Apostoltos v Ilona Sturla / T/as Febtil P/L
[1996] IRCA 223
•26 February 1996
DECISION NO: 223/96
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - RESIGNATION.
VICKI APOSTOLTOS -V- ILONA STURLA / T/as FEBTIL P/L
No. NI95/3406
BEFORE: WALKER JR
PLACE: SYDNEY
DATE: 26 FEBRUARY 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY
No. NI 3406 of 1995
BETWEEN:
VICKI APOSTOLTOS
Applicant
AND:
ILONA STURLA/ T/as FEBTIL P/L
Respondent
CORAM: WALKER JR
PLACE: SYDNEY
DATE: 26 FEBRUARY 1996
REASONS FOR JUDGMENT
The applicant Vicki Apostoltos, commenced employment as a senior beauty therapist at Ilona’s New Image Beauty Salon in August of 1993 and as a reward for her time and effort put into the growth and success of the salon she was appointed as manager about a month later. The applicant’s evidence was that in November 1994 she was paid $825.00 gross per week and in addition, after meeting a budget, she would receive a commission every three months.
Shortly after commencing her employment the applicant made it clear to her employer Mrs Ilona Sturla, the owner of the salon that she had ambitions to own her own business and that this was her future goal. Mrs Sturla in her evidence said that the applicant made an offer to purchase her salon as early as January 1994 and that she had said to the applicant that she would be willing to sell it for $120,000.00. She said she had enquired of the applicant how the applicant would finance the purchase and that Vicki had replied that her father was interested in financing the deal. Mrs Sturla then suggested that he come out and look at the property, however the applicant’s father changed his mind and the sale did not proceed. The applicant again approached Mrs Sturla in May of 1995, regarding the sale of the business as her boyfriend was interested in investing in the salon and Mrs Sturla said she now wanted $220,000.00. The applicant refused the offer as she regarded it as too high. A further approach was made by the applicant to purchase the business in June or July 1995, and it was agreed that the applicant should have a valuation prepared.
The applicant’s evidence was that Mrs Sturla had at one stage offered to sell for $70,000.00 prior to Mr Woods the applicant’s boyfriend becoming involved with the purchase and when subsequently an offer of $60,000.00 was made on the
18 August 1995, the day after the applicant received the valuation Mrs Sturla had laughed and said that she would never sell for less than $150,000.00. These negotiations matter little as to the issues in this case however they do go to the basis of the breakdown of the relationship between the parties which then resulted in the commencement of these proceedings.
As a direct result of the attempts by the applicant to purchase the salon the applicant made various enquiries as to the values of other properties and to the value of other leaseholds. She in fact enquired as to a property across the road from the respondent’s salon, not for the purpose of buying it, she said, but to see what the leasehold was worth. She also made enquiries of Ms Rita Smith, the National Sales Manager for Juvena cosmetics to see if Ms Smith would supply her with cosmetic products if she set up a business in Castle Hill. Ms Smith, at first replied that she would not supply the product because it would affect Mrs Sturla’s business and was not the moral thing to do, however because of legal intervention she changed her mind.
Ms Rita Smith is a close friend of the respondent Ilona Sturla and is also well known to the applicant, having travelled to Paris with the her as the result of winning a prize for the sale of cosmetics. On the 18 August 1995, Mrs Sturla telephoned Rita Smith because she said she had a suspicion that the applicant might be attempting to get products from her. Mrs Sturla said Rita Smith confirmed her suspicion that the applicant had asked to be supplied with cosmetic products and that the applicant was opening up a salon across the road in Castle Hill. However in Ms Smith’s cross-examination, she says Mrs Sturla asked her if the applicant was opening up a salon in the Castle Hill area and she had replied,
“Yes she has Ilona but I think that it is not necessarily the Castle Hill area that she is going to be opening up. I think, we have discussed this and I think it is another area.”
