Brooke and ALHMU v Coppin Cafe Pty Ltd

[1996] IRCA 501

DECISION NO:501/96

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - PRACTICE AND PROCEDURE - suppression of identity of applicant involved in sex industry - VALID REASON - CONDUCT AND PERFORMANCE - NOTICE OF TERMINATION - ABANDONMENT - COMPENSATION.

Industrial Relations Act 1988 (Cth) ss170DB, 170DE, 170EA, 170EE





Chambers v James Cook University of Queensland (1995) 61 IR 145;
Phillipa v Carmel (unreported, IRCA, Ritter JR, 10 September 1996);
M v Australian National University (unreported, IRCA, Moore J, 20 August 1996).









BROOKE and ALHMU - MISCELLANEOUS WORKERS DIVISION
v COPPIN CAFE PTY LTD
VI96/1553


Before:  MURPHY JR
Place:  MELBOURNE
Date of Hearing:       16 OCTOBER 1996
Date of Judgment:     16 OCTOBER 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI96/1553

BETWEEN:

BROOKE and
ALHMU - MISCELLANEOUS WORKERS DIVISION
Applicants

AND

COPPIN CAFE PTY LTD (T/A CLUB 2-3-4)
Respondent

BEFORE:     MURPHY JR
PLACE:        MELBOURNE
DATE:           16 OCTOBER 1996

MINUTES OF ORDERS

THE COURT ORDERS AND DECLARES THAT:

1. The respondent has breached ss170DB and 170DE(1) of the Act.

2. The respondent pay to the applicant the sum of $667 pursuant to s170EE(5) of the Act.

3. The respondent pay to the applicant the sum of $667 pursuant to s170EE(2) of the Act.

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
VICTORIA DISTRICT REGISTRY

VI96/1553

BETWEEN:

BROOKE and
ALHMU - MISCELLANEOUS WORKERS DIVISION
Applicants

AND

COPPIN CAFE PTY LTD (T/A CLUB 2-3-4)
Respondent

BEFORE:     MURPHY JR
PLACE:        MELBOURNE
DATE:           16 OCTOBER 1996

REASONS FOR DECISION
Delivered ex tempore - revised from the transcript

Prostitution, like most aspects of economic and social activity, is now the subject of a statutory regulatory regime in this State. The respondent holds a licence under that regime. The applicant, a sex worker employed by the respondent, seeks a remedy under s170EA of the Industrial Relations Act (“the Act”).

Suppression order.
At the commencement of these proceedings the applicant sought an order that a pseudonym be substituted for her real name, and I made that order.  My reasons were the same reasons that persuaded Spender J in Chambers v James Cook University of Queensland (1995) 61 IR 145. In a number of cases in this court involving sexual harassment, the principles have applied and the name of the complainant has been given a pseudonym:  Phillipa v Carmel (unreported, IRCA, Ritter JR, 10 September 1996), M v Australian National University (unreported, IRCA, Moore J, 20 August 1996). The latter decision involved a complaint involving sexual harassment against an academic. The names of the academic and the complainant were given a pseudonym.

I am satisfied that the same reasons should apply here.  The applicant was given a pseudonym by her employer for the purposes of her occupation, and it is appropriate in these proceedings that she be given a pseudonym as well.  While the Court will always be reluctant to infringe the principle of an open court, the principle here is only infringed in a very minor way by making the pseudonym order.  A further reason why such an order should be made is for the reason set out in Chambers (above), that the failure to make such an order may discourage other applicants from pursuing this kind of case.

The substantive application.
The applicant alleges that her employment was terminated by the respondent without notice, and without a valid reason.  She seeks compensation for the losses that flowed from those actions.  The respondent disputes that there has been any termination of employment at its initiative.  It maintains that the applicant abandoned or resigned her employment.  The factual dispute in this matter is of a narrow compass.

The applicant gave evidence that she commenced to work with the respondent on 14 February this year, and worked Thursday to Sunday nights.  She gave unchallenged evidence that soon after she commenced there was an incident with a client.  There was yelling and screaming between Mr Gray, the owner of the respondent, and the client.  Mr Gray said to her that "this isn't good enough, if it doesn't clear up there will be a dismissal".

