Cansever Yegen and Defab Weavers Pty Ltd
[1994] IRCA 60
•13 Oct 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI No.627 of 1994
VICTORIA DISTRICT REGISTRY
BETWEEN:
Cansever YEGEN
Applicant
AND:
DEFAB WEAVERS PTY LTD
Respondent
MINUTES OF ORDER
13 October 1994 TOMLINSON JR
THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $6,000.00 within one month of the date of this judgment
The respondent forward to the applicant a separation certificate within 14 days of the date of this judgment.
NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI No.627 of 1994
VICTORIA DISTRICT REGISTRY
BETWEEN:
Cansever YEGEN
Applicant
AND:
DEFAB WEAVERS PTY LTD
Respondent
REASONS FOR JUDGEMENT
13 October 1994
TOMLINSON JR
Date of Hearing: 4, 5 October 1994
By application dated 24 June 1991 the applicant under Section 170 EA of the Industrial Relations Act 1988 (“the Act”) claimed:
in order that the termination of the employment contravened Division 3 of Part VIA of the Act.
reinstatement.
compensation.
such other orders that would put the employee in the same position had the employment not been terminated.
At the beginning of this matter on 4 October 1994 Mr. Irving for the applicant stated the applicant was not seeking reinstatement. The applicant sought:
a.a finding under Section 170 DE (1) that the respondent terminated the employment without a valid reason, or that.
b.a finding that under Section 170 DE (2) the termination was harsh, unjust and unreasonable; and.
c.the applicant would seek to prove that under Section 170 DB the respondent failed to give the required period of notice. Mr. Burchardt on behalf of the respondent stated that the evidence would show the applicant resigned voluntarily.
Different accounts were provided by the parties and their witnesses as to the circumstances which surrounded the applicant leaving the employment of the respondent. The applicant is thirty four years of age and in 1984 came from Turkey to live in Australia. The respondent is a fabric manufacturer at Reservoir and it was common ground that the respondent employed the applicant as a production worker and trained her to become a mender on the production line in mending fabric. The respondent is a small family owed company of some three family members that employs seventeen people. The applicant commenced employment with the respondent six years ago in 1988 having had no prior employment. From all accounts the applicant was a good employee, competent at her work.
The court heard evidence from the following witnesses:
· the applicant Mrs. Cansever Yegen.
· her husband Mr. Yegen.
· Mr. Nunzio De Petro, the managing director and part owner of the respondent.
·Mrs Suzie Elizabeth De Petro, the wife of Mr. De Petro and also a part owner of the respondent, factory supervisor.
·Mr. Guiseppe De Petro, the son of Mr. & Mrs De Petro, sales representative and office manager.
· Mrs Menka Zendawski, a process worker and mender employed by the respondent.
· Mr. Paul De Menadetto, factory hand employed by the respondent.
The circumstances giving rise to the applicant’s ceasing to work for the respondent began some twelve months ago when the son of the applicant telephoned the office of the respondent and advised his mother would be unable to come to work due to trouble with her car. The court heard differing accounts as to what happened next but for the purpose of these proceedings I find that the applicant found it necessary to take her husband with her when she did later on report for work and that I am of the view that her husband would not have so accompanied her to her place of work except in exceptional circumstances.
In these proceedings I find those exceptional circumstances to be that the applicant’s employment was in some way threatened by the respondent. From the evidence before the court this threat did not take the form of a warning nor of counselling to the applicant. Additionally, evidence was given concerning an incident allegedly involving the applicant being refused permission to leave work to obtain specialist medical treatment and also the time of the applicant’s hours of work being altered so she could take her nine year old daughter to school.
Similarly with other incidents which will be dealt with later, I find that neither incidents are relevant to the allegation of unlawful termination and so I do not propose to deal with them.
The culminating events leading to this application occurred on 23 May 1994 and on 24 May 1994. The court heard evidence from witnesses that the respondent owners and their employees sat each day and ate their lunch together in certain fixed spots. On 23 May 1994 the factory had a delivery of materials - this took place either during or just after lunch. The applicant testified the supervisor, Mrs Suzie De Petro prevented her from ascertaining if the delivery truck had damaged the applicant’s vehicle during the course of the delivery. In any event there was no evidence given to the court that the applicant in any way attempted to ascertain the extent of any alleged damage her vehicle may have sustained. What may or may not have happened at that time set the scene for the following day.
It is clear that the applicant arrived at work on 24 May 1994 and that a conversation ensued between the applicant and Mrs Suzie De Petro wherein the alleged damage sustained by the applicant’s vehicle the previous day was discussed. It was common ground that Mrs De Petro said to the applicant words to the effect:
"Is this one of your money making schemes like the last time?”
As to what happened then is unclear.
