Christina Sultan Dogan v LLoyds Vineyard
[1996] IRCA 29
•6 Feb 1996
DECISION NO: 29/96
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3668 of 1995
B E T W E E N :
CHRISTINA SULTAN DOGAN
Applicant
AND
LLOYDS VINEYARD
Respondent
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 6 February 1996
EX-TEMPORE REASONS FOR JUDGMENT
This proceeding for a remedy under Division 3 of Part VIA of the Industrial Relations Act (“the Act”) arises out of the aftermath of the breakdown of a personal relationship between the applicant and Mr Darren Lloyd, the Production Manager of the respondent.
The issues.
The parties to the proceeding identified the issues to be determined prior to a determination of the merits of the application. These issues were whether there had been a “termination at the initiative of the employer” and if so whether the applicant was in any event excluded from the protection of the Act by reason of Regulation 30B of the Industrial Relations Regulations (“the Regulations”).
Evidence was called covering all issues in the proceedings and my findings on the evidence are as follows. The applicant commenced employment with the respondent as a casual grape-picker in March 1994, during the picking season. Thereafter when the season ended she sought work in the factory side of the respondent's operation. The respondent is a vineyard. The main output of the vineyard is grape juice. Some jam is also produced. The grapes are crushed after harvesting and the juice is then stored and bottled as orders are placed from a number of regular distributors.
The main demand for labour in the factory is for casuals to assist with all aspects of botting. Bottling runs are conducted and vary in length but are usually for two to three weeks. The respondent has a team of five casual employees who are notified prior to a run, attend at work for the duration of the run and are paid on an hourly basis. The applicant worked on that basis for the period from May 1994 to June 1995. Some weeks she would not work; in others she would work every day or in others only a couple of days.
Soon after commencing employment she developed a personal relationship with Mr Lloyd that continued until 22 June 1995. Within the workplace the applicant was a good worker. At times friction developed with another employee who had been employed on the same basis as the applicant for some years. The applicant was jealous about this woman who it was alleged within the workplace may have had a soft spot for Mr Lloyd. In May or June 1995, in response to this friction, Mr Lloyd actually developed a roster within the workplace to ensure that all employees were treated equitably.
On 22 June 1995 the applicant and Mr Lloyd decided to end their relationship. The evidence of Mr Lloyd was that this was an amicable decision: “we agreed we'd call it off.” This evidence was not challenged.
The following day an incident occurred at work between Jeanette, the woman referred to previously, and the applicant, and the applicant stormed off home at lunch time. The following night, or a day or two thereafter, Jeanette's car was vandalised at a licensed club in New South Wales. Thereafter the applicant was questioned by police about the matter. She denied any involvement in the incident to Mr Lloyd. On the following Tuesday both the applicant and Jeanette attended work and Mr Lloyd told them that the car incident was a matter not relevant to the workplace.
On that day the applicant was taken away by police for further questioning. When she returned Mr Lloyd overhead her saying to another employee: “I don't want to work here. I'll leave.”
She said she was being wrongly accused by the police for the involvement in the car vandalism. Mr Lloyd, in unchallenged evidence, said that she should not leave if the allegations were false or she would look guilty.
On Wednesday the applicant told Mr Lloyd that she had not actually been involved in the car incident but that she knew who had done it.
A day or two after this the police executed a search warrant at the home of Mr Lloyd’s father looking for unlicensed firearms. Some time during this week the applicant told Mr Lloyd she would not be working for the rest of the week. He indicated to her that the bottling run was to end that week and she would not be required for work the following week.
The crucial conversation.
Central to the proceeding is a conversation that took place at about 6 pm on Friday 30 June 1995. Mr Lloyd was just finishing work. He was not expecting the applicant. He had last seen her on the Wednesday when she indicated she would not be working for the rest of the week. The applicant arrived at the factory and a conversation ensued.
Mr Lloyd said that he raised with the applicant whether she had provided the police with information regarding the possession of unlicensed firearms by his father. (Evidence was led from Mr Lloyd that firearms had been secreted, for a couple of months, some months previously at the applicant's house.) The applicant denied providing information to the police. Mr Lloyd then raised the fact that he found it difficult to accept this as she had previously told him that she was not involved in the car incident but had later admitted she knew who was involved. The applicant then said: “I suppose I should leave?” Mr Lloyd had replied: “No, but please yourself.”
