnership comprised of Paul Sanoulis, Triantafilos Sanoulis (also known as Ross Sanoulis), Eletheria Sanoulis, Effie Kazantsidis and Dimitri Kazantsidis. Ross and Eletheria Sanoulis are the parents of Paul Sanoulis and Effie Kazantsidis. Dimitri Kazantsidis is the husband of Effie Kazantsidis. Carillon Kebabs conducted a food stall from premises in a food hall situated at the Carillon Arcade, Hay Street, Perth.
Maria Anastasas
Ms Anastasas is a 49-year old woman who was born in Greece and arrived in Australia in 1968. Her only education consisted of five years at primary school. She did six years of unskilled factory work until she gave birth to her two children. When her children went to high school, she entered the paid work force again. Ms Anastasas said that she worked briefly for Carillon Kebabs in 1986 and then again in 1990. In 1993 she started work on a permanent basis at a nursing home hostel for elderly people. She said that Mr Ross Sanoulis contacted her and offered her a permanent position at Carillon Kebabs. She started work with Carillon Kebabs in September 1993. According to Ms Anastasas she worked at Carillon Kebabs five days per week, Monday to Friday, approximately between the hours of 10 am and 3 pm. Her normal wages were around $265 gross per week. She did some weekend work and sometimes finished after 3 pm. Her position was that of kitchen hand and counter hand. It involved preparing and selling the food.
According to Ms Anastasas, she started to experience pain in her shoulders during 1994. She reported the incident to Mr and Mrs Sanoulis and Mr Sanoulis told her that he did not have any workers' compensation insurance and that she should be careful. She saw her doctor but she did not have money to pay for physiotherapy.
Ms Anastasas said that when she first started working for Carillon Kebabs she was paid $9 per hour and did not pay tax. Ms Anastasas said that towards the end of 1994 she said to Mr and Mrs Sanoulis that she wanted to be "in the clear" and wanted to pay tax and was told to wait for Mr Paul Sanoulis to return from overseas. When Paul Sanoulis returned to Perth, he arranged through the firm's accountant for Ms Anastasas to be placed on the books and to start paying tax. Ms Anastasas said that the accountant, Lydia Skokleski, told her that she was working as a casual employee and would be paid at the rate of $11 per hour.
Ms Anastasas said that at first there was no reaction from Mr and Mrs Sanoulis about her paying tax. After the first month, however, Mr Ross Sanoulis would not talk to her and became angry because of the tax issue. Ms Anastasas said that Mr Ross Sanoulis became so angry that for several weeks he reduced her working hours to three hours per day, Monday to Friday. He also changed her duties. Mr Ross Sanoulis reduced her rate of pay to $9 per hour and said that she had to be paid as a part-time employee. Ms Anastasas said that she was confused as to whether she was casual or part-time. The wages records of Carillon Kebabs confirm that for a short period in early 1995 Ms Anastasas was paid at the rate of $9 per hour and worked reduced hours.
Ms Anastasas said that shortly before the hearing in this matter she went to the Australian Taxation Office and declared the income she had earned between September 1993 and the end of 1994, and had to pay a $3,000 tax bill in relation to that period.
Ms Anastasas gave evidence that she worked at Carillon Kebabs without a break from September 1993 until 25 September 1995. She said that she wanted to take some days off between 1993 and 1994, but was unable to because Carillon Kebabs did not have another worker. Mrs Sanoulis and Ross Sanoulis also worked in the shop and there was one other employee who worked at night to do the cleaning after 5 pm.
Ms Anastasas said that in June 1995, Mr Ross Sanoulis and Mrs Sanoulis went away on holiday to Greece. According to Ms Anastasas, Mrs Sanoulis asked if Ms Anastasas could take care of the business with her son, Paul Sanoulis. Mr and Mrs Sanoulis were away in Greece for approximately three months. Paul Sanoulis and his girlfriend, Irena Morris, worked in the shop. Ms Anastasas said that Paul Sanoulis was easier to work for than his parents. Ms Anastasas, however, had to work some increased hours because she was asked to arrive early and open the shop.
Ms Anastasas said that before Mr and Mrs Sanoulis returned from their holidays, she asked Paul Sanoulis if she could take a month off to relax when his parents returned from Greece. She said that one of her reasons for taking a month off was that she was suffering pain from her injury. According to Ms Anastasas she told Paul Sanoulis that she was feeling tired and wanted to relax. She said that Paul Sanoulis asked what she would do for that month and she replied that she might go to Adelaide to see her husband's godmother or stay at home and relax. According to Ms Anastasas, when Mr and Mrs Sanoulis returned to Perth in September, she asked Mr Ross Sanoulis whether she could take a month off. Mr Ross Sanoulis said to her "you wouldn't like to come back when you take a month off, would you" and Ms Anastasas replied "no, that's not going to happen, of course I'm going to return". Ms Anastasas then said Mr Ross Sanoulis said "give us one week notice so we can - give us another week to find another lady. At the time I didn't think that was anything wrong with that, find another lady to work in the shop because we had to work hard, the three of us. So I gave them a week notice. Well not notice actually. I gave them another week. They found another lady and they took off and I say I see you after one month, gentlemen - I mean to Mr and Mrs Sanoulis". This was on Friday, 25 September, when she finished work.
Ms Anastasas said that when she left on 25 September 1995, she left some clothes which she wore when she was cleaning the shop. She left behind trousers, earrings, blouses and a pair of shoes. She left them there because she was planning to return to work there. During her month off work, she visited Mrs Sanoulis at the shop and picked up some earrings. Mrs Sanoulis asked her to clean the shop for them and according to Ms Anastasas she said to Mrs Sanoulis, "what about your husband? He can clean the shop. After all, I'm on the month off now relaxing". Ms Anastasas said that five days before she was due to return to work she telephoned Mrs Sanoulis and said "it's time for me next week to start work". As Mrs Sanoulis did not say much, she went into the shop and spoke to Mr Sanoulis. This was on about 20 October 1995. She said to Mr Sanoulis "I start work next week". Mr Sanoulis said "Oh, I'm going to sell the business and the company is going to buy it and they've got their own staff". Ms Anastasas understood from that conversation that the company which owned the whole of Carillon Arcade was going to buy Carillon Kebabs. Mr Sanoulis told Ms Anastasas to take her belongings and she was very unhappy and hurt but felt there was nothing she could do about it.
