Beaver v RAC Insurance Pty Ltd
[1997] IRCA 58
•25 February 1997
DECISION NO:58/97
CATCHWORDS
INDUSTRIAL LAW - termination of employment - claim of unlawful termination - unauthorised leave - whether valid reason for termination
Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988 (C'th)) Ss 170DB, 170DE(1), 170EA
Gibson v Bosmac Pty Ltd (1995) 60 IR 1
Perrin v Des Taylor Pty Ltd (1995) 58 IR 254
Selvachandran v Peteron Plastics (1995) 62 IR 371
MARGARET WINIFRED BEAVER v RAC INSURANCE PTY LTD
WI 1472 of 1996
Before: BOON JR
Place: PERTH
Date: 25 FEBRUARY 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1472 OF 1996
B E T W E E N:
MARGARET WINIFRED BEAVER
Applicant
A N D:
RAC INSURANCE PTY LTD
Respondent
MINUTE OF ORDERS
25 FEBRUARY 1997 PERTH BOON JR
THE COURT DECLARES AND ORDERS THAT :
The respondent pay to the applicant an amount equal to two weeks' pay in lieu of notice pursuant to the provisions of section 170DB;
The application is otherwise dismissed;
The question of costs is reserved.
The matter will be set down for hearing at 10:00 am on 5 March 1997 for submissions in relation to costs.
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 1472 of 1996
B E T W E E N:
MARGARET WINIFRED BEAVER
Applicant
A N D:
RAC INSURANCE PTY LTD
Respondent
REASONS FOR DECISION
25 FEBRUARY 1997 BOON JR
INTRODUCTION
This is an application under section 170EA of the Workplace Relations Act 1996,. The applicant seeks payment of compensation arising out of the alleged unlawful termination of her employment by the respondent. It is alleged by the applicant, Ms Beaver, that her former employer RAC Insurance Pty Ltd ("RAC Insurance") breached the provisions of the Act in a number of ways. In the first place, Ms Beaver alleges that she was not given an opportunity to respond to allegations against her conduct or performance as required by the provisions of section 170DC of the Act. RAC Insurance denies this allegation and states that Ms Beaver was given ample opportunity to respond to the allegations against her conduct before her employment was terminated.
In the second place, Ms Beaver states that there was no valid reason for the termination of her employment as required by the provisions of section 170DE(1) of the Act. RAC Insurance states that there was a valid reason connected with Ms Beaver's conduct.
Further, Ms Beaver alleges that she was not given adequate notice as required by the provisions of section 170DB. RAC Insurance admits that at the time Ms Beaver's employment was terminated she was not given enough pay in lieu of notice but says that since the termination it has attempted to pay to Ms Beaver any outstanding notice payments but that these attempts have been thwarted by Ms Beaver.
BACKGROUND
Ms Beaver is a 50 year old woman who started her employment with RAC Insurance in January 1990. At the time of the termination of her employment she worked as a maintenance officer in the underwriting section of RAC Insurance. The position involved dealing with the public, writing reports and handling money.
As part of the conditions of Ms Beaver's employment she was entitled to four weeks annual leave. It is RAC Insurance's policy that if an employee wishes to take up to four weeks annual leave his or her immediate supervisor can approve that request. If however the employee wishes to take more than four weeks accumulated annual leave the request has to be approved by a more senior manager.
On 31 October 1995 Ms Beaver submitted an application for annual leave for the period 9 September 1996 to 22 October 1996. The leave was approved by her immediate supervisor, Angela Guardione, and the departmental manager, Stewart Spouse. Ms Beaver applied for the leave early as she wished to give her employer plenty of notice and stand a good chance of having the leave approved as she had planned a six week European holiday for 1996. When it became time to book the holiday, however, she found that she had to change the leave dates and on 7 December 1995 Ms Beaver submitted an amended leave form requesting leave between 12 August 1996 and 23 September 1996. Once again that leave was approved by Ms Guardione and Mr Spouse.
The holiday Ms Beaver had booked was for a tour of Europe and England. She had arranged to go with a friend. In about May 1996 Ms Beaver's friend suggested that they extend their holiday and go to Ireland for an extra four days.