The applicant then asked for a separation certificate. Mr Lloyd said in evidence that he did not mind if she continued working. “It was her conscience that she had to live with.”
The applicant's version of the conversation was that after the discussion regarding Mr Lloyd's father's firearms, Mr Lloyd said: “Stop me from dismissing you.” Mr Lloyd had then pulled out a separation certificate and completed it. The certificate indicated that she had left due to a shortage of work.
It was common ground that a finding as to the preferable version of this conversation is necessary to determine whether or not there has been a “termination at the initiative of the employer”. The authorities require that it be the act of the employer that ends the employment relationship. The employee must not voluntarily leave the employment.
Here, I prefer the respondent's version of the conversation. The applicant's counsel heavily pressed Mr Lloyd that the whole incident relating to the car occurred after 30 June. The applicant, under cross-examination, ultimately conceded that the incident occurred before she left the employment. The applicant also conceded unhappiness with the work place. She admitted she had on occasion discussed resignation with Mr Lloyd. She admitted revenge was her motive for her involvement in the car vandalisation. She ultimately pleaded guilty to that offence.
The applicant, on her own evidence, was bitter and uncomprehending at the demise of her relationship with Mr Lloyd. Under cross-examination she changed or modified her evidence on a number of important issues. Parts of her evidence on crucial issues were not put to Mr Lloyd in cross-examination and smacked of recent invention.
In contrast, Mr Lloyd was not shifted from his version of events in cross-examination. He gave an explanation as to why he completed the separation certificate in the way he did. He did so to ensure that the applicant's unemployment benefit would not be adversely affected by her departure from the respondent. Admittedly Mr Lloyd had a motive to get rid of the applicant, but unlike her I am satisfied that the ending of the relationship did not invoke a jealous or revengeful response. In contrast, the reality was that the applicant could hardly re-enter the workplace having been involved in the vandalisation of a fellow employee's car and having been rightly accused by Mr Lloyd of betraying his father to the police.
Further, I am satisfied on the evidence that she had had enough of the place. She claimed that she was being wrongly blamed for things in the workplace. She can only have been referring to two matters, the car and the firearms, which I am satisfied she was rightly blamed for. In her own words, by 30 June, she had “had a gutful”. For all these reasons, and having regard to the presentation and demeanour of both witnesses, I accept the respondent's version that it took no action to end the employment relationship. It was the applicant who resigned on 30 June.
Having regard to this finding, it is unnecessary to consider the further issue as to whether the applicant was excluded under Regulation 30B in any event. If it was necessary to decide this issue, I would find that she was included because she had been employed on a “regular and systematic basis” in the factory and had an “expectation of continuing employment”.
The Order of the Court will be that the application is dismissed.
MINUTES OF ORDERS
Judicial Registrar Murphy 6 February 1996
THE COURT ORDERS:
That the application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.
Associate:
Dated: 6 February 1996.
Solicitors for the Applicant: Garden & Green
Counsel for the Applicant: Mr C O’Grady
Solicitors for the Respondent: A J Macken & Co
Counsel for the Respondent: Ms M Trevisiol
Date of hearing: 6 February 1996
Date of judgment: 6 February 1996
C A T C H W O R D S
INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether RESIGNATION or TERMINATION OF EMPLOYMENT by employer - CASUAL EMPLOYMENT - casual factory hand employed for regular bottling runs - whether included as a casual employee.
Industrial Relations Regulations - Regulation 30B
CHRISTINA SULTAN DOGAN -v- LLOYDS VINEYARD
No. VI 3668 of 1995
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 6 February 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3668 of 1995
B E T W E E N :
CHRISTINA SULTAN DOGAN
Applicant
AND
LLOYDS VINEYARD
Respondent
MINUTES OF ORDERS
Judicial Registrar Murphy 6 February 1996
THE COURT ORDERS:
That the application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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