Carolyn Maree Sidaway v David Vodic Nominees Pty Ltd
[1995] IRCA 516
•22 June 1995
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - WHETHER VALID REASON FOR TERMINATION - ALLEGED THEFT OF DOCUMENT - COMPENSATION
INDUSTRIAL RELATIONS ACT 1988 , ss170EA, 170DE
CAROLYN MAREE SIDAWAY v DAVID VODIC NOMINEES PTY LTD
QI 94/0241
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 22 JUNE 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 94/0241
QUEENSLAND DISTRICT REGISTRY
BETWEEN: CAROLYN MAREE SIDAWAY
Applicant
AND: DAVID VODIC NOMINEES PTY LTD
Respondent
MINUTE OF ORDERS
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 22 JUNE 1995
THE COURT ORDERS THAT:
1.The application be allowed.
2. The respondent pay to the applicant the sum of $4000 within 14 days of the date of these orders.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 94/0241
QUEENSLAND DISTRICT REGISTRY
BETWEEN: CAROLYN MAREE SIDAWAY
Applicant
AND: DAVID VODIC NOMINEES PTY LTD
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 22 JUNE 1995
REASONS FOR JUDGMENT
In the course of the trial I gave leave to the applicant to amend the name of the respondent to read "David Vodic Nominees Pty Ltd, ACN 007806760", it being agreed by the parties that this entity was in fact the employer of the applicant.
The facts, as I find them, are as follows. The applicant, now aged 30, had worked selling cars for perhaps eight years prior to her employment with the respondent, a new and used car dealership at Nambour, Queensland.
In about August 1993, the applicant changed from selling new cars to a position as Customer Relations Manager. In early July 1994, before she left to marry, she was told she had to return to selling new cars which she did, but reluctantly. She explained her reluctance as being partly related to having to be "one of the boys", including listening to the salesmen's lewd jokes. She had also, not surprisingly, lost many of her sales contacts in the meantime, which she would be obliged to renew.
On a Friday in apparently late July 1994 the applicant attended a sales meeting at which the principal of the dealership made it clear that sales staff were expected to sell 10.5 cars per month if they wished to keep their jobs. The principal directed the Administration Manager to prepare a memo reflecting these facts to be placed on the desks of sales staff the following Monday.
This target caused the applicant some concern about the likely security of tenure of her job. She resolved to take the memo to the local Industrial Inspector to seek advice.
The applicant's evidence was that she found the memo, with her name on it, by going to the office of the Administration Manager, locating it on his desk, photocopying it, returning the document she had copied to his desk, and keeping the photocopy.
Some days later, on 5 August 1994, the applicant was called into the General Manager's office, accused of stealing a company document, and her employment was thereupon terminated. The company document referred to was the memo. According to the respondent's case, a decision had, subsequent to the Friday meeting, been taken not to distribute the memo to staff.
Where there is any conflict between the evidence called on behalf of the applicant and that of the respondent, I prefer the evidence in the applicant’s case. I was unimpressed by the respondent’s principal witnesses.
I accept the evidence called for the applicant that not only were the contents of the memo well known to those staff affected by it, but some already had copies themselves before the applicant went to the Administration Manager's office and photocopied the one with her name on it. However the applicant's conduct is categorised, what she did in these peculiar circumstances hardly amounted to misconduct justifying the summary termination of her employment. The respondent had no valid reason within the meaning of ss 170DE(1) of the Act for the termination, and it is in breach of that subsection.
Less than a month after termination, the applicant took up employment as a manageress for a boutique in Mooloolaba. That employment was, initially, part-time and since February 1995 has been full-time. While the applicant's earnings have not matched those she might have expected from continuing employment with the respondent, I do not think it appropriate in this case to approach the assessment of compensation by resorting to a strict comparison between the earnings from the applicant's current and former employments. I consider that a contingency of some weight in this case is the applicant's evident distaste at having to return to new car sales, the prospect being that a change of employment might have held attraction for her in the not too distant future.
On termination the applicant was paid the compensation required by the Act instead of notice.
The applicant expressly disavowed reinstatement as a remedy. She put it on the basis that she had no respect any more for the "man", which I take to be a reference to the principal of the business, and did not want to return to work there. I find reinstatement to be impracticable.
I consider that appropriate compensation is the sum of $4000, which represents, after taking into account compensation instead of notice, and part-time earnings, the equivalent of about 8 weeks loss of remuneration.
The orders I make are that:
The application is allowed.
The respondent pay to the applicant the sum of $4000 within 14 days of the date of these orders.
I certify that this and the preceding TWO (2) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 22 June 1995
Counsel for the Applicant: Mr Diehm
Solicitor for the Applicant: Butler, McDermott & Egan
Counsel for the Respondent: Mr Horneman-Wren
Solicitor for the Respondent: Watson & Co
Date of hearing: 2 June 1995
Date of judgment: 22 June 1995
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