Christine Anne Vabec v Fourth Marsupial Pty Ltd
[1995] IRCA 504
•26 September 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2869 of 1995
B E T W E E N :
CHRISTINE ANNE VABEC
Applicant
AND
FOURTH MARSUPIAL PTY LTD T/AS RIVER WALK CAFE
Respondent
Before: Judicial Registrar Fleming
Place: Melbourne
Date: 26 September 1995
REASONS FOR JUDGMENT
Findings of Fact
Mrs Vabec (nee Bell) was employed by the Respondent on or about the 16 September 1994 as head chef at its River Walk Cafe/Restaurant in Southgate.
Mrs Vabec has fifteen years experience in the catering industry having worked as head chef at the Bourke Street diner for 7 years leaving it when it closed down and as second chef at the Club Hotel for four years.
Mrs Vabec was employed on a full-time permanent basis. Her duties included running the kitchen, creating menus and ordering some stock. Mrs Vabec introduced a salad bar and new ideas in presentation of foods. Her hours of work were 6am to 2.30pm or 3pm Monday to Friday. She trained and supervised a kitchen hand and to some extent supervised sandwich hands if they were performing kitchen duties.
Mrs Vabec provided her own chef’s uniform, and tools such as knives, mechanical kitchen tools, frypans, display plates, menus and recipe books.
The Respondents premises at Southgate have been described as a cafe/deli/restaurant. Customers order hot and cold food from the counter and may take it away or sit at the cafe. Mr and Mrs Fourniotis run the business and they work there along with five casual staff, one kitchen hand and two full-time staff.
During the period of Mrs Vabec’s employment the Respondent’s business improved. Mr Fourniotis raised the prices of his meals as a direct result of the improved display of food arising from the use of Mrs Vabec’s ideas, namely her display plates.
Mr Fourniotis would often congratulate Mrs Vabec for her good performance with a bonus of as much as $100. Mr Fourniotis gave Mrs Vabec at least ten bonuses in the eight months she was employed.
Mrs Vabec was married in April and had two weeks holiday from the 15 of April 1995. The employment relationship between Mrs Vabec and Mr Fourniotis was excellent for the first three months of her employment.
In or about late April 1995 Mrs Vabec described the relationship turning after she commented to Mr Fourniotis that staff turnover was high. In his evidence Mr Fourniotis agrees his staff turnover was high. Mrs Vabec said as many as 50 to 60 people were employed during the 8 months she was there. Mr Fourniotis said it was more like twelve to fifteen people. Ms Pirovich who commenced employment in February 1995 said there was a turnover of about fifteen people in the three months she was employed. Clearly, at least fifteen people left the employ of Mr Fourniotis in at least a three month period and I accept that it would have been more than that during the period of Mrs Vabec’s employment. Mr Fourniotis explained the high turnover of staff as that because they were casual staff they would stay within his employ until they found a better job. Ms Pirovich’s evidence was that the turnover was because Mr Fourniotis “treated us like idiots”. Mrs Vabec agreed with Ms Pirovich that Mr Fourniotis treated staff like idiots.
After Mrs Vabec raised her concerns about high staff turnover with Mr Fourniotis Mrs Fourniotis approached the Applicant and stated that she was not happy with the way Mrs Vabec had spoken to her husband and Mrs Fourniotis said “because my husband is a man and because he is Greek”. Mrs Fourniotis was not called to give evidence as to this conversation and it is clear that the employment relationship deteriorated thereafter.
I accept Mrs Vabec’s evidence that in her entire period of employment apart from the comment of Mrs Fourniotis she received no complaint about her conduct or performance. On the contrary she was praised by Mr and Mrs Fourniotis and rewarded with bonuses and was also praised by staff and customers. Mr and Mrs Fourniotis and Mrs Vabec would often have lunch together and Mrs Vabec described the initial employment relationship as very good and she was happy there.
After late April the employment relationship took a downward spiral culminating in the cessation of employment on the 8 of May 1995.
A catering order was taken by Mr Fourniotis late on Friday 28 April 1995. The end result was that the customer was dissatisfied. Mrs Vabec said the end product was not good because of the lateness of the order. I accept that although Mr Fourniotis was not happy with the way the product went to the client that he did not complain to Mrs Vabec otherwise than to say he was not happy but that “it’s their fault for giving late notice as well”. Mr Fourniotis described Mrs Vabec as moody and said that she did not talk to him for the rest of the week. I prefer the evidence of Mrs Vabec corroborated by Ms Pirovich that Mrs Vabec did speak to Mr Fourniotis throughout the week.
On Thursday the 4 of May 1995 Mrs Vabec noticed her menus were not in their usual place and on Friday the 5th of May she asked Mr Fourniotis for them and he said he did not have them.