According to Ms Beaver she originally made the application for the extra leave to Mr Spouse. She says that Mr Spouse advised her that it may be too disruptive to the company and he did not think he would be able to approve the extra week's leave. It is not disputed that Ms Beaver had an extra 12 days annual leave accumulated over and above the six weeks she had applied for and was granted. Mr Spouse told Ms Beaver that there were too many other people on holiday at the time that she wanted the extra leave, although Ms Beaver disputes this.
After this conversation with Mr Spouse in early May 1996 Ms Beaver approached Mr Sam Mola, the operations manager with RAC Insurance who has a higher position in management than Mr Spouse. It is part of the internal grievance procedure at RAC Insurance to approach a more senior manager if an employee disagrees with a decision made by a manager. Mr Mola told Ms Beaver that he would speak to Mr Spouse. According to Ms Beaver Mr Mola advised her some time later that he had discussed the matter with Mr Spouse who had been of the opinion that an extra week's leave would disrupt the department too much. Mr Mola told Ms Beaver to apply again to Mr Spouse at the beginning of June as new relief staff were starting. According to Ms Beaver Mr Mola said that it shouldn't be a problem. Mr Mola was not called to give evidence.
Mr Spouse gave evidence in relation to this initial period in early May 1996 that when Ms Beaver made her request he discussed the matter with Ms Guardione. Ms Guardione gave evidence that she consulted her diary which listed the staff who would be taking annual leave at the time and together Ms Guardione and Mr Spouse decided that it was inappropriate to grant the extra leave. Mr Spouse said that he gave Ms Beaver three reasons for the refusal. Firstly, there were two others in the same department who were taking six weeks leave during that calendar year. That meant that those staff including Ms Beaver were going to be away for a total of 18 weeks during 1996 instead of the expected 12 weeks. Secondly, Ms Beaver's application covered a period which was right in the middle of a major refurbishment of the section. It involved a lot of disruption and moving of staff and Mr Spouse expected a higher than usual number of people to take sick leave as a result. Thirdly, Mr Spouse said that there were three other staff in the section who would be away from the department at that time. Mr Spouse said that at a later point in time Mr Mola came to see him and they once again considered the matter. Mr Spouse once again discussed the matter with Ms Guardione and agreed that it was not appropriate from an operational point of view to grant an extra week's leave. Mr Spouse said that he advised Ms Beaver and she stated that she was disappointed as the trip to Ireland was the chance of a lifetime.
Ms Beaver states that she once again applied to Mr Spouse early in June. She says that Mr Spouse told her he would get back to her. Ms Beaver said that she approached Mr Spouse verbally a number of times. Mr Spouse confirmed this in his evidence. Ms Beaver says that she was approached by her travel agent as the trip had to be paid for by 13 June 1996. Ms Beaver did not pay for the trip by that date. Towards the end of June the travel agent told her that if she didn't pay for the trip then she couldn't take the holiday. Ms Beaver paid for the trip on 5 July 1996. The trip she paid for included the extra tour of Ireland for which she did not have leave approved. Although Ms Beaver said she did not book the trip officially until 5 July 1996 a letter to Ms Beaver from her travel agent dated 17 June 1996 indicates that her booking was changed on that day. Ms Beaver said that she had not given her travel agent instructions to change her booking on that day and said that she had merely been enquiring about the extra cost involved. She admits however that she did not do anything to change the amended booking and in fact paid for the extra trip on 5 July 1996.
Mr Spouse gave evidence that on 14 June 1996 another employee came to see him and said that there was a rumour circulating amongst the staff that Ms Beaver was going to take seven weeks holiday instead of the six weeks which had been approved. Ms Guardione came to see him as well about the same rumour. On 21 June 1996 Mr Spouse spoke to Ms Beaver. He said to Ms Beaver that he had called her in as he had heard a rumour that she was going to take seven weeks instead of six weeks holiday. He said that he was concerned about the rumour and wanted to ensure that she understood that she only had six weeks leave approved. According to Mr Spouse, Ms Beaver acknowledged that she understood that she only had six weeks leave approved. Ms Beaver's evidence was that she was not sure if this conversation took place on 21 June 1996. As Mr Spouse made a file note about it I am satisfied that that is the date on which the conversation occurred. According to Ms Beaver she said two sentences to Mr Spouse which were "you advised me I could not have the extra leave", and that she had to let the travel agent know her intentions by 13 June 1996.
