Anning v Queensland Community Credit Union Ltd
[1997] IRCA 250
•04 June 1997
DECISION NO:250/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - WHETHER TERMINATION AT INITIATIVE OF EMPLOYER OR RESIGNATION
WORKPLACE RELATIONS ACT 1996, s170EA, ss170DE(1)
DENISE MICHELLE ANNING -V- QUEENSLAND COMMUNITY CREDIT UNION LIMITED
QI 97/1016
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 4 JUNE 1997
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 97/1016
QUEENSLAND DISTRICT REGISTRY
BETWEEN: DENISE MICHELLE ANNING
Applicant
AND: QUEENSLAND COMMUNITY CREDIT UNION LIMITED
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 4 JUNE 1997
THE COURT ORDERS THAT:
The application be allowed.
The respondent pay to the applicant the sum of $769.20 within 14 days of this order.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 97/1016
QUEENSLAND DISTRICT REGISTRY
BETWEEN: DENISE MICHELLE ANNING
Applicant
AND: QUEENSLAND COMMUNITY CREDIT UNION LIMITED
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 4 JUNE 1997
REASONS FOR JUDGMENT
Background
At all material times the applicant, now aged 32, was employed by the respondent at its premises at Toowong, Brisbane. Her duties were principally clerical in nature with a significant word processing component.
The applicant took up employment with the respondent on 8 July 1996. Her employment with the respondent came to an end on 11 November 1996.
The issue in this case is whether the applicant's employment was terminated at the initiative of the respondent or she resigned.
Findings
In what follows below appear findings of facts I take to be material to the resolution of the matter. I do not purport to deal with all of the matters canvassed at trial.
The applicant reported to a Sharyn Gough, the respondent's assistant manager, on a daily basis. In the initial stages of the applicant's employment, Ms Gough was reasonably happy with her performance. However, by mid-August 1996, it was apparent to Ms Gough that the applicant was not reaching the standard required of her and was unable to perform her work at a satisfactory pace.
There was quite a deal of repetition involved in her tasks, including, in many cases, the insertion of data into pro-forma documents.
Ms Gough counselled the applicant on a number of issues relating to performance on 23 August 1996. She told the applicant she would keep her performance under review. Ms Gough did not witness a substantial improvement over the next two months. On 22 October 1996 she again discussed with the applicant the standard of her work. She indicated a number of specific areas with which she was unhappy. She told the applicant that she would give her a two week period in which to improve and would review her performance at the end of that period.
The applicant made a number of errors in her work on 7 November 1996. These resulted in some inconvenience to some of the respondent's clients. Ms Gough counselled the applicant in respect of those matters. The next day she gave the applicant a letter dated 7 November 1996 in which she detailed specific areas of the applicant's work which had caused concern. These included:
Failure to produce word processing documents in their correct format, a high rate of spelling and word replacement errors, documents not being proof read, incorrect writing of banking deposits and receipts, inability to communicate correct telephone message information and inability to work unsupervised.
The letter notified the applicant that her performance would be reviewed again in two weeks time, on 21 November 1996, and if she had not achieved the required standard, her employment would be terminated as of that date.
The applicant was unable to accept the criticisms (validly made) of her work performance. I am satisfied that she convinced herself that what the letter of 7 November 1996 meant to convey was that her employment would, without more, be terminated on 21 November 1996. In this she was mistaken.
On 11 November 1996 the applicant spoke to a Mr Ken Gough, a director of the respondent and the father of Ms Gough. She said words to the effect:
As I am leaving in the next two weeks, I want time off to find another job.
She also said words to the effect of:
Do I need to come into work during the next two weeks, or can I come in from time to time while I look for work and still get paid for the next two weeks.
Mr Gough said words to the effect of:
That would not be suitable as we need to know what you are doing and whether we can expect you at work.
I accept Mr Gough when he asserts that this conversation with the applicant on 11 November 1996 left no doubt in his mind that she was resigning in two weeks. She did not raise with him the letter of 7 November 1996. Soon after he told his daughter what the applicant had said.
During the day the applicant showed a reluctance to work. Having arrived about half an hour late for work that morning, she was also late back from lunch. When Ms Gough raised her lateness with her she said words to the effect of:
Why should I bother coming back from lunch early because I am going to get the sack anyway .......
Ms Gough considered that having regard to the applicant’s conversations with her father and herself that day, her lateness and her attitude to work, the applicant had resigned with effect that day. At the close of business that day, she made up the applicant’s pay for the day, including accrued holiday pay. When she handed it over to the applicant, Ms Gough said words to the effect of:
After what you have said to me today and to Ken, you have terminated your employment and so this is your last day.
The applicant then left the premises.
Ms Gough interpreted events that day as meaning the applicant was resigning with effect that day. I do not think the applicant meant to convey this; rather she had some notion that she could give notice of a resignation to take effect two weeks hence but also take (paid) time off in that period to look for another job. Ms Gough ought to have clarified the position with the applicant to ensure that she was in truth resigning that day (if that were her intention) before severing the employment relationship.
I am satisfied that the applicant’s employment was terminated at the initiative of the respondent. However, her employment would not have long persisted. While the
respondent did not have a valid reason to terminate the applicant’s employment when it did, the likelihood is that the applicant would have worked only until the review date, on 21 November, at which date her stated intention to resign would have been carried out.
Remedy
The applicant did not seek reinstatement. I would have found it impracticable in any event. I think it appropriate to award her compensation but only between the date of termination and 21 November. By reference to the one day’s pay the applicant received on termination, I fix appropriate compensation in the sum of $769.20.
Generally
Before concluding, I consider it appropriate to make some other remarks. The applicant, who represented herself at trial, seemed to have an unreal expectation of her job with the respondent. On quite a number of occasions, she referred to the respondent as having treated her like a senior executive supreme professional. She felt herself grievously wronged because an attempt had been made to put her on a traineeship which, because of uncompleted paperwork, was never carried through. I accept Ms Gough in her evidence that the notion behind the traineeship was to improve the applicant's skills in areas other than the ones in which she already had experience. I do not think that the applicant could reasonably conclude that this notion was belittling.
The applicant also made much of the fact of a clash between a fellow employee, one Julia Davis and herself. The applicant contended that the effect of this clash was to adversely affect her standard of work. I think there was less to this than the applicant made out. In any event, Ms Gough recognised that there was a problem between Davis and the applicant and took a measure to redress it, by separating them in the office.
I do not accept that the applicant was unable routinely to take appropriate lunch and tea breaks.
Inevitably, with an unrepresented party, there was some inadmissible evidence which I have ignored in the resolution of the matter.
Order
I order that:
The application be allowed.
The respondent pay to the applicant the sum of $769.20 within 14 days of this order.
I certify that this and the preceding FOUR (4) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 4 June 1997
Appearing for the Applicant: In person
Solicitor appearing for the Respondent: Mr Lepahe
Solicitors for the Respondent: Clayton Utz
Dates of hearing: 19, 20 & 21 May 1997
Date of judgment: 4 June 1997
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