Angelo Molfessis and Michael Piacquadio
[1994] IRCA 113
•18 November 1994
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - resignation - probation - engagement under a contract of employment for a specified period of time
Industrial Relations Act 1988, SS170CC, 170DC, 170DE, 170EA
R v Prince Alfred College 46SAIR (pt1) 598
Weller v Transport Superannuation Board (1989) 4 VIR353
TWU (WA) v Eastern Gold Fields Transport Board 1989 31AILR398.
Im Kim Qui v Steyi Nursing Home (1993) 5VIR.237
Nicolson and Heaven and Earth Gallery Pty Ltd 20 September 1994 (NI127 of 1994)
ANGELO MOLFESSIS AND MICHAEL PIACQUADIO (TRADING AS QUADIO HAIR SALONS)
No. VI-116/94
Before: Ryan JR
Place: Melbourne
Date 18 November 1994
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI 116/94
B E T W E E N: ANGELO MOLFESSIS
Applicant
AND:
MICHAEL PIACQUADIO (TRADING AS QUADIO HAIR SALONS)
Respondent
RYAN JR
MINUTES OF ORDER
18 November 1994
THE COURT ORDERS THAT:
The applicant’s application be dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI 116/94
B E T W E E N: ANGELO MOLFESSIS
Applicant
AND:
MICHAEL PIACQUADIO (TRADING AS QUADIO HAIR SALONS)
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 18 NOVEMBER 1994
THE APPLICATION
The applicant Angelo Molfessis seeks reinstatement or compensation. He states he resigned from a secure, full-time position as a hairdresser after being promised a more rewarding position with the respondent.
He took up a position he has described as “senior stylist” on Monday 21 March 1994. Thirteen days later, on Saturday 2 April 1994 the employment ended.
Michael Piacquadio, the respondent, runs three hairdressing salons in partnership with his wife Jadranka (Judy) Piacquadio.
The applicant, claims that the respondent sacked him as a hairdresser after a brief period of employment and seeks the usual remedies under Section 170EE.
The respondent states that the applicant resigned. The versions of fact given by both parties are markedly different.
Five questions arise and all are addressed although it is not necessary to make findings on all five questions.
The questions are
(1)Was the applicant on probation?
(2)Was the applicant engaged under a contract of employment for a specified period of time?
(3)Did the applicant resign?
(4)Was the employment ended by an act of the respondent.
(5)If the employment was ended by an act of the respondent was it an unlawful termination which attracts remedy?
At the end of the day, once the Court has reached a conclusion on the contested facts one crucial factual situation remains for resolution and it can be summarised in the old rhetorical question - did he jump or was he pushed?
THE APPLICANT’S CONTENTIONS AS TO FACTS
The applicant claims that at approximately 5:30 p.m. on 2 April, after work had finished for the day, the respondent called him into a back room and indicated that the other staff did not like the applicant and that he (the respondent) couldn’t keep him on because it would cause trouble.
The applicant stated that he
(1)had worked all day from 9:00 a.m. to 5:30 p.m. without a lunch break
(2)had performed about 16 jobs
(3)was extremely upset by the comments of the respondent
(4)indicated that he would leave if that is what the respondent wanted.
The applicant further stated in his contentions of fact that the respondent had replied as follows:
“We can work something out. Let me think about it over the weekend. I’ll ring you on Tuesday. I’ll get you a job in our other shops. You can go on the dole and I’ll pay you cash. This happened to John, the staff did not like him. I had to find him a job at Centreway. Otherwise I was going to sack him.”
In contentions and at trial the applicant asserts that at no stage in the conversation on 2 April did the respondent or his wife raise the standard of his work. The only complaint made about him (the applicant asserts) was that the “staff did not like him”.
The applicant states that at no stage did he resign his employment with the respondent. He claims he left the shop on 2 April believing that the respondent would find him work in another one of his shops or he would continue employment at the same shop.