Ms Beaver left for her holiday on 13 August 1996. At the time she left she understood that she only had six weeks leave approved. She arrived in London on 14 August 1996. She went on a tour to Europe and returned to London on about 19 September 1996. According to Ms Beaver, while they were in Europe a large number of her tour party fell ill with symptoms of vomiting and diarrhoea. She said that when she was back in London she herself had those symptoms. Ms Beaver went to see a Dr Ladbrooke who prescribed some medication to relieve the symptoms. The original of that prescription was tendered as evidence in the trial. Ms Beaver states that she filled the prescription and took the medication. Ms Saraceni, counsel for the respondent, pointed to the fact that Ms Beaver was still in receipt of the original prescription in circumstances where one would expect that the original would have been retained by the pharmacy if it had been filled. This Court was invited to draw the conclusion that Ms Beaver was not really ill but had simply pretended to be ill in order to provide her with any excuse for her employer. It is not necessary for me to draw that conclusion because of other matters arising in this case which will be described further on in these reasons for judgment.
Ms Beaver said that the friend with whom she had travelled was very ill in Saint Mary's Hospital with similar symptoms and had in fact contracted Guillain-Barrè syndrome. That syndrome causes an inflammation of the nerves and spinal chord and usually follows 10 to 21 days after infection of the upper respiratory tract or a gastro- intestinal infection. Ms Beaver said that she was concerned that she may have contracted the same syndrome.
Despite this, Ms Beaver went on her trip to Ireland. She said that she did not go to a doctor in Ireland even though she was very ill because there was not enough time as they were too busy with the tour. Ms Beaver said that she had been concerned about her job when she decided to go to England but she was also concerned that her friend would be very upset if she didn't go. In the end she simply decided to go to Ireland and arrive back at work late. Before she left London for Ireland she received a telephone call from a male friend who said that a female friend who also worked at the RAC had phoned him to warn Ms Beaver that there had been meetings at work in her absence and that it appeared that her job was on the line.
Ms Beaver telephoned Ms Guardione from Ireland on 27 September 1996, which was the Friday of the week when she should have been back at work. Ms Beaver said that when she spoke to Ms Guardione she asked her whether she had received a fax which she had sent from her hotel in London and Ms Guardione said that she hadn't received it. Ms Beaver's version of the conversation is that she told Ms Guardione that her friend was ill in hospital with Guillain-Barrè syndrome and that her friend had to have blood tests. She was upset during this conversation and started to cry. Ms Beaver said that she did not tell Ms Guardione where she was calling from. Ms Guardione's version of the conversation is that Ms Beaver telephoned her and said that she was calling from London. She said that she was too ill to fly back and that she was having blood tests that afternoon in Saint Mary's Hospital to determine whether she had Guillain-Barrè syndrome. She said that neither her doctor nor the airline would allow her to fly back until she had received a medical clearance. Ms Guardione denied that Ms Beaver could have been talking about her friend in that conversation. She said that Ms Beaver referred to a fax which she had sent from London on 24 September 1996. In fact Ms Beaver left London on 22 September 1996 and was in Ireland on 24 September 1996. Ms Beaver's explanation for this is that she made a mistake about the date and that she must have sent the fax on 22 September 1996, not 24 September 1996. Ms Guardione did not receive a fax from Ms Beaver.