Ms Anastasas said that before Mr and Mrs Sanoulis went for their holiday, Mr Sanoulis tried to complicate matters for her and accused her of various things. Ms Anastasas said that she thought Mr Sanoulis wanted her to leave. Mr Sanoulis said to her "you think I can't sack you" and Ms Anastasas had replied "no, you can't". Ms Anastasas said that when she started paying tax, for some reason Mr Sanoulis tried to make her leave the job.
In relation to allegations made on behalf of the respondent that Ms Anastasas had indicated that she voluntarily left her employment because she was concerned about the effect of her earnings on her husband's pension, Ms Anastasas said that she did discuss that with various people she worked with at Carillon Kebabs but that was well before she left for her holiday. By the time she left on 25 September 1995 she knew that her earnings would not cause a problem for her husband.
Ms Anastasas said that after Mr Ross Sanoulis told her on 20 October 1995 to take her belongings and leave, she went to see the Social Security Department and was told to go and register herself with the Commonwealth Employment Service (the CES). She was registered on 23 October 1995. She told the Department of Social Security that she took a month off to relax and the Department told her that they could not pay her for that month. They did however pay Ms Anastasas JobSearch allowance from the date of her application on 23 October 1995. She was told by the CES that if she had resigned from her employment she would not have received any JobSearch allowance until about Christmas time. The CES asked her to bring a letter from Carillon Kebabs to state when she finished work there. Paul Sanoulis wrote out a letter for her and she took it to Social Security. Documents tendered on behalf of Ms Anastasas confirmed that Ms Anastasas started receiving JobSearch allowance from 30 October 1995.
In November or December 1995 Ms Anastasas went to Paul Sanoulis who wrote out a reference for her. This was because she had to look for suitable employment whilst she was receiving JobSearch allowance. The reference written by Paul Sanoulis was in very complementary terms.
Ms Anastasas said that she went shopping in the city before Christmas 1995 and noticed that Mr Sanoulis had not sold his business. She went to see the manager of the Carillon Arcade and discovered that the Arcade had not bought Carillon Kebabs from the Sanoulis family. She received confirmation from James Lang Wootton to that effect by letter dated 15 February 1996.
Ms Anastasas said she went to see Mr Ross Sanoulis and asked to have a talk. Mr Sanoulis refused to speak to her. She told Mr Sanoulis "you're going to hear from my lawyer", even though she did not have a lawyer at that time.
Ms Anastasas said that she went to Legal Aid for advice and they wrote a letter of demand. In March 1996 she filed an application with the Australian Industrial Relations Commission.
During cross examination Ms Anastasas admitted that she signed the wage books which stated that she was a casual employee. She said however that she was confused because at one stage Mr Ross Sanoulis told her that she was being paid as a part-time employee. In addition, the reference Paul Sanoulis wrote for her stated that she was a part-time and casual employee.
Ms Anastasas denied that she told Mr Paul Sanoulis that she wanted to resign. She maintained throughout her evidence that she wanted to merely take a month off. During cross examination Ms Anastasas said that she discussed with Irena Morris and Athena Kalintsis the effect her income may have on her husband's entitlement to his pension. She discussed this before she found out that she could continue to work without it affecting her husband's pension. Ms Anastasas said that well before she left on 25 September 1995 she knew that it had been sorted out with Social Security. She said that she told many people at Carillon Kebabs and those who worked at the food hall that she was going to take a month off and go on a holiday.
Ms Anastasas said that she enjoyed a good social relationship with Mr and Mrs Sanoulis but they did not socialise together outside of work. Mr Ross Sanoulis however did not treat her in a friendly manner at work, and often criticised her work. While Mr and Mrs Sanoulis were away, Ms Anastasas had more responsibility and worked longer hours but it was more peaceful and Paul Sanoulis did not "growl" at her.
Ms Anastasas said in cross examination that she would not discuss plans with Paul Sanoulis about her employment as all her discussions had always been with Mr Ross Sanoulis. She said she and Mr Ross Sanoulis had made a deal about her permanent employment. She only discussed the question of a holiday with Paul Sanoulis.
In cross examination Ms Anastasas said that she knew after the conversation on 20 October 1995 with Mr Ross Sanoulis that she was dismissed because Mr Sanoulis had told her that he was selling the business and the purchasers had their own staff. According to Ms Anastasas, Mrs Sanoulis was not present during that conversation. Ms Anastasas said that she only took action when she discovered that Mr Sanoulis had lied to her. She said that she did not find out until February 1996 that Carillon Kebabs had workers' compensation insurance and that was when she made a claim in relation to her work-related injury. The doctor had told her later that the condition was work related. A medical report from a medical practitioner who treated Ms Anastasas confirmed that she consulted him in June 1994. Ms Anastasas could not remember Ms Skokleski telling her that she was covered by workers' compensation.
Eletheria Sanoulis
Mrs Sanoulis gave evidence that she was born on 28 July 1934 in Greece. She has been in Australia for 28 years but cannot speak English. Mrs Sanoulis gave her evidence through an interpreter. She said that she can neither read nor write and has never been to school. In 1994 when she became ill she expanded the partnership to include her children. Carillon Kebabs was sold in December 1996.
Mrs Sanoulis said that in 1995 she and her husband left Australia on 9 June and returned on 11 September.
According to Mrs Sanoulis, Ms Anastasas was a casual employee. When asked how she found Ms Anastasas as an employee, Mrs Sanoulis replied "I didn't form any particular opinion" . . ."if you tell me what opinion you want I will give it to you". Mrs Sanoulis said that about a week after she returned from Greece she saw Ms Anastasas at the shop and they "spoke about the fact that the issue that she wanted to stop work". Mrs Sanoulis said that Ms Anastasas told her that her husband stopped working at the railways and they wanted to get the pension. This was not put to Ms Anastasas in cross examination. Mrs Sanoulis said that a week and a half after Ms Anastasas left, she called Mrs Sanoulis over the phone and asked for a letter to take into Social Security. Paul Sanoulis prepared the letter. About a month later Ms Anastasas phoned and asked for a reference and once again Paul Anastasas wrote the reference.
According to Mrs Sanoulis, after Christmas Ms Anastasas returned and said "I want my job". Mr Sanoulis told her that they had a woman but could give her two hours in the afternoon to fry the eggs and felafel. Ms Anastasas did not accept that and wanted her old job back. Ms Anastasas returned on another occasion and asked again for her job and Mr Sanoulis offered her weekend work which was declined. Once again this was not specifically put to Ms Anastasas.
Mrs Sanoulis said that when Ms Anastasas came into collect her belongings she was a bit angry and wanted Mr and Mrs Sanoulis to get rid of the woman they had working for them and give her back her job. Mrs Sanoulis said that this conversation took place after Christmas.