The applicant claims that on 5 April 1994 by telephone the respondent indicated that he could not provide the applicant with any work but that if the applicant were to ring him in the following week the respondent could provide him with some hours at Centreway (i.e. another salon conducted by the respondent) and he would be paid in cash. The applicant claims that someone would be going on holidays and the respondent then allegedly said that the applicant could be employed “on-call”. The applicant took this to mean that he would be employed on a casual basis when work was available. The applicant claims that he could not accept this proposal as he needed a full-time job. When the respondent allegedly indicated that this was not possible the applicant responded that he would be taking further action and he states that the respondent laughed and said “I’ll see you in Court”.
THE RESPONDENT’S CONTENTIONS AS TO FACTS
The respondent Michael Piacquadio, trades with his wife as Quadio Hair Salons. Mr. and Mrs. Piacquadio operate three hairdressing salons.
The respondent in contentions of fact and at trial through his evidence, the evidence of his wife and the evidence of another employee, Angela Bastos, gives a markedly different version of the facts. That version is generally summarised in the respondent’s contentions of fact as follows:
(1)The applicant approached the respondent seeking employment.
(2)In the course of discussions prior to the applicant commencing employment the applicant advised the respondent that he had been employed by a number of employers in the previous twelve months.
(3)Prior to the applicant commencing employment with the respondent it was agreed between them that there would be a period of probation of one month or alternatively, it was agreed between the applicant and the respondent prior to the applicant commencing employment that at the end of a period of one month each party would be in a position to decide whether to continue the contract of employment.
(5)A period of one month probation was a reasonable period having regard to the nature and circumstances of the employment.
(6)The applicant commenced employment on 21 March 1994.
(7)In the period that the applicant was employed there were a number of complaints about him including:
(a)a client who requested a refund in relation to a blow wave
(b)complaints from members of staff as to quality and timeliness and the applicant’s lack of knowledge and ability
(c)the applicant was told by the respondent on one occasion that a maximum time for a job was to be thirty to forty-five minutes.
(8)On Saturday 2 April the respondent raised with the applicant a number of complaints which had been made about the applicant.
(9)At that meeting the applicant offered his resignation which was accepted by the respondent.
(10)Subsequent to the applicant’s resignation the applicant was provided with all his outstanding wages due.
(11)On 5 April 1994 the applicant called the respondent and asked that his resignation be withdrawn and he be offered a position at another salon or on another basis. This was refused by the respondent.
ASSESSMENT OF EVIDENCE AND WITNESSES
It must be said immediately that I find the applicant an unreliable, unimpressive and inconsistent witness. While I accept that his solicitor drew up his contentions of fact I have no reason to believe that contentions reflect anything other than the applicant’s earlier recollection and instructions to his solicitor. He often gave sworn evidence that he had no recollection of matters which, in my view, were matters so simple and straightforward and important to his claim as to be unlikely to have been forgotten.
On at least two occasions, the applicant changed his sworn evidence when confronted with compelling evidence to the contrary. His evidence was constantly in conflict with that of the respondent and his three witnesses.
I find the respondent and his witnesses to be straightforward and direct witnesses and witnesses of truth. Their evidence stands in stark contrast to that of the applicant. Whenever there were occasions of conflict between the applicant’s evidence and that given by the respondent (and the occasions were legion) I preferred the evidence of the respondent and his witnesses. For completeness the Court records that this preference extends to the respondent’s evidence that the applicant initialled the Wages Book and received final payment on 2 April. Furthermore the Court accepts that the respondent has accurately described all documentary exhibits tendered on his behalf.
FINDINGS
RESIGNATION
The Court has concluded that the applicant resigned when confronted on 2 April with considerable elements of dissatisfaction with his performance which elements were outlined to him by the respondent immediately prior to the resignation.
I have no reason whatsoever to conclude that the respondent was under such pressure at that time as to be constructively dismissed. This is not a case like R v Prince Alfred College 46SAIR (pt1) 598 where the employee had no option but to resign. As in that case the employee here was the instrument of his own dismissal but it was not an action of the employer created by duress imposed on the employee. This was a resignation.