Ms Beaver flew back to Perth on 28 September 1996 and arrived in Perth on Sunday 29 September 1996. That evening she received a telephone call from her friend who worked in the RAC who warned her that her job was in jeopardy and that she should return to work as soon as possible. Ms Beaver went to see a general practitioner the following day and told him that she was still ill with vomiting and diarrhoea. He issued a medical certificate certifying her unfit from 1 October 1996 to 3 October 1996. Despite this, because of her concern about her job, Ms Beaver returned to work on 1 October 1996. Ms Guardione spoke to Ms Beaver at 8:30 in the morning on that day. Ms Beaver told her that she was still ill and gave Ms Guardione a copy of an article about Guillain-Barrè syndrome. She also gave Ms Guardione a copy of the doctor's medical certificate. Later on Ms Guardione advised Ms Beaver that Mr Spouse wanted to see her at 10:00 that morning. Ms Beaver was offered the chance to have a friend present at this interview but she declined. Ms Beaver admitted that she said to Ms Guardione that she thought her job was on the line. The meeting was held at 10:00 that day. Ms Beaver, Mr Spouse, Ms Guardione and Ms Helen Flavo, another manager in Ms Beaver's department, attended the meeting. According to Ms Beaver, Mr Spouse asked her to explain her late return to work and she said that she had been ill and referred to the doctor's certificate. Mr Spouse asked her if she had been to Ireland and she agreed that she had. Mr Spouse pointed out that the certificate didn't explain her absence for the preceding week. Ms Beaver said that she told the meeting that she had sent a fax from London and that at the time she had been worried because her friend had Guillain-Barrè syndrome. She denied telling the meeting that she had had to have blood tests at Saint Mary's Hospital and that British Airways and her doctor had refused to allow her to travel. She said that when she was talking about blood tests and Saint Mary's Hospital she was referring to her friend. Both Mr Spouse and Ms Guardione however said that Ms Beaver advised the meeting she had sent a fax to RAC on 24 September 1996 from the business centre at her London hotel. Mr Spouse said that Ms Beaver had told the meeting that she had been advised by the doctor not to fly and that British Airways wouldn't allow her to fly. She had had blood tests at Saint Mary's for suspected Guillain-Barrè syndrome. Ms Beaver was asked at the meeting whether she would be prepared to sign authorisations to allow the RAC to contact British Airways, her travel agent and the London doctor. Ms Beaver eventually signed those authorisations. In the meantime Ms Beaver had been to see her union and received some advice.
Mr Spouse obtained details of Ms Beaver's travel arrangements from her travel agents. Because of this he learnt that she had booked to return to Perth on 29 September 1996 before she left on her holiday. RAC's medical practitioner received information from Dr Ladbrooke that Guillain-Barrè syndrome had never been discussed by Ms Beaver and that no blood tests had been ordered. There was also no note by the doctor that she was unfit for travel. Ms Beaver's hotel in London provided RAC with information that no fax was sent by Ms Beaver from its business centre at or around the time she alleges she did send the fax. That evidence was hearsay and was allowed in only for the purpose of explaining the actions taken by the respondent. I have not had regard to that evidence in deciding the outcome of this case other than for the purpose for which it was admitted.
Mr Spouse took the view that Ms Beaver had deliberately and consistently lied to the RAC at the interview on 21 June 1996 and subsequently to Ms Guardione on 27 September 1996 and on 1 October 1996. Mr Spouse took the view that Ms Beaver was in breach of RAC rules by failing to report in sick on 24 September 1996, and in failing to return after her leave had expired. However, Mr Spouse found that the more serious behaviour was what he called the deliberate and gross insubordination in booking a seven week holiday when told only six weeks would be granted, and in subsequently inventing a story to explain her absence for the additional week.
Ms Beaver had her rostered day off on 2 October 1996. When she returned to work on 3 October 1996 she was advised that there would be a meeting that afternoon at 2:00. When Ms Guardione told her of that meeting, according to Ms Guardione, Ms Beaver said to her, "it's been nice knowing you Angela". The meeting was held with Ms Beaver in the presence of Ms Stacey of the Finance Sector Union, Mr Chilvers, Group Human Resources Manager of the RAC, Mr Spouse and Ms Guardione. Mr Chilvers chaired the meeting. According to Mr Chilvers he said when he opened that the purpose of the meeting was to allow Ms Beaver to put her case to them, with regard to the evidence they had gathered. Mr Chilvers said that he advised Ms Beaver that they had received notification from the travel agent that she had booked a seven week holiday and had gone to Ireland. He said he paused to allow her to comment but she made no comment. He advised that the RAC doctor had contacted Dr Ladbrooke in London whose notes indicated that the reason for Ms Beaver's attendance was for vomiting and diarrhoea and that there had been no indication in the notes of blood tests or that she could not fly. Mr Chilvers' evidence was that Ms Beaver just shrugged her shoulders. He said that the Tara Hotel had said that there was no fax sent to Australia by Ms Beaver and Ms Beaver didn't make any comment in response to that. Mr Chilvers then said it appeared that Ms Beaver had gone to Ireland despite the fact that she said she couldn't fly. In response, according to Mr Chilvers, Ms Beaver said that she did go to Ireland and didn't think the extra four days would matter. Mr Chilvers said that he told Ms Beaver that that wasn't the point. She had had an opportunity on 21 June 1996 to tell Mr Spouse that she had booked her seven week holiday and had deliberately not told him that. Again Ms Beaver shrugged her shoulders. Mr Chilvers said that he then asked Ms Beaver why she couldn't return to Australia in time for work and she indicated that she had been held over in London and she chose to go to Ireland.