During cross examination, Mrs Sanoulis said that she could not remember whether Ms Anastasas worked in the shop in 1994. She said that they used to take her to work when they had work and would not have her when they did not have work. She said on many occasions that she could not remember everything and referred to the fact that she was 63 years old and illiterate. Mrs Sanoulis said that during 1995 Ms Anastasas worked ten weeks in total but she could not remember dates. When it was put to her that Ms Anastasas had worked every week in 1995 up to 25 September 1995, Mrs Sanoulis said that she could not remember.
In cross examination Mrs Sanoulis was asked whether Ms Anastasas was paid $9 per hour when she first started working at Carillon Kebabs. Mrs Sanoulis was very clear in her evidence that there was an agreement that she would be paid $10 per hour. She said that Ms Anastasas was paid in cash from the till. There were no payments recorded in the wages book. She said that they did not register her for tax because Ms Anastasas said that her husband had declared at the railways that his wife was not working. Mrs Sanoulis said that all of the income of the partnership was written in the books. Mrs Sanoulis maintained that in the 1993/1994 financial year and the 1994/1995 financial year the partnership declared all of its income and all of its expenses.
Mrs Sanoulis said that her accountant knew what happened. She said that she could not remember about amended tax returns for those two financial years.
Mrs Sanoulis stated that during all the years of its operation, Carillon Kebabs had workers' compensation insurance.
Mrs Sanoulis admitted that when Ms Anastasas left in September she left a pair of thongs under a bench and a pair of earrings in a box on a shelf. She said that she did not see a blouse or a pair of trousers at the shop.
She said that they all made a decision to put Ms Anastasas on the books because Mrs Sanoulis and her husband understood that they had made a mistake and had to register Ms Anastasas. She said that the decision was made by Ms Anastasas, Mr Sanoulis and Mrs Sanoulis together. Mrs Sanoulis said that she herself was the one who had the idea to put Ms Anastasas on the books. She said she spoke with somebody and he told her to do it. When asked who told her that, Mrs Sanoulis said "it wasn't anybody who suggested it. It was like that or you chat with people and it wasn't a precise person".
Ross Sanoulis
Mr Ross Sanoulis did not give evidence at the hearing of this matter. The Court was provided with a certificate from his medical practitioner stating that Mr Sanoulis should not give evidence because of his ill health. Counsel for the applicant, Mr M Rennie, indicated that the applicant accepted that Mr Sanoulis was too ill to give evidence. Accordingly, the rule in Jones v Dunkel 1959 101 CLR 298 does not apply because the failure by Mr Ross Sanoulis to give evidence is not unexplained. It is not appropriate in this case to infer that Mr Ross Sanoulis' evidence would not have assisted the respondents' case. It is still however open to this Court to accept the evidence of Ms Anastasas in relation to her conversation with Ross Sanoulis.
Paul Sanoulis
Mr Sanoulis gave evidence that he has been a partner in Carillon Kebabs since 1993. Soon after he became a partner, Mr Sanoulis left Australia to study overseas. Mr Sanoulis said that when he returned to Australia at the end of 1993 or the beginning of 1994 he became more involved in the business.
Mr Sanoulis said that at the beginning of 1994 he understood that Ms Anastasas was employed as a casual employee because of her irregular hours and because she was called upon to work when it was necessary. He said that he was aware that at the beginning of 1994 Ms Anastasas was not on the books. When he was asked whose idea it was that Ms Anastasas should go on the books, Mr Sanoulis said that it was "a mutual idea between my family, but one that I instigated because I couldn't really see the point of having a person not on the books when that money that you're paying this person is being lost from the business and you cannot - I mean you cannot even have it as a tax deduction. . . . They were declaring the income but not declaring all the expenditure, so it's like money out of their pocket." Mr Sanoulis said that the partners discussed this with their accountants and Ms Anastasas' terms of employment were explained to her by Ms Skokleski. In cross examination Mr Sanoulis still maintained that the partnership was declaring all of its income before Ms Anastasas was placed on the books. He admitted that in 1996, the partnership declared an extra $10,000 worth of income for the 1993/1994 financial year and an extra $3,000 worth of income for the financial year ended 30 June 1995. He said that those figures were calculated by Ms Skokleski and himself based on information that he provided to her. He said that he did not know where the information about the income came from and that Ms Skokleski would have to be asked about that. He said he obtained the information from himself and from his family. There were no business records. Mr Sanoulis later said that he was not aware that there had been undisclosed income for those two financial years, and said that he did not tell Ms Skokleski anything about income.
Mr Sanoulis stated that the wages book for December 1994 showed that Ms Anastasas was paid at a rate of $9 per hour at that stage. The rate increased to $11 per hour on 23 December 1994. Mr Sanoulis said that he thought the change in rate of pay took place because the awards changed or that Ms Anastasas had some agreement with his parents as to what was the rate of payment. Mr Sanoulis said that he did not have any involvement with Ms Anastasas regarding the rate at which she would be paid at that particular time. He said that he thought that $11 per hour was the applicable rate for a casual employee at that time. During cross examination Mr Sanoulis was asked whether he accepted that when Ms Anastasas first started working in 1993 she was paid $9 per hour. Mr Sanoulis then said that he did not accept that and that to the best of his knowledge it was $10 per hour. Mr Sanoulis said that he was not present at the time that Ms Anastasas was paid $9 per hour and did not know about the drop in wages or why that agreement happened.
Mr Sanoulis stated that in June 1995 his parents went on a trip to Greece and he and his girlfriend, Irena Morris, took over the running of the business. He said that there was no change in the nature of Ms Anastasas' duties at that stage. The only difference was that he gave Ms Anastasas a key and told her to open up the shop. He said that Ms Anastasas worked Monday to Friday from 10 am until between 2 pm and 4 pm. He said that the work Ms Anastasas had to do in that position was not very challenging.
Mr Sanoulis said that he first heard about any workplace injury allegedly suffered by Ms Anastasas in February 1996. He said that she never spoke to him about any kind of physical difficulty or physical symptom which was causing her concern while she was at work.
