Byrne v Domjahn

[1996] IRCA 361

DECISION NO:  361/96

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination at the initiative of the employer

Industrial Relations Act 1988, ss 170EA

FELICIA ELIZABETH BYRNE v KIM DOMJAHN
VI 1228 of 1996

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  5 AUGUST 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1228 of 1996

B E T W E E N:

Felicia Elizabeth BYRNE
Applicant

A N D

Kim DOMJAHN
Respondent

MINUTES OF ORDERS

5 August 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. The application is dismissed.

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

VI 1228 of 1996

B E T W E E N:

Felicia Elizabeth BYRNE
Applicant

A N D

Kim DOMJAHN
Respondent

REASONS FOR DECISION
delivered ex tempore

5 August 1996  PARKINSON JR

The applicant was employed by the respondent, Mr Domjahn, in what could best be described as a cottage industry.  The respondent operated a business out of his garage at his domestic premises, creating folk art reproductions.  The respondent received a subsidy for the employment of the applicant pursuant to the Jobstart program.  That subsidy contributed $169.00 per week in the first 13 weeks of the employment and $85.00 per week in the following 26 weeks (exhibit R2).  After that time the weekly subsidy ceased.  The evidence is that the respondent would receive a bonus payment of $368.00 after the applicant completed 12 months employment, but there had been no ongoing payment beyond October 1995.

The applicant and the respondent had occasions during the course of the employment to disagree, and there was some ongoing disputation between them in the employment as to the manner in which work was to be done, and the facilities or work environment.  However, there is no evidence in this proceeding that the applicant’s work performance was of continuing concern to the respondent, indeed there was greater responsibility placed upon the applicant in the course of the employment, particularly after Mr Domjahn commenced to work in full-time employment outside of the business.

The respondent did not contend that there was valid reason for the termination of employment based upon work performance, conduct or operational requirements. The issue in this case is whether there was a termination of employment at the initiative of the employer, which is the type of termination of employment contemplated by s170EA of the Act.

The applicant’s evidence is that on Friday 9 February 1996 she left the workplace to proceed on annual leave, this leave having been prearranged with the respondent in a conversation in the fortnight prior when Mr Domjahn had asked the applicant when she would be taking her leave.  She initially said that she would tell him of the dates she wanted annual leave after speaking to a travel agent.  The applicant’s evidence is that some ten minutes later she decided not to wait and she advised Mr Domjahn that she wished to take her leave commencing on Monday 12 February 1996.  Her evidence is that he agreed to the dates for the annual leave.  Mr Domjahn’s evidence was that there was a conversation as to the annual leave in the terms set out above, save for the applicant’s evidence as to her advice ten minutes later.  At this time, the applicant made no mention of the fact that she was arranging or had arranged to have elective surgery in the course of the first week of the proposed leave.

On Friday 9 February 1996 the applicant, having not seen the respondent at all during that day, received her pay for the week.  Unlike on previous occasions of leave, there was no note acknowledging the leave, nor was there any payment of holiday pay.  The applicant left the workplace.

It is apparent to the court that there was a misunderstanding as to the applicant’s annual leave arrangements.  I am satisfied that the respondent genuinely did not understand the applicant to be commencing her leave on and from Monday 12 February.  The evidence in these proceedings establishes no basis for a conclusion that the respondent, having raised the question of annual leave with the applicant in the first place, would have then sought to prevent her taking notified leave.  The evidence is that the applicant had previously, in December 1995, taken leave by arrangement with the respondent, and at a time convenient to her, although different to that which the respondent had requested.  Whilst it is likely that the applicant did change her mind as to the arrangements as to leave, I am not satisfied that the respondent had clearly heard the proposed dates or arrangements.

The applicant contacted the respondent by telephone, on her evidence on Friday 9 February, to query why she had not been paid annual leave entitlements upon commencing her leave.  There was discussion between the parties as to the advice of leave and the discussions became heated.  The applicant advised the respondent that she was discontinuing the conversation, and hung up the telephone.  Some five or ten minutes later the respondent rang the applicant and the conversation resumed.  The evidence of the applicant is that she then queried the respondent as to whether he wanted her to work another week.

The respondent’s evidence is that the applicant said “I’ll give you a weeks notice and maybe you’ll remember that”.  He then said he would contact the CES to find out whether anything could be worked out.  The telephone conversation finished.

The applicant did not attend work on the following Monday.  Nor did she attend work at any time in the following week.  There were no enquiries made by the applicant or anyone on her behalf in the rest of that week as to the situation with her employment.  No advice was given to the respondent as to the applicant’s surgery, and the respondent was not given any medical certificate to indicate that the applicant was on sick leave.

If the conversation between the parties had been as described by the applicant as to the additional weeks notice of leave, then it would be reasonable to expect that she would have taken at least one of the steps set out above in the week following the telephone conversation.

Whilst I accept that there was a subsequent telephone conversation on 19 February 1996 between the applicant’s mother and the respondent wherein the status of the applicant’s employment was discussed, and wherein the term ‘dismissed’ may have been used, I am not satisfied that the respondent in that conversation did anything other than acknowledge that the conversation between the applicant and he on the previous weekend resulted in the applicant terminating her own employment.

That is my conclusion also on the basis of my findings of fact set out herein. I am not satisfied that there was a termination of employment at the initiative of the employer. I am not satisfied that this court has jurisdiction to hear and determine the application made pursuant to s170EA of the Act. The application is dismissed.

I certify that this and the preceding four (4) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson delivered ex tempore
and revised by the Judicial Registrar.

Associate:
Dated:  5 August 1996

APPEARANCES

Counsel appearing for the applicant:  Mr M Perica
Solicitors for the applicant:  Ryan Carlisle Thomas

Counsel appearing for the respondent:  Mr S Stuckey
Solicitors for the respondent:  Newbury Bell

Date of hearing:  5 August 1996