Mr Chilvers then said that he thought Ms Beaver had told them a lot of untruths and that he was disappointed with her behaviour, especially as she was a union representative in her department. He asked her why she didn't contact the RAC on the first day of her absence and she didn't respond. There was no response by the union throughout this meeting. Mr Chilvers said that he then told Ms Beaver that he had no alternative but to dismiss her. He said that she had misled the RAC and had taken unauthorised leave. She had had every opportunity to tell her manager before she left that she had booked a seven week holiday. When she had returned she continued to tell the department lies. Mr Chilvers then told Ms Beaver that she was dismissed. Mr Chilvers said that Ms Beaver gave him no good reason for her behaviour in response to his questions. Mr Chilvers gathered that Ms Beaver accepted what he was saying and he felt it appropriate to dismiss her.
In Ms Beaver's evidence in relation to this final interview Ms Beaver admitted that all the matters raised by Mr Chilvers had been put to her. She said that she told Mr Chilvers that she had already told her employers that she had gone to Ireland. Ms Beaver said that she reiterated to Mr Chilvers that she had been ill and had provided the RAC with a medical certificate. She said until Mr Chilvers told her she was dismissed she had had no indication or warning that dismissal was a possibility. Ms Beaver told the Court that she did not say anything much at that final interview because she had already told Mr Spouse two days earlier about why she had been absent. Ms Beaver indicated that at all times she thought she would be faced with a reprimand and did not think that she would be dismissed. Ms Beaver maintained throughout that she had not told the RAC any lies and said that when she spoke to Mr Spouse on 1 October 1996 and explained about her friend being ill he said to her that she seemed more worried about her friend than she did about herself. Mr Spouse does not recall saying this.
THE CREDIBILITY OF THE WITNESSES
It is my view based on the demeanour of the witnesses, the weight of the evidence and some inconsistencies in Ms Beaver's evidence that to the extent that the evidence of Ms Beaver and the evidence of the respondent's witnesses conflict, the evidence of the respondent's witnesses should be preferred over that of Ms Beaver. I do not find Ms Beaver's explanations at all convincing. There were just too many points on which Ms Beaver's story did not ring true.
It is my view however that even if all of Ms Beaver's evidence was accepted, the outcome of this case would have been the same. She admitted that she booked a seven week holiday and that in the end she decided to take the risk and go to Ireland despite the fact that she knew she had only been granted six weeks leave. She also admits that each of the allegations were put to her in the interviews on 1 and 3 October 1996.
WAS MS BEAVER GIVEN AN OPPORTUNITY TO DEFEND HERSELF?
Ms Beaver made a submission that she was not given an opportunity to defend herself as she was not aware that it was possible that she would be dismissed. She cited the case of Perrin v Des Taylor Pty Ltd (1995) 58 IR 254 in which Moore J said at page 256 when referring to section 170DC:
"It is not, as counsel for the respondent suggested, a technical requirement. Its purpose is at least two fold. It is to give the employee the opportunity to demonstrate the allegations have no foundation in fact or they should not be viewed as reflecting on the employee's capacity... a second purpose of section 170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. There may be extenuating personal circumstances or they may involve undertakings about future conduct".
I reject Ms Beaver's allegation that she did not know that she might be dismissed. Her own evidence was that she received a telephone call in London from a friend who advised her that someone from her work had said there had been meetings to discuss her dismissal. Secondly, she received a further phone call from the friend at work once she arrived back in Perth to warn her that something was happening. I accept Ms Guardione's evidence that Ms Beaver said to her before the meeting on 3 October 1996, "it was nice knowing you Angela". Further, Ms Beaver sought advice from her union and her union delegate attended the final meeting of 3 October 1996. I am satisfied that RAC Insurance did everything it could to give Ms Beaver an opportunity to respond to the allegations against her. Ms Beaver chose not to say anything at the meeting on 3 October 1996.