Mr Sanoulis gave evidence that approximately one month before his parents returned, in the beginning of August 1995, Ms Anastasas approached him at the shop and said "that she wanted to finish work, she wanted to stop work, her reasons being that something in regard to pension entitlements of her husband, herself and that she was just generally tired and didn't want to work any more." He said that there was no possibility that he misunderstood what she was saying when she was talking about her intentions. Mr Sanoulis said that he said to her "what do you intend to do if you stop working" and Ms Anastasas said "I don't know, rest, take it easy, maybe I might go to Greece for holiday". Mr Sanoulis was clear in his evidence that Ms Anastasas never spoke to him about having a holiday from her employment with Carillon Kebabs in the sense of taking some time off and then returning to work. Mr Sanoulis stated that he did not particularly want her to leave her employment.
Mr Sanoulis said that two or three weeks after that initial conversation, he spoke to Ms Anastasas and requested that she stay on for a week or two after his parents' return to enable them to rest and get over their jetlag. Ms Anastasas was initially unhappy but finally agreed to that. After his parents returned, they stayed home for a week and then came back to the shop. Ms Anastasas stayed on for the first week of his parents' return to the shop.
Mr Sanoulis said that he did not have any recollection of the last day on which Ms Anastasas worked. He said that the day was not made special for her in any way at all. He said that this was because Ms Anastasas had come and gone many times and it just was not an issue.
Mr Sanoulis said that after Ms Anastasas finished work, he was approached on two occasions to provide her with some documents that she requested. Ms Anastasas did not raise with him at all the question of whether or not she had been sacked or had voluntarily left employment.
In relation to the question of workers' compensation, Mr Sanoulis said that the firm had workers' compensation coverage from January 1995. Mr Sanoulis said that to his knowledge, the partnership did not have workers' compensation insurance between 1993 and the beginning of 1995.
In relation to the amended tax statements, Mr Sanoulis said that for the 1993/1994 periods, he estimated the number of hours that Ms Anastasas had been working. He said that they correlated to the amount of hours that she was working after that period of time.
Mr Sanoulis said that he did not recall Ms Anastasas ever getting changed at the shop or leaving any clothes at the shop at all. He said that he could not say whether she did leave any possessions at the shop when she left in September.
Mr Sanoulis said that he first approached possible witnesses to support the respondents' case between March and July 1996.
Athena Kalintsis
Ms Kalintsis gave evidence that she worked for Carillon Kebabs in 1995. She worked in the evenings between 5 pm and 7 pm. Sometimes if Ms Anastasas was late, she would see her at the shop. Occasionally she and Ms Anastasas would work together on Saturdays or Sundays. They got on very well together. Ms Kalintsis said that one afternoon she went to work a bit earlier and Ms Anastasas was there. According to Ms Kalintsis, she was cutting onions when Ms Anastasas said to Paul Sanoulis "I have to stop because my husband is going to go on the pension and they will stop the money." Mr Sanoulis then told Ms Anastasas "oh, please stay for one or two weeks more until my parents come" and Ms Anastasas accepted. Ms Kalintsis said that she did not speak to Ms Anastasas about the matter on that day, but on another day Ms Anastasas told her that she had to stop work because they would "stop the money".
During cross examination Ms Kalintsis said that this conversation took place at the end of August or the beginning of September 1995. When questioned about whether Ms Anastasas said that her husband was getting a pension or had got a pension, Ms Kalintsis said "that he would get a pension", and that he had not got the pension yet and that was why she wanted to stop work. When asked in cross examination whether it was possible that Ms Anastasas might have said that she may have to reduce her hours, Ms Kalintsis answered that it was not at that point of time but it could be that they spoke later at another time. When asked when the first time was that she spoke to anyone about what she had said in an affidavit sworn in 1996 Ms Kalintsis said "in June, I don't remember when it was, August or September, I don't remember. October or November, I don't know, I don't remember."
Ms Kalintsis confirmed that Ms Anastasas left her clothes at work sometimes.
Lydia Skokleski
Ms Skokleski gave evidence that she was an accountant and a partner in the firm of Digney Skokleski. Ms Skokleski said that she personally became involved in the accountancy practice for Carillon Kebabs about three years ago. When Paul Sanoulis went to America, his parents needed somebody to go down and help out with the wages. They kept the wages records and the group tax book. Ms Skokleski said she started preparing the wages book in November 1994. She said that Ms Anastasas asked her whether she was going to be part-time, full-time or casual and Mr Ross Sanoulis said he wanted her to be casual because the hours would have varied. Ms Skokleski said that she spoke to Ms Anastasas about the basis of her employment on a number of occasions.
Ms Skokleski said that in November 1994 Mr Sanoulis was paying Ms Anastasas $9 per hour. The casual rate was actually $11 per hour and Ms Skokleski informed Mr Ross Sanoulis of that. Mr Sanoulis then put the wage rate up after a few weeks. The casual award rate was actually $11.20 per hour but, according to Ms Skokleski, Mr Ross Sanoulis and Ms Anastasas agreed that she be paid at the rate of $11 per hour. Ms Skokleski said that she explained the difference between a casual, full-time and part-time employee, and Ms Anastasas also spoke to her about workers' compensation and superannuation. Ms Skokleski said that at that time the shop did not have workers' compensation but it was fixed up later. Ms Skokleski said that she could not remember speaking to Ms Anastasas after workers' compensation insurance had been secured.
Ms Skokleski gave evidence that in 1996 Paul Sanoulis told her that the firm wanted her practice to do some amendments to the tax because Ms Anastasas had worked for Carillon Kebabs before November 1994. That had not previously been disclosed to her accountancy firm. When Ms Skokleski came to the firm in November 1994 she understood that Ms Anastasas had only been working for Carillon Kebabs for a week or just a few weeks. Once Paul Sanoulis had told her that the firm wanted to apply for an amendment to two years of partnership tax returns, she wrote to the Tax Office. Ms Skokleski prepared some documents on 12 June 1996. She said that the figures she used in order to make the calculations for the adjustment were given to her by Paul Sanoulis. It was a calculation based on the amount of hours Ms Anastasas worked per week over so many weeks and the amount of money that she was paid. Ms Skokleski said that Paul Sanoulis helped her to do the calculation. The calculation of additional sales income equalled the calculation of additional wages because the wages had been paid out of cash. The information was given to her by Paul Sanoulis and she had to take his word for it. There were no documents to support the figures given to her. There was no way she could check their accuracy. The Sanoulis family had always told her that they did not have any employees before November 1994.