The incident referred to by Mrs De Petro occurred some time previously and involved the applicant and another member of staff. The court was advised on behalf of the applicant that the other member of staff had caused damage to the bumper bar of the applicant’s vehicle. The parties had settled the matter between themselves. Although such an occurrence would have caused friction in the small work environment in which it occurred, I do not find the occurrence per se of that incident relevant to the application before the court but only relevant in that Mrs De Petro saw fit to comment upon it after a considerable period of time.
I find this comment not to be in the form of a warning or a caution nor did it relate to the work performance of the employee. I do not find it to be an act of constructive dismissal.
This court is not in a position to determine all the facts surrounding the departure of the applicant from her employment and from the building of the respondent. At this juncture immediately following the remark of Mrs. De Petro the applicant states Mrs De Petro then summarily dismissed her and Mrs De Petro correspondingly states the applicant voluntarily resigned. Shortly after the conclusion of the incident and immediately following the departure of the applicant from the workplace Mr. Nunzio De Petro together with his son telephoned the Australian Chamber of Manufacturers to clarify the position of the respondent. As a result of that telephone conversation the respondent was advised by the Chamber of Manufacturers the alternatives available. It can be presumed that those alternatives were discussed by father and son.
As a result of that conversation the following letter was typed by the son, signed by the applicant and forwarded to her:
“Dear Mrs Yegen,
RE: Verbal Resignation
Due to your verbal resignation on 24 May 1994, we forward amount owing to you as your final payment as employee of Defab Weavers Pty. Ltd. We hereby accept your resignation effective immediately.
We are saddened by your decision to so suddenly resign, however we wish you the best in your future endeavours.
With Best Regards,
Mr. N. De Petro
Managing Director.”
I am of the view that if the applicant had simply resigned the respondent would not have found the need to telephone the Chamber of Manufacturers. There would have been no need for the call to have been placed had that been the case.
Evidence was given on behalf of the respondent that no attempt was made to contact the applicant after she left the premises on 24 May 1994 even though it had been stated she was found to be a good employee. That course of conduct in my view is consistent with unlawful termination.
Having considered all the information before the court I find that the actions of the respondent towards the applicant amounted to an unlawful termination and that there has been a contravention of Division 3 of Part VI A of the Act.
I find the respondent terminated the employment of the respondent without a valid reason and that the termination was harsh and unjust.
Evidence from co-employees still employed by the respondent must be treated cautiously and further the court notes it was common ground from all parties that there was a substantial noise level in the factory that necessitated all people wearing ear muffs. Accordingly I am of the view that complete accuracy with regard to the relating of conversations could not be obtained.
The court heard evidence that apart from a visit some two weeks after her termination the applicant has done nothing to mitigate her loses. The applicant had no job experience prior to commencing with the respondent and had only limited English. Her work skills were limited to working as a fabric mender on a production line. There was no evidence she attempted to obtain a Separation Certificate from the respondent in order to assist her to obtain replacement employment. There was some suggestion that the Commonwealth Employment Service required this certificate before the applicant could attend a class to improve her English - something that she said she wished to do.
The court notes that Mr. Nunzio De Petro will supply the appropriate Separation Certificate to the applicant.
At the commencement of the hearing of the matter counsel for the applicant stated the applicant did not seek reinstatement. Accordingly I am of the view that compensation payable to the applicant should cease on 4 October 1994. It is noted that the respondent has filled the applicant’s position and now has his full quota of fabric menders working on the production line.
Section 170 DB provides an employer must not terminate an employee’s employment unless the required period of notice was given. In this case that period is at least four weeks notice.
Differing evidence was placed before the court as to the applicant’s average weekly wage. On some occasions overtime was earned and some occasions not. I find that the applicant has sustained loss at the rate of $380.00 per week from the 24 May 1994 until the 4 October 1994. Having regard to the work experience and background of the applicant this court finds that the actions of the applicant were reasonable in the efforts taken to obtain further employment.
Accordingly I order that the respondent pay to the applicant the sum of $6,000 by way of compensation.
I have not dealt with other matters raised by the representatives of the applicant and the respondent in their submissions to the court and I am of the view that those alternate submissions did not apply in the facts of this case.
MINUTES OF ORDER
THE COURT ORDERS THAT:
The respondent pay to the applicant the sum of $6,000.00 within one month of the date of this judgment
The respondent forward to the applicant a separation certificate within 14 days of the date of this judgment.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgement of Judicial Registrar Tomlinson.
Associate:
Dated : 13 October 1994
Solicitor for the Applicant : Messrs Maurice Blackburn & Co
Counsel for the Applicant. : Mr. M. Irving
Solicitors for the Respondent : Messrs Phillips Fox
Counsel for the Respondent : Mr. J. Burchardt
Dates of Hearing : 4, 5 October 1994
Date of Judgement : 13 October 1994
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