Ms Smith’s knowledge of the applicant’s intentions was no doubt based on the conversation she had had with the applicant some days before, a conversation she gave evidence of in her examination in chief. When asked by her counsel, “Did you receive another telephone call from Vicki”, she replied,
“Yes, I did which was a few days before the incident of her leaving Ilona’s New Image and she said that few things weren’t going very well at all in the situation and that she had found a vacant shop in the Dural area and that she was interested and that she was negotiating and she was going to go into that shop. So I asked her when she was going to leave Ilona’s salon, had she spoken to Ilona yet and she hadn’t. And I asked her when she was going to leave to be going to the business and she said very soon,”
It is clear from this evidence that Ms Smith was aware that the applicant was going to open up a salon in the Dural area and not the Castle Hill area before she received the telephone call from Mrs Sturla on the 18 August. Mrs Sturla’s evidence in cross examination was that Ms Smith had told her that the applicant was going to open up across the road. When it was put to her that Ms Smith had told her that the applicant was going to open up at Dural Mrs Sturla replied,
“she didn’t say - Rita said nothing to me about Dural on that Friday night that I can remember.”
The Events of 19 August 1995
It was the applicant’s evidence that on her arriving at work on the 19 August 1995 she went into the staff room to put her bag down and noticed that all of her personal belongings had been neatly placed into a pile on the corner of the table. Included in this pile was a photo album of the applicant’s trip to Paris, which was usually kept on the coffee table in reception, some crystal glasses, which were normally under the sink, and some shoes and items of clothing. The applicant said Mrs Sturla was acting very peculiar and was not speaking to her or Julie Butlin, the apprentice. When she approached Mrs Sturla the applicant said
Mrs Sturla said,
“...I don’t want to talk about it now because if I do I’ll start crying and I won’t be able to stop or talk about it later.”
The applicant continued working and during the course of the day said she made the comment to Julie Butlin that she didn’t think she would have a job to come back to. Ms Butlin corroborated this evidence as well as the evidence in regard to the applicant’s personal belongings being stacked in a pile on a table in the back room.
At the end of the day the applicant said that Mrs Sturla called her into the back room and asked her to sit down. She then said to the applicant,
“How could you do this to me, I trusted you.”
The applicant said she replied,
“All I did was make an inquiry.”
The applicants evidence then was that after a discussion Mrs Sturla said,
“I don’t need you here anymore, I’m going to come back and manage my own business.”
The applicant then said,
“....what do you don’t want me here anymore?”
And that Mrs Sturla then said,
“Yes, I think it’s for the best.”
The applicant said she then gave Mrs Sturla her keys, collected her belongings and was walking out when Mrs Sturla called out to her and said,
“....you can stay, but I would need to have documents that you wont open up in Castle Hill.”
The applicant said she did not respond and then drove home and called her fiancee and after a discussion with him decided that she would accept
Mrs Sturla’s offer of signing a restraint of trade document. She called the salon but Mrs Sturla had left and she rang her at home and Mr Sturla answered the call and said that Mrs Sturla was not home. She called again and Mr Sturla again answered saying Mrs Sturla was not home On the third occasion Mr Sturla asked the applicant why she wanted to speak to his wife and the applicant replied it was about something that had happened at work. The applicant said Mr Sturla then said,
“I know what happened and we are not interested.”
The applicant said she then said to Mr Sturla,
“...but Ilona said that if I signed the papers saying that I won’t open up in Castle Hill, that I could stay.”
Mr Sturla, she said replied,
“look I don’t know about that, but you know, we are not interested and even if we did take you back we can’t afford you we would have to reduce your pay.”
The applicant said Mrs Sturla rang her the next day and asked her to come and see her and she attended the salon shortly after. She said Mrs Sturla said she wanted the applicant to come back but on reduced pay. After further conversation the applicant left the salon and rang back to say she was not interested in the offer.
Mrs Sturla’s version of the events of the 19th is that the applicant denied the allegation that Mrs Sturla put to her, that she understood the applicant was going to open up across the road. She said the applicant had replied that Rita was a liar and had then added,
“Well what is wrong with that? They’re my clients if I put an advertisement in the paper my clients will come to me and quite frankly I don’t care if you’re left with any clients at all.”
Mrs Sturla then said the applicant had then asked her three times,
“Look do you want me to go?”
and she had answered no on each occasion She said the applicant then handed her the keys and walked out saying that she wanted her termination money to be prepared on the following Monday.