George Anastasas
Mr Anastasas is married to the applicant in these proceedings. He was served with a subpoena by the respondent. Mr Anastasas gave evidence that he took a redundancy package on 8 July 1995 from his previous employment with WestRail. He applied for a disability support pension soon afterwards. Mr Anastasas produced a letter from the Department of Social Security which showed that his disability support pension was granted from 13 July 1995. That letter stated that if the total combined income from his and his wife's wages and accounts exceeded the sum of $275.71 per week, the Department had to be notified. Mr Anastasas said that he knew when he took the redundancy package that he would be going on a disability support pension. He said that he applied for the pension on 13 July 1995 and received notice that it had been granted on 15 August 1995. Mr Anastasas said that he did discuss with his wife that if she earned over $275 per week gross they would have to tell the Department of Social Security.
Mr Anastasas stated that in the financial year ending 30 June 1993, and in the year ending 30 June 1994, he claimed a dependent spouse rebate for his wife. He said he did not do that in the year ending 30 June 1995 because he got into trouble through Mr Sanoulis not giving his wife a group certificate. Mr Anastasas said that he had done his tax and "got kicked in the backside from the Deputy Commissioner of Taxation. And I learned my lesson. I got my fingers burnt once. No more". That was in the year ending 1994. Mr Anastasas said that he took the forms to tax agents and they completed the tax forms for him. He told the tax agents that his wife was employed and earning money. He could not produce a group certificate for the tax agents in relation to his wife. Mr Anastasas said that he did not know what the threshold was for a spouse's income before they were not able to claim a dependent spouse rebate. He said he discussed it with H & R Block and they prepared the documents.
In cross examination Mr Anastasas said that he was born in Australia of Greek parents. He has never been to Greece and his wife has never been back to Greece since they have been married. During the months of July and October 1995, they never discussed going to Greece and they did not have any plans to do so.
Mr Anastasas said that he was aware of his wife complaining about problems in her right hand and right arm during 1994 and 1995.
Sam Rufino
Mr Rufino gave evidence that he is a pizza maker in the Carillon Food Hall. He has known the Sanoulis family for some time through working at the outlet next door to the Carillon Kebabs.
Mr Rufino said that he saw Ms Anastasas probably every day during 1995 and would speak to her "at least probably once a day in the morning, or a couple of times if you see her in the afternoon as well". He said that they would just chat about every-day sorts of things. Mr Rufino said that around September 1995 Ms Anastasas spoke to him about her employment with Carillon Kebabs. According to Mr Rufino, Ms Anastasas said that when Mr and Mrs Sanoulis came back from Greece, that "she would leave, or be finishing up and wouldn't work there any more". Mr Rufino said that the reason she gave to him was that she used to work too hard when they were there, and she did not want to do that any more when they got back. During cross examination Mr Rufino said that this conversation would have taken place probably mid-morning and would have had to be before lunch time because they cannot go out at any other time of the day. When asked in cross examination whether Ms Anastasas mentioned taking a holiday, Mr Rufino said "no, not that I can remember" and said that he was certain of that. When pressed, however, about swearing an affidavit in July 1996 in which he stated that Ms Anastasas had said that she was going to stop work and go on holiday, Mr Rufino said that he did not remember "holiday" but that he must have said that in an affidavit. During cross examination, Mr Rufino agreed that Ms Anastasas might have said that she was going to go on holiday. Further on in cross examination Mr Rufino said that Ms Anastasas did not use the words "finish up" but said that she had said that she was going to leave and not work there any more. Mr Rufino agreed that he had said in his affidavit "the applicant said to me that Mr and Mrs Sanoulis were too hard to work for and that she was going to stop work and go on holiday". He said that he could not remember those words at the time of the hearing. In re-examination Mr Rufino said that the words used in the affidavit was what he had said when he was first questioned about the matter. To his understanding, however, she was not going to come back.
Irena Morris
Ms Morris gave evidence that she is a management consultant and lives with Paul Sanoulis and his parents. Ms Morris said that she worked at Carillon Kebabs from the beginning of June through to September 1995 while Mr and Mrs Sanoulis were in Greece. Ms Morris said that she developed a close working relationship with Ms Anastasas and they got on very well. When asked whether Ms Anastasas said anything to her about her intentions with regard to her employment at Carillon Kebabs, Ms Morris said "yes, I do know that she had said that she wanted to stop working. Her husband was going to go on some sort of pension. I don't know what the exact details were, so he was going to receive this lump sum amount and she was going to stop working because they didn't want to reach the threshold or something like that. She'd also spoke about travelling to Greece . . .". When asked whether this information came from Ms Anastasas in one conversation or more, Ms Morris said "after she had given her notice to Paul, she now had numerous conversations as we stood up front serving customers or at the bench or cleaning, working together, telling me about her plans, so we had several conversations." Ms Morris said that she knew that Mr Anastasas had worked for many years in the railways and he was expected to stop working soon. Ms Morris said that she was present at a conversation in the beginning of September 1995 when Paul Sanoulis was asking Ms Anastasas to stay on for an extra period of time while his parents came back, "so she had already given her notice, and he found out what the exact date of their arrival was going to be, and so what he was trying to do was negotiate a sort of time with her that she would stay extra . . .". Ms Morris said that Ms Anastasas did not speak about holidays short of travelling to Greece.
According to Ms Morris, on the last day that Ms Anastasas worked there was nothing about that day to differentiate it from any other day.
In cross examination Ms Morris said that the conversations where Ms Anastasas was talking about leaving took place in September 1995. Ms Morris said that the reason Ms Anastasas gave to her for leaving was that her husband was going to receive some money and they did not want to reach a certain threshold for tax purposes. When asked what her response would be if she was told that Mr Anastasas received the money a couple of months before September, Ms Morris said that she would be very surprised.
In cross examination Ms Morris agreed that Ms Anastasas stated to her that she was tired and that she was looking forward to the time when she would not be working. Ms Morris said that her belief was that the last day that Ms Anastasas worked in September was to be the last day of her employment.
THE CREDIBILITY OF THE WITNESSES
Maria Anastasas
The impression I gained from observing the demeanour of Ms Anastasas was that she gave evidence in an honest and candid manner. Written submissions, however, have been filed on behalf of the respondents seeking to attack the credibility of Ms Anastasas in a number of ways:
It is said that Ms Anastasas contradicted her own case almost immediately by conceding that she was employed as a casual employee and that she understood that having spoken to Ms Skokleski. In fact, Ms Anastasas said that she was told by Ms Skokleski that she was working as a casual but she was confused because at one stage Mr Ross Sanoulis reduced her pay to $9 per hour and said that she was working on a part-time basis. The question of whether or not Ms Anastasas was a casual employee will be dealt with further below.