Events of Saturday the 6 May 1995
On Saturday the 6 May 1995 Mr Fourniotis placed an advertisement in “The Age” newspaper (Exhibit A2) for Mrs Vabec’s position. The advertisement is as follows:
“ Chef. Permanent Position. Monday - Friday 6am to 2.30pm. Modern city deli. Must be experienced to program menus. Bain marie display and work without supervision Phone Sat and Sun after 11am Phone 531 1401.”
Mr Fourniotis’ personal phone number appears in the advertisement and the advertisement invites calls on Saturday and Sunday after 11am.
Mrs Vabec read the advertisement in “The Age” on 6 May 1995. Mr Nicholls who is a friend of Mrs Vabec’s gave evidence that Mrs Vabec telephoned him and said that she thought she had lost her job because it was advertised in the newspaper. Mr Nicholls offered to call the telephone number in the advertisement and make enquiries. Although Mr Nicholls did not know to whom he spoke he described the voice as a male voice “with an accent and lar de dar”. The voice said “if successful the start could be as soon as Monday”. The voice described the deli as the River Walk at Southgate. Mr Nicholls did not make an appointment. He rang Mrs Vabec and said he thought it was her job and he said Mrs Vabec was upset. I am satisfied that Mr Nicholls spoke to Mr Fourniotis on the telephone on the 6 May 1995 in response to Mr Fourniotis’s advertisement.
Ms Pirovich gave evidence that Mrs Vabec rang her “distraught” on 6 May 1995. Ms Pirovich said she went and got the advertisement and she could not believe it was Mrs Vabec’s job. She commented that maybe it was the wrong person. Ms Pirovich recognised Mr Fourniotis’s phone number. Ms Pirovich then in the afternoon of the 6 May rang the number. She spoke to a women first and then to a man who introduced himself as Nick and I am satisfied it was Mr Nick Fourniotis. After describing the position Mr Fourniotis said “the wage would be above award and could mean starting as soon as Monday.”
Ms Pirovich telephoned Mrs Vabec and said it was Mr Nick Fourniotis who had placed the advertisement and that it was her job. The women arranged to met early on Monday 8 May to go to work together. Ms Pirovich wanted to raise an issue of her pay with Mr Fourniotis and Mrs Vabec wanted to discuss her position as well in view of the ad on the 6 May. I accept Ms Pirovich’s evidence that she had no intention of resigning on Monday 8 May 1995.
Events of 8 May 1995
Mrs Vabec and Miss Pirovich arrived at work on Monday 8 May just before 6am. When they walked in the River Walk Cafe Mr Fourniotis was behind the counter and a security guard was standing in front of the counter. While Mr Fourniotis denied arranging for the security guard to be present I find that he did make arrangements for her presence and in the absence of evidence from the security guard I find that he did so because he anticipated trouble on Monday morning.
Ms Pirovich discussed her unpaid sick leave with Mr Fourniotis and the discussion concluded with Ms Pirovich receiving her remaining pay and Mr Fourniotis wrote “terminated” in the wage book (Exhibit R2) and Ms Pirovich wrote “quit”. While Ms Pirovich was having this discussion the security guard was requesting Mrs Vabec to return her keys.
Immediately after the discussion between Ms Pirovich and Mr Fourniotis Mrs Vabec concedes frankly that she was very angry and that she verbally abused Mr Fourniotis and called him names. Mrs Vabec initially said “Goodmorning Nick and why did you place my job in the paper.” Mr Fourniotis initially denied placing the advertisement.
Mrs Vabec became very angry and engaged in a clearly unorchestrated litany of bad language which was a clear indicator of how angry she was. Mrs Vabec said she did not hide behind the fact that she was abusive to Mr Fourniotis and stated in her evidence that that was because she was upset. Mrs Vabec concedes that after her outburst it is probably impossible for Mr Fourniotis to continue to employ her.
Ms Pirovich and the security guard witnessed the entire conversation between Mrs Vabec and Mr Fourniotis. Ms Pirovich said that Mrs Vabec was very angry and used foul language and that Mrs Vabec wanted to know why she was being put off, she said she was never told her position was in jeopardy, never told there were problems with her work and so why was the advertisement in the paper. She had made no arrangements for other employment.
I accept that Mr Fourniotis initially denied the advertisement and that he was “fuming, shaking, agitated.”
Mrs Vabec collected her belongings and in the process she smashed one of Mr Fourniotis’ plates. I accept that she smashed this plate in anger. Mrs Vabec said it was her plate but I prefer the evidence of Mr Fourniotis that, while it may once have belonged to Mrs Vabec, he had paid her for it.
During the course of this conversation which was about fifteen minutes duration the security guard asked Mrs Vabec for her keys on several occasions and Mr Fourniotis also asked her for the keys. Mrs Vabec refused to hand them over until she received all her belongings. Later that day she handed the keys in at the St Kilda police station.