This is not a case like Weller v Transport Superannuation Board (1989) 4 VIR353 where the resignation was held to have not been a voluntary act but made under duress.
This is not a situation where intolerable behaviour of an employer forces an employee to resign, which at common law would be regarded as a constructive dismissal. See TWU (WA) v Eastern Gold Fields Transport Board 1989 31AILR398.
There is no evidence here that the respondent repudiated the applicant’s contract of employment thereby entitling the applicant to treat it as discharged. There is no evidence that the applicant was placed in a position whereby he was free to choose between involuntary resignation and dismissal. In these respects the case is similar to Im Kim Qui v Steyi Nursing Home (1993) 5VIR.237 and the same principles apply.
PROBATION
In the circumstances, the Court need not determine whether or not the applicant was on probation for a reasonable period and thus exempted from sub-divisions B,C,D and E of division 3 of Part VIA but, were it necessary to do so, I would probably on the balance of probabilities find that the applicant was on probation.
There was at trial a dispute between counsel as to whether, in examination in chief, Judy Piacquadio had described the applicant as happy with employment on a 4 week trial basis or opposed to such a trial. In fact the transcript shows that her evidence suggested that the applicant did not express opposition to a 4 week trial and this is also consistent with the evidence of the respondent. The transcript of her evidence on this issue reads as follows
“We briefly went through contracts, my husband had asked Angelo whether - told him basically that we were planning on the contracts for our salons and our staff, that was just briefly touched on. We’d also told him that he’d be on a four week trial if he was to start with us and he - that didn’t seem to faze him out at all.”
CONTRACT OF EMPLOYMENT FOR A SPECIFIED PERIOD OF TIME
The Court need not determine whether the applicant, apart from a period of probation, was otherwise on a contract for a specific term but if required to do so would probably find that, apart from probation, the applicant was not at the time of employment otherwise employed for a specific term by contract. I have no doubt that the respondent intended to put the applicant on a contract and a period of probation would have been reasonable and understandable in the circumstances particularly as the applicant concedes that he at no stage complied with the respondent’s request for models by which his former work and his hairdressing skill could have been judged.
In examination in chief the applicant stated
“there was a contract talked about but I never seen it. ... it was a contract talked about all around the salon. All the new staff had to sign a contract. ... He (the respondent) told me you got to sign a contract later on. That’s the only thing he told me”.
In my view the evidence of the applicant and the respondent of an intention to erect a contract increases the likelihood that the applicant was placed on probation and was so advised. However, it matters not. I have concluded the applicant resigned.
ADDITIONAL COMMENTS
It follows that this application should be dismissed and I so dismiss the application.
I will say by way of comment to the respondent and other employers that had I found that the applicant was not on probation and had not resigned then I might have found some degree of procedural unfairness. If a termination had taken place on 2 April without the applicant having a more adequate opportunity to respond to the allegations of unsatisfactory performance and provided with no more adequate counselling than the very minor and informal counselling or directions apparently given to him during his thirteen days of employment the Court might have found some degree of unfairness in the dismissal.
These matters are not relevant to the actual determination because the Court has found that the applicant resigned and was a completely unimpressive and unreliable witness.
Be that as it may, this employer and all employers need to be careful to afford substantive and procedural fairness to employees who they terminate on the grounds of capacity and/or conduct.
This was not a termination but a resignation. Had it been the former there may have been a remedy.
In this respect the comments of the Chief Justice in Nicolson and Heaven and Earth Gallery Pty Ltd 20 September 1994 (NI127 of 1994) are apposite.
ORDER
Application dismissed
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date :
Appearances:
Counsel for the Applicant : Steven Anger
Solicitor for the Applicant : Maurice Blackburn and Co.
Counsel for the Respondent : J.T. Healy
Solicitor for the Respondent : Bruce C. Chalmers
Date of Hearing : 10,11 and 14 November 1994
Judgment : 18 November 1994
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