It is said that Ms Anastasas gave evidence of giving notice and then corrected herself but that this is the kind of slip which indicates the true belief of a witness. In fact Ms Anastasas was giving evidence about her conversation with the Sanoulis family. Her evidence was that the Sanoulis family said "give us one week notice so we can - give us another week to find another lady". Her evidence was that they used the word "notice" first. In any event, giving "notice" is not inconsistent with warning her employer that she wished to go on holiday. That was the explanation Ms Anastasas gave.
The respondent referred to Ms Anastasas' conversation with Mr Ross Sanoulis in which he said "you think I can't sack you" and she said "no, you can't". It was submitted that the applicant's motive and reasoning in bringing the action for unfair dismissal becomes apparent in the light of her conduct, in that at all material times she was clearly aware and understood that the then recent amendments to the Industrial Relations Act put employees in a significantly stronger position to bring actions for unfair dismissal. The evidence does not establish that Ms Anastasas was at the relevant time aware of the unlawful termination of employment provisions of the Act. Ms Anastasas gave evidence that she considered she had a binding agreement with Mr Ross Sanoulis that she had permanent employment, and that that was the reason why she agreed to leave her former employment. She believed that because of this binding agreement, Mr Sanoulis could not sack her.
It is submitted that in order to obtain Social Security benefits from 30 October, Ms Anastasas told a simple lie to the CES, namely, that she was dismissed. It is alleged that when Ms Anastasas later decided that she wished she had not resigned, she had mentally already started to contrive the story of being terminated by her initial lie to the CES. It is my view that the submissions of the respondent in this respect are simply not supported by the evidence. The fact that Ms Anastasas did not apply for JobSearch allowance until after she said she was told by Mr Sanoulis that the business had been sold supports her evidence.
It is said that the applicant understood that as a casual employee she did not have to give or be given notice and that this was consistent with the need to negotiate notice after the applicant had said she wished to finish work when Mr and Mrs Sanoulis returned from Greece. I have already said that the question of "notice" may also be consistent with giving notice of intention to go on leave. The question of the status of Ms Anastasas' employment will be dealt with in more detail further on in these Reasons for Judgment.
It is said that the applicant was not at all candid as a witness and that she evaded simple questions. My impression of the demeanour of Ms Anastasas was that she was candid. Any difficulties occurred, in my view, because of the fact that English was not her first language.
It is said that the applicant admitted that she discussed with Ms Morris and Ms Kalintsis before she finished work the question of whether her income from her employment would affect her husband's pension. Ms Anastasas did indeed admit that she discussed these questions with several people in about July or August, but said that that issue had been sorted out long before she left in late September 1995. The documents from the Department of Social Security and the evidence of Mr Anastasas, who was called by the respondent, support the applicant's contention that she knew before she applied for leave that her husband's pension would be unaffected if their combined gross weekly earnings were $275 per week.
It is said that the applicant admitted that she was only advised by the Department of Social Security after she left work that she could have an income and her husband still receive the pension. The passage of the evidence referred to by the respondent in this regard does not necessarily support that contention. In fact, the question asked of Ms Anastasas was "you believed it was true that if you had an income that would affect your husband's pension, did you not?" The answer was "if the thing come to that, yes, I probably would, but I didn't. It didn't come to that and I didn't resign and I didn't say I'm going to leave . . .". Ms Anastasas did note that her income could affect her husband's pension and it is clear that it would have done so if her income had been greater that $275 per week. The average income of Ms Anastasas during a normal week of employment was less than $275. Later on in the evidence Ms Anastasas said that the question of her income affecting her husband's pension had been sorted out before she applied for leave and as I have already said, the documentary evidence in this case supports that contention.
It is said that Ms Anastasas admitted that she had a good relationship with the Sanoulis family prior to September 1995, and that in assessing the weight to be given to the evidence of Paul Sanoulis, Ms Morris and Ms Kalintsis, it is relevant that the applicant obviously interacted with these three people more openly and more easily than at any other time she worked at Carillon Kebabs. It is said that the evidence that she was happy and looking forward to finishing work was totally consistent with this. In fact, Ms Anastasas admitted having conversations earlier than September with Paul Sanoulis, Ms Morris and Ms Kalintsis about her concern over her husband's pension. I will deal with the evidence of the respondent's witnesses in detail further on in these reasons for judgment.
It is submitted that the applicant admitted that it was with Paul Sanoulis that she had the conversation about what would happen with regard to her employment when Mr and Mrs Sanoulis returned from Greece. In fact, Ms Anastasas said that she spoke to Paul Sanoulis about applying for holidays but considered that as she had an agreement with Mr Ross Sanoulis about her employment, it was appropriate that she speak to him about any other issues affecting her employment.
It is said that in the course of cross examination, the applicant gave long rambling and unresponsive answers which had the hallmark of a witness who wishes to evade the questions and justify her own position. It was my view based on the demeanour of Ms Anastasas that she was a credible witness and that any difficulties with her evidence arose as a result of the fact that English was not her first language.
It is said that the applicant has a fundamental problem in suggesting any cogent motive for an unfair dismissal. It was said that in a letter to the Sanoulis family of 7 February 1996, the applicant clearly suggested the alleged dismissal was in some way due to her alleged injury, whereas at the hearing the applicant alleged that the motive for termination was anger at the applicant's request to be put on the books. The evidence of Ms Anastasas in relation to the letter was that she went to the Legal Aid Commission and a non-legal member of staff drafted the letter in question for her. Ms Anastasas made several references to the fact that Mr Ross Sanoulis gave her the impression that he was trying to get rid of her.
Mrs Sanoulis
In assessing the credibility of Mrs Sanoulis I have taken into account her age, the fact that she is illiterate and uneducated, and that she cannot speak English. Even making allowances for all of these things, I have come to the view that Mrs Sanoulis was not at all a credible witness. Even her own counsel in his submissions states "it could not be said that Mrs Sanoulis was an impressive witness in that she was not totally cooperative even with her own counsel." Some of the evidence Mrs Sanoulis gave was plainly incorrect, for example, she claimed that Carillon Kebabs had at all times been covered by workers' compensation insurance. Although Mrs Sanoulis, because of her illiteracy, may be expected to not know about some aspects of the business, she gave evidence consistent with her own case confidently but claimed to have a poor memory in relation to matters which might assist the case of Ms Anastasas.