As to which version of the events to believe must be determined by the credit of the witnesses evidence however I must admit that I was not impressed by either of them as to the manner in which they answered questions. The applicants version would appear to have some corroboration as previously referred to in Ms Butlin evidence and further that on the afternoon of the 19 August, Ms Butlin gave evidence that the applicant had telephoned her and said that she had been sacked and would not be returning to work. Also in her evidence which was not challenged, Ms Butlin said that when she attended work on the Monday morning she could not get into the salon as the locks had been changed. This evidence would favour the proposition that the applicant had been terminated rather than her resigning.
Mrs Sturla’s evidence was also most inconsistent, especially with regard to the crystal glasses of the applicant being placed on the table with the rest of the applicants belongings. In evidence in chief she was asked the question, “Did you place the box of crystal glasses on that desk?”, and she replied, “No they’d been there for months.” Under cross examination when asked if she seen the glasses she replied that she did not see any glasses on the table. As to what items the applicant had taken from the pile when she left Mrs Sturla said in examination -in -chief that when she had the meeting,
“Well, the first thing I noticed was that the belongings that I’d pushed over to the corner they weren’t there anymore, they were all in her bag.”
In cross examination she was asked,
“When she left on the Saturday, did not you say she took the pile with her?.”
Mrs Sturla replied,
“The only thing I noticed was the photo album and - the photo album as no longer there on the pile.”
Mrs Sturla also denied that she had asked the applicant to sign a restrain of trade document, however when Mr Sturla gave his evidence he said that when the applicant spoke to him on the telephone that night she had said,
“well, Ilona’s told me that I’ve got to leave and I’ve got to sign documents.”
This was said to Mr Sturla at a time contemporaneous with the events of the
19 August and added to this is the facts that the applicant had made future bookings for clients on the day, had only just paid $1000.00 for a valuation of the respondents salon and had no position to go to if she had intended to resign.
On the Monday morning following the dismissal when the applicant had been asked to meet Mrs Sturla at the salon, it was the applicant’s evidence that she had said all she wanted was her job back. Mrs Sturla agreed in cross examination that the applicant had said this but later on in re-examination when asked the same question she said she could not remember. When then asked, if she had said that what would she have said, she replied, yes.
For these reasons I find that on the balance of probabilities the applicant’s employment was terminated by Mrs Sturla on the 19 August 1995.
Compensation
In assessing compensation I am required to take into account all the circumstances of the case. The most obvious of these in this matter is that the applicant had, since she first commenced her employment with the respondent let it be known to the respondent that she was going to go out into a business of her own. In fact she wanted to purchase the respondent’s salon and but for the breakdown in their negotiations that is what would have happened. It is also clear that the applicant was at a stage that had the negotiations been unsuccessful then she would have bought elsewhere in any case. She had made many enquiries with regard to this posibility and had the backing of her fiancee, or her father to achieve this aim financially. In my opinion the applicant was on the verge of this at the time of her termination.
I find that the appropriate amount of compensation is the sum of $6000.00 and I do so order.
I certify that this and the preceeding nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Walker.
Date: 28 May 1996
Legal Assistant: ______________________
Appearances:
Counsel for the Applicant: Michael S. Zammit
Solicitor for the Applicant: Garry J. Neave
Counsel for the Respondent: Arthur Moses
Solicitor for the Respondent: Raymond A. Newton
Date of Hearing: 26 February 1996
Date of Judgment: 28 May 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES REGISTRY
No. NI 3406 of 1995
BETWEEN:
VICKI APOSTOLTOS
Applicant
AND:
ILONA STURLA / T/as FEBTIL P/L
Respondent
BEFORE: WALKER JR
PLACE: SYDNEY
DATE: 26 FEBRUARY 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The respondent pay the sum of $6000 to the applicant.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
SYDNEY REGISTRY
No. NI3406 of 1995
BETWEEN:
VICKI APOSTOLATOS
Applicant
AND:
ILONA STURLA
First Respondent
FEBTIL P/L
Second Respondent
BEFORE: WALKER JR
PLACE: SYDNEY
DATE: 21 JUNE 1996
CORRIGENDUM
The following amendments are made to Judicial Registrar Walkers’ decision of 28 May 1996 and the minutes of order.
On pages 1 & 2 and the minutes of order, the date of 26.2.96 be deleted and 28.5.96 be inserted.
On pages 1 & 2 and the minutes of order, the respondents name be deleted and ILONA STURLA First respondent and FEBTIL P/L Second respondent inserted.
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