Resignation or Termination
Mr McNab for the Respondent submitted that Mrs Vabec resigned on the 8th of May. Mr McNab submitted that the Applicant could not successfully submit that her dismissal was constructive and he relied on the article in the Australian Law Journal Volume 68 page 494 by Greg McCarry entitled “Constructive Dismissal of Employees in Australia” states:
“What is meant by a “constructive dismissal” is a matter of some confusion, especially in Australia, for the usage varies and the phrase is nowhere used in applicable statutes. But it is enough in this introduction to indicate that it is a departure from employment which though formally accomplished by the act of the employee, is to be regarded in some circumstances as a dismissal by the employer.”
While Mr McNab submitted that the placement of the advertisement was an invitation to treat, I am not persuaded by the submission.
I do not accept that the Applicant resigned. I find that her employment contract was repudiated and that the employer repudiated it when he placed the advertisement which he would have placed on approximately Thursday 4 May 1995. While Mrs Vabec’s conduct on the 8 May was inappropriate, in all the circumstances it was understandable that she was angry and upset.
Mrs Vabec’s employment was terminated at the initiative of her employer. In doing so the Respondent has breached Part IVA Division 3 of the Act.
Remedy
Mrs Vabec was entitled to notice under s170DB she was denied both procedural and substantive fairness and the way in which Mrs Vabec was treated was clearly harsh, unjust and unreasonable in all the circumstances.
Mrs Vabec does not seek reinstatement. She has other employment and given what occurred on the 8 May 1994 I do not believe the employment relationship could ever be redeemed accordingly I do not order reinstatement.
In relation to compensation the evidence is conflicting as to how much Mrs Vabec earned. The Respondent was able to produce documentary evidence as to the weekly figure the Applicant received (Exhibit R1) that being $301.75 net. The Applicant did not provide documentary evidence of her stated earnings which she claims to be $450 initially increasing to $500 per week net after the first three months. Exhibit R1 reveals that Mrs Vabec was receiving $301.75 for a forty hour week. Mrs Vabec received bonuses of between $20 to $100 per week and I accept that there were at least ten such bonuses. Mrs Vabec stated that Mr Fourniotis was not recording his wages accurately and that regardless of what he wrote in his wages book she received $500 per week after her first three months of employment.
Ms Pirovich gave evidence that she received the amount that was written in the wage book (Exhibit R2) that is $294 per week. She occasionally received a $5 bonus. Ms Pirovich was employed as a sandwich hand.
Mrs Vabec was unemployed from 8 May 1995 to 29 June 1995 a period of approximately 7 weeks. In all the circumstances I prefer the evidence of Mrs Vabec in relation to her wages. I accept the submission of Mr Lawrence that it is not plausible to accept that Mrs Vabec the head chef, was receiving a mere $8 per week more than Ms Pirovich who was the sandwich hand. I am also guided by the difference between the bonuses that Mr Fourniotis gave to both women. Mrs Vabec’s bonuses were between $20 and $100 on at least ten occasions whereas bonuses to Ms Pirovich were an occasional $5. Furthermore, the evidence of Mrs Vabec that she is currently receiving $421 net per week is persuasive. I have also taken into account Mrs Vabec’s employment history, fifteen years in the industry, and this is an indicator that she is a senior and most qualified chef and it is not plausible that she would be working for $301.75 net per week.
MINUTES OF ORDERS
THE COURT ORDERS:
The Respondent pay to the Applicant the sum of $3500 in compensation.
The Respondent pay to the Applicant the sum of $500 in damages.
Time for payment is twenty-one days from the date of this order.
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 eleven (11) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.
Associate:
Dated: 26 September 1995
Solicitors for the Applicant: Slater & Gordon
Counsel for the Applicant: Mr A. Lawrence
Solicitors for the Respondent: Robert Green & Co
Counsel for the Respondent: Mr A.R. NcNab
Date of hearing: 18 September 1995
Date of judgment: 26 September 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CONSTRUCTIVE DISMISSAL OR RESIGNATION - VALID REASON - HARSH, UNJUST & UNREASONABLE.
Industrial Relations Act 1988 ss. 170DB, 170DC, 170DE & 170EDA(2).
CASES:Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199
APESMA v Skilled Engineering 122 ALR 471
Western Excavations (ECC) Ltd v Sharp (1978) 1 QB 761
CHRISTINE ANNE VABEC -v- FOURTH MARSUPIAL PTY LTD
No. VI 2869 of 1995
Before: Judicial Registrar Fleming
Place: Melbourne
Date: 26 September 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2869 of 1995
B E T W E E N :
CHRISTINE ANNE VABEC
Applicant
AND
FOURTH MARSUPIAL PTY LTD T/as RIVER WALK CAFE
Respondent
MINUTES OF ORDERS
Judicial Registrar Fleming 26 September 1995
THE COURT ORDERS:
The Respondent pay to the Applicant the sum of $3500 in compensation.
The Respondent pay to the Applicant the sum of $500 in damages.
Time for payment is twenty-one days from the date of this order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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