Paul Sanoulis
On behalf of the respondents, it was submitted that Paul Sanoulis presented as a competent, honest witness who was never moved in cross examination. On behalf of the applicant, it was submitted that in considering the weight of Mr Sanoulis' evidence, it is to be noted that he insisted on remaining in Court during cross examination of his mother. At the hearing of this matter, at the start of the cross examination, Mr Rennie made an application to have Mr Sanoulis excluded from the court during the cross examination of his mother. Mr Sanoulis opposed that application. I stated that it was my view that as Mr Sanoulis was a party, he was entitled to remain in court but that when it came to assessing the weight of his evidence, I would have to take into account the fact that he remained while his mother was cross examined. It was submitted on behalf of the respondent that it is improper to suggest that the weight of a party's evidence should be affected in any way by that party being present in court. I do not agree with that submission. In many material respects, the evidence of Paul Sanoulis covers occasions on which his mother was not present. In some respects, however, it appeared to me that Mr Sanoulis tailored his evidence so as not to conflict with the evidence given by his mother. For example, Ms Anastasas gave evidence that she was paid either $9 per hour or $11 per hour during the time of her employment at Carillon Kebabs. Mrs Sanoulis said that she was paid $10 per hour. The only documentary evidence, namely the wages book, supports the evidence of Ms Anastasas in this regard. Paul Sanoulis gave evidence that at one stage Ms Anastasas was paid $10 per hour. I am inclined to reject that evidence. Further, Mrs Sanoulis said that the partnership declared all of its income. Paul Sanoulis gave evidence that before Ms Anastasas started paying tax, the partnership had always declared all of its income to the taxation office and that he instigated placing Ms Anastasas on the books because the partnership was losing money as it was unable to claim any deductions in relation to her. This evidence is plainly incorrect in view of both the documents submitted by the partnership to the Australian Taxation Office which declare both extra income and extra expenditure, and the evidence given by Ms Skokleski that Paul Sanoulis had provided her with information about extra income earned by the partnership and not previously declared. During cross examination Paul Sanoulis claimed not to know where the figures for the extra income came from. This conflicted with the evidence of Ms Skokleski who stated that Paul Sanoulis was the one who provided her with the relevant information relating to that additional income. It is such areas of concern about the evidence of Mr Sanoulis plus my observations of his demeanour which lead me to conclude that he was not as credible a witness as Ms Anastasas.
Athena Kalintsis
Ms Kalintsis' evidence was that she was present at a conversation when Ms Anastasas said to Paul Sanoulis "I have to stop because my husband is going to go on the pension and they will stop the money". It is true that Ms Kalintsis was unmoved in cross examination about this issue. I consider it highly probable that Ms Kalintsis was present at a conversation which covered that subject matter. However, I consider that she is simply mistaken about the timing and effect of that conversation. In the first place, the documentary evidence and the evidence of both Mr and Ms Anastasas shows that Mr Anastasas went on the pension well before Ms Anastasas raised with Paul Sanoulis the question of taking time off. Ms Anastasas herself admits that she had conversations of this nature with Mr Sanoulis and Ms Kalintsis. Apart from the timing of the conversation, it is my view that the evidence of Ms Kalintsis is not necessarily inconsistent with the evidence of Ms Anastasas. I consider that it is likely that Ms Kalintsis, due to passage of time, has confused the many conversations with Ms Anastasas and Mr Sanoulis over this period.
Lydia Skokleski
It is submitted on behalf of the respondents that the evidence of Ms Skokleski is completely consistent with the respondents' case and makes it clear that the applicant has been less than forthright in her evidence regarding her understanding of her employment status at all times; her obligation to pay tax; her knowledge of the respondents' coverage for workers' compensation and superannuation; and the general attitude of the respondents to comply with the various requirements relating to the applicant's employment. I do not agree with that submission. In the first place, Ms Skokleski gave evidence that the respondents told her that before November 1994 the partnership had no employees. Secondly, Ms Skokleski's evidence conflicts with the evidence of Paul Sanoulis to the extent that Paul Sanoulis claimed to have no knowledge of the source of the partnership's understated income during the 1993/1994 period whereas Ms Skokleski's evidence was that Mr Paul Sanoulis gave her that information. Thirdly, although Ms Skokleski did speak to Ms Anastasas about the basis of her employment, it was the evidence of Ms Anastasas that Mr Ross Sanoulis later told her that she was to change to part-time work. Further, Ms Skokleski's evidence demonstrates that she did not in fact tell Ms Anastasas about the fact that the partnership later acquired workers' compensation insurance. I had no reservations about the evidence of Ms Skokleski but I do not consider that her evidence corroborates that of Paul Sanoulis in all relevant details.
George Anastasas
It was submitted on behalf of the respondents that Mr Anastasas gave evidence all of which was consistent with the respondents' case, and that his evidence demonstrates conclusively that the applicant was a willing participant in the failure to declare her employment to the Australian Taxation Office. It is my view that there is no basis for this submission. There is simply no evidence that Ms Anastasas agreed that her husband should claim a dependent spouse rebate. The evidence of Mr Anastasas was that he explained the situation to his tax agents who prepared the taxation documents for him. Mr Anastasas said that he told the tax agents of his wife's employment. Further, the evidence of Mr Anastasas supports that of his wife to the extent that it confirms that he received a redundancy package in early July 1995 and that he started receiving a disability support pension with effect from 13 July 1995. The letter from the Department of Social Security produced by Mr Anastasas showed that by 15 August 1995 he and his wife knew that they could have a combined weekly income of $275 without his pension entitlements being affected. It was my view that the evidence of Mr Anastasas supported the evidence of his wife that any conversations she had with the people who worked at Carillon Kebabs about her concern regarding her husband's pension entitlements was sorted out before she applied for some time off.
Sam Rufino
Mr Rufino is an independent witness. His evidence that Ms Anastasas said to him that when Mr and Mrs Sanoulis came back from Greece she would leave and would not work there any more must be seen in the light of his acknowledgment that he swore an affidavit in July 1996 stating that Ms Anastasas had told him that she was going to go on holiday. Because of this, although I accept that Ms Anastasas discussed the question of "leaving" when Mr and Mrs Sanoulis returned, I did not accept that she told Mr Rufino that she would be finishing up or that she would not be working there any more.
Irena Morris
When she gave evidence, Ms Morris' demeanour did not give me any cause for concern. Ms Morris' recollection of the conversation with Ms Anastasas was that Ms Anastasas told her that she was going to stop working because her husband was going to receive a lump sum amount and he was going to go on a pension and they did not want to reach the threshold. Although Ms Morris gave evidence that this conversation occurred in September, she said she would have been very surprised to have learned that Mr Anastasas received the money a couple of months before September. I consider it likely that Ms Morris does recollect a conversation with Ms Anastasas about that general subject matter, but that it occurred well before the period in September when Ms Anastasas was applying for leave.