There was a second incident with a client a couple of weeks later.  Mr Gray and a host, Mr Baxter, saw the applicant in Mr Gray's office.  The applicant's evidence in relation to the second incident was that Mr Gray and Mr Baxter came in and said, "what's going on; this is the second time, I can't have it any more".  There was yelling and screaming.  The applicant said that Mr Gray then said, “you need a break for two weeks”.  The applicant said "I need the money".  He said, "you want two weeks off".

In his evidence, Mr Gray disputed the second incident.  He said it was the applicant who broke down in tears, and she said she needed a week off to get herself together.  Mr Baxter’s evidence was she said she had boyfriend problems.  Mr Gray granted the week off.  A few days later the applicant called Mr Gray and said that he owed her money for the time off.  He said that was not the case.  The applicant then said that he would be hearing from her solicitor. 

The applicant's version of this telephone conversation was that she called to inquire whether it would be possible for her to be paid Workers Compensation for the two weeks suspension.  Mr Gray had exploded, and said that “if he had to (expletive) pay her that, she was (expletive) fired.”   

On the competing accounts I accept the applicant's versions of events.  She presented well in the witness box.  Her version of the first incident was not challenged.  Mr Gray was unconvincing when he said in evidence that he was not upset with the applicant in relation to the second incident.  There were minor discrepancies between Mr Gray's and Mr Baxter's versions.  The applicant's version is consistent with the earlier threat by Mr Gray that he was unhappy with the applicant's performance. 

It follows from this that I am satisfied that the applicant's employment was terminated by the respondent. Mr Gray first stood the applicant down for two weeks, which in itself repudiates the contract of employment. When she called him, he told her she was fired when she sought some payment for the stand down. It follows from this that I am satisfied that the respondent has breached s170DE(1) of the Act because it had no valid reason to terminate the applicant's employment. The respondent has also not paid the applicant her entitlements under s170DB(1) of the Act to be given notice, or payment in lieu thereof.

Compensation.
The applicant did not seek reinstatement, and two weeks later obtained other employment.  The applicant was suffering some health problems at the time that her employment was terminated.  She said when she obtained other employment about two weeks later, she was taking about one day in three off for the next month or so.  She had missed at least one shift with the respondent in the three weeks she worked for it. 

The applicant's earnings with the respondent were on average $250 per shift.  She said she earned between $50 and $450, depending on business.  She worked four shifts per week.  In the two weeks that the applicant was not working, she would have earned $2,000 had she worked every one of four shifts a week for the two week period.  That is the most that she would have lost as a result of the respondent's unlawful action.

She should have been paid one week's notice, which would be the sum of $1,000. I am satisfied, however, on her own evidence, that there was a risk that she would not have in fact worked the four shifts each week of the period from the time when she was terminated. I assess the risk that she would not have worked that at 33%. I therefore propose that there be an order that the respondent pay to the applicant $667 damages in lieu of notice, under s170DB(4) and s170EE(5) of the Act.

Similar reasoning applies in relation to compensation.  The applicant has been able to obtain other employment two weeks later.  The appropriate measure of compensation is $667, being $1,000 that she might have earned, discounted by 33%, being the risk that she would not, in the week beyond the period of notice, have in fact worked four shifts in that week.

It follows that the orders of the Court will be that the respondent pay to the applicant the sum of $667 pursuant to s170EE(5) of the Act, and the sum of $667 pursuant to s170EE(2) of the Act.

I certify that this and the preceding four (4) pages
are a true copy of the reasons for decision of
Judicial Registrar Murphy as recorded in the transcript
and revised by the Judicial Registrar.


Associate:      KAREN HALSE
Dated:            16 October 1996


APPEARANCES

Industrial Advocate for the applicant:	MR B TEE
Counsel appearing for the respondent:	MR B SHAW
Solicitors for the respondent:	FETTER GDANSKI
Date of Hearing:	16 OCTOBER 1996
Date of Judgment:	16 OCTOBER 1996