Ms Beaver also pointed to the fact that she had not been given any warnings in the past that she may be dismissed if she behaved in this way. Section 170DC does not in itself require the employer to give warnings, either verbally or in writing. The kind of behaviour engaged in by Ms Beaver was not a simple misdemeanour but was a calculated course of conduct. She took the risk when she decided to take seven weeks instead of six weeks holiday.
WAS THERE A VALID REASON FOR THE TERMINATION?
In relation to section 170DE(1), Ms Beaver cited the case of Selvachandran v Peteron Plastics (1995) 62 IR 371 where Northrop J said at page 373:
"In its context in section 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudice could never be a valid reason for the purposes of section 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, common sense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of section 170DC".
Ms Beaver alleged that the reason for termination in this case was more personal than professional. To the extent that Ms Beaver seems to be suggesting that the RAC terminated her employment out of spite or malice my view is that there is no evidence of that at all in this case. Ms Beaver clearly feels that it is unfair that an employee of five years' standing should have her employment terminated for taking what amounted to four days unauthorised leave (Ms Beaver had a rostered day off on Monday, 23 September 1996). As Mr Spouse pointed out, however, this case is not as simple as that. Ms Beaver's employment was terminated for a combination of factors, which included not only taking unauthorised leave when the matter had been discussed on various occasions and Ms Beaver clearly knew that she did not have permission to take the leave, but also the fact that she concocted a story to try to protect herself. The RAC's position is that Ms Beaver in acting in this way has breached the relationship of trust between herself and her employer. Further, Mr Spouse acknowledged that he was partly motivated by the fact that there had been rumours going around the department that Ms Beaver would take unauthorised leave and he felt that it would cause operational difficulties for the department if Ms Beaver was seen to have behaved in this way and "got away with it". The eventual decision to dismiss Ms Beaver was made by Mr Chilvers. He terminated Ms Beaver's employment because of her "insubordination and the fabrication of deliberate lies and premeditated deception". The question for this Court is not whether there was no alternative to termination of Ms Beaver's employment. The question is whether there was a valid reason and I am satisfied from the evidence that there was a valid reason based on Ms Beaver's conduct for the termination of her employment.
THE NOTICE PERIOD
RAC Insurance Pty Ltd admit that originally on terminating Ms Beaver's employment it paid her only two weeks' wages in lieu of notice. As Ms Beaver is over 45 years of age and because she was employed for a period of over five years she was in fact entitled to a total of five weeks notice under the provisions of section 170DB. On 6 December 1996 Mr Chilvers forwarded to Ms Beaver a cheque representing a further one week's pay. That amount was calculated on the basis that Ms Beaver had already received two week's pay in lieu of notice, she had been paid for the week of unauthorised leave, and at that time Mr Chilvers thought that Ms Beaver was under 45 years of age because she had written the incorrect year of birth on her original employment application. Once it was discovered that Ms Beaver was in fact over 45, Mr Chilvers sent a further cheque for one week's pay. Both of those cheques were returned by Ms Beaver because she received legal advice from Legal Aid to the effect that she should return them. In these circumstances I am satisfied that it is appropriate to make an order that the respondent pay to Ms Beaver an amount equivalent to two week's pay in lieu of notice. In making this order I am not criticising the respondent because once it realised its obligations it attempted to pay to Ms Beaver the amount owing to her. I am also not criticising Ms Beaver in relation to this because she received legal advice to the effect that she should return the cheques.
Ms Saraceni for the respondent foreshadowed an application for costs in the event that the application was dismissed. Ms Saraceni said that she had put Ms Beaver on notice several times that the respondent intended to seek costs from her in the event that her application was unsuccessful.
The orders are:
The respondent pay to the applicant an amount equal to two weeks' pay in lieu of notice pursuant to the provisions of section 170DB.
The application is otherwise dismissed.
The question of costs is reserved.
The matter will be set down for hearing at 10:00 am. on 5 March 1997 for submissions in relation to costs.
I certify that this and the preceding sixteen (16) pages
are a true copy of the reasons for decision of
Judicial Registrar Boon.
Associate:
Date:
APPEARANCES
Applicant (in person): Ms Beaver
Counsel for the Respondent: Ms M Saraceni
Solicitors for the Respondent: Jackson MacDonald
Date of hearing: 11 & 12 February 1997
Date of judgment: 25 February 1997
0
5
0