Conclusion
At the hearing of this matter I observed the demeanour of the witnesses and I gained a very favourable impression of Ms Anastasas and a less favourable impression of Mr Paul Sanoulis and his mother. As I was concerned about the evidence of the three or four other witnesses who appeared to support the respondents' case, I have read the transcript of their evidence very carefully. The evidence was that as Ms Anastasas did not commence her proceedings until February 1996, the respondents did not approach their witnesses until somewhere between March and July of 1996. The witnesses were asked to recollect conversations with Ms Anastasas which had occurred some nine to twelve months previously. In these circumstances, it is not surprising that recollections fade. I am not criticising the respondents because of this. It is my view that although Ms Kalintsis, Mr Rufino and Ms Morris were not untruthful in their evidence, they were simply wrong in some of their recollections, and in particular the timing of those recollections. In assessing the evidence, taking into account:
The fact that Mr Anastasas' redundancy package and pension was sorted out in the July to August period;
Ms Anastasas left her clothes and belongings at Carillon Kebabs when she left in late September and came back to retrieve only a pair of earrings during the time she was on "holiday";
Ms Anastasas did not apply for JobSearch allowance until after she had been told by Mr Sanoulis that the business was sold; and
The timing of Ms Anastasas' requests for a letter to the Department of Social Security and a reference,
I consider that the circumstantial evidence, much of which is documented, supports the evidence of Ms Anastasas in this matter. For these reasons, and the reasons I have expressed in relation to the credibility of the witnesses, I consider that the evidence of Ms Anastasas is to be preferred over the evidence of the respondents to the extent that there is any conflict. Although I do not draw an inference that the evidence of Mr Ross Sanoulis would not have assisted the respondents' case, I am prepared to accept the evidence of Ms Anastasas in relation to her alleged conversations with Mr Ross Sanoulis. In these circumstances, I find that there was a termination at the initiative of the employer on or about 20 October 1995, when Mr Sanoulis told Ms Anastasas that she could not return to work because the business had been sold and the buyers had their own staff. This Court therefore has jurisdiction to determine the claim of Ms Anastasas.
WAS MS ANASTASAS A CASUAL EMPLOYEE FOR A
SHORT PERIOD?
It was submitted on behalf of the respondents that Ms Anastasas was a casual employee who could not be said to have a reasonable expectation of continued employment within the meaning of Regulation 30B.
Under the provisions of Regulation 30B(1)(d), a casual employed engaged for a short period is excluded from the unlawful termination of employment provisions of the Act. Regulation 30B(3) defines a casual employee engaged for a short period as follows:
"30B(3) [Casual employees engaged for a short period] For the purposes of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:
(a)the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months; and
(b)the employee has, or but for a decision by the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer."
I do not accept that Ms Anastasas knew that the business was to be sold. I accept her evidence that Mr Ross Sanoulis told her that she was to have permanent employment with Carillon Kebabs and as such she had a reasonable expectation of continuing employment by her employer. As Ms Anastasas had been employed by Carillon Kebabs for a period of well over six months, she was not a casual employee for a short period.
In addition, although the parties may have elected to describe Ms Anastasas as a "casual" employee, I have some doubt about whether Ms Anastasas was a "casual employee" within the meaning of those words in Regulation 30B, in view of the decision of Moore J in Reed v Blue Line Cruises Limited, unreported, IRCA 571/96, 26 November 1996. It is not necessary for me to decide that issue in view of my finding that she was not in any event engaged for a short period. The evidence of Ms Anastasas was that she worked five days a week, between at least the hours of 10 am and 3 pm for a period of almost two years without a break. It appears to me that Ms Anastasas' employment by Carillon Kebabs was not informal, uncertain and irregular in the way described by His Honour Moore J in Reed's case as being the hallmarks of casual employment.
HAS THERE BEEN ANY BREACH OF THE ACT?
The respondent conducted its case on the basis that this Court had no jurisdiction to hear the application of Ms Anastasas. No evidence was called by the respondent in relation to whether or not it had a valid reason for the termination of Ms Anastasas' employment. The respondent bears the onus of proof in relation to an alleged breach of section 170DE(1). It has not discharged that onus. Further, Ms Anastasas was not paid any money in lieu of notice as required by the provisions of section 170DB. In these circumstances, I am satisfied that there has been a breach of the provisions of sections 170DB and 170DE(1) of the Act.
THE APPROPRIATE REMEDY
It is common ground that to order reinstatement would be impracticable because Carillon Kebabs has now been sold. In these circumstances, the appropriate remedy is an award of compensation. Under the provisions of section 170EE(2) of the Act, if the Court thinks that the reinstatement of the employee is impracticable, the Court may, if the Court considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate. Section 170EE(3) states that in working out the amount of the compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employee's employment. The remuneration must not exceed the amount of the remuneration that the employee would have received in respect of a period of six months that immediately follow the day on which the termination took effect. The evidence was that Ms Anastasas received on average $265 per week from her employment by the respondent. It is likely that she would have continued to have received that amount if her employment had not been terminated. It was submitted on behalf of the applicant that the appropriate award would be the maximum amount of six months' wages plus damages reflecting the extra tax and penalties paid by the applicant. I do not agree with the second part of that submission as damages were not claimed when the application was originally filed. Such an order may not in any event be appropriate.
As Ms Anastasas is over 45 years of age, she should have been given three weeks' notice of termination under the provisions of section 170DB(2). The evidence is that Ms Anastasas has attempted to find alternative work but has been unable to do so. This is not surprising considering her age and her lack of skills. In this case, I consider it appropriate in all the circumstances to award a full six months' wages by way of payment of compensation.
The orders are as follows:
The respondent pay to the applicant the sum of $795 by way of payment in lieu of notice.
The respondent pay to the applicant the sum of $6,490 by way of compensation for the unlawful termination of her employment.
These amounts be paid within 28 days of the date of this order.
I certify that this and the preceding thirty-eight (38) pages
are a true copy of the reasons for decision of
Judicial Registrar Boon.
Associate:
Date: 2 May 1997
APPEARANCES
Counsel for the Applicant: Mr M Rennie
Solicitor for the Applicant: Michael Rennie
Counsel for the Respondent: Mr C McKerlie
Solicitor for the Respondent: Colin McKerlie
Date of hearing: 5, 6 and 10 February 1997
Written submissions filed: 24 February, 11 March and 2 April 1997
Date of judgment: 2 May 1997
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