Colin Matthew Connally v Malifind Pty Ltd

[1995] IRCA 62

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1919 of 1994

BETWEEN:

COLIN MATTHEW CONNALLY
Applicant

AND

MALIFIND PTY LTD
Respondent

REASONS FOR JUDGMENT

1 March 1995  Judicial Registrar Murphy

Introduction

From June 1993 until 11 October 1994 the applicant was the manager of a large commercial Friesian stud and dairy farm located at North Mooroopna in Victoria. On 11 October 1994 his position as farm manager was terminated. It is alleged that the termination was in breach of ss.170DC and 170DE of the Industrial Relations Act (“the Act”) and he seeks compensation under s.170EE.

Background

Until about November 1992 the Managing Director of the applicant, Mr Norman Lothian, and his wife Lynette Lothian, in the course of their marriage, built up a large successful diary property, known as Woodhurst Farm.  They had five children but unfortunately in about November 1992 they separated and Mr Lothian went to live in Melbourne.  Mrs Lothian remained on the farm and sought to manage it.  In June 1993 the applicant was appointed Farm Manager.  He moved into one of the houses on the property but soon after formed a relationship with Mrs Lothian.  Mr and Mrs Lothian divorced in April 1994 and in June 1994 the applicant married Mrs Lothian, who became Mrs Connally.

The applicant, prior to June 1993, was employed by the Department of Rural Affairs and had been so employed for some twenty six years.  He was a very well experienced farm manager.  He was induced to leave the department to manage Woodhurst Farm by an agricultural consultant acting on behalf of Mr Lothian, Dr Sandles.  Mr Lothian had nothing to do with the employment, it being arranged by Dr Sandles.  The then Mrs Lothian on the evidence had no involvement in his commencing employment either.

The farm was at all times owned by the respondent company and at no time was Mrs Lothian a director of the respondent.  Mr Norman Lothian holds 99% of the shares in the respondent with 1% being held by his secretary.  Mrs Connally was paid a salary by the respondent.

The applicant commenced as Manager in June 1993 on a salary of $600.00 per week with free accommodation.  He was required to manage the farm and his duties included dealing with staff, milking the cows, arranging maintenance, and attending to irrigation.  Mrs Lothian also performed duties on the farm associated with the stud operation and one of her sons, Bryce Lothian, worked on the farm.  Significant management decisions were taken by Mr Lothian, in Melbourne.  He or his secretary were required to be consulted on major items of expenditure or decision.  Apart from this he took no involvement in the running of the farm and the applicant gave uncontested evidence that he had never spoken to Mr Lothian.  All liaison in relation to the property was between Mrs Lothian and Mr Norman Lothian.  When the applicant commenced the farm had two farm labourers of long standing.

The applicant and his wife went on a one month honeymoon in June 1994.  Over that period the farm was run effectively by Bryce Lothian and Mr Lothian gave evidence that he attended at the farm on weekends.  Over that period one of the long term staff members left and another left on the day that Mr Connally returned to work.  There is a conflict in the evidence about the reason for their leaving but after the applicant’s return from his honeymoon in July it was agreed that decisions in relation to the employment of farm labourers were to be undertaken by Bryce Lothian and his father rather than the applicant.  This was because of the applicant’s view that Bryce Lothian was the cause of the loss of the two labourers.  The two labourers who left were replaced.

Relations between the applicant and Bryce Lothian had apparently been cordial up until the time of the honeymoon but from that time on the applicant formed a view that Bryce Lothian was not pulling his weight on the farm.  Bryce Lothian gave evidence that he was of the opinion that the applicant had married his mother for her money.  In about August Bryce Lothian became ill and was off work for about one and a half weeks.  When he returned he advised his mother that on doctor’s orders he could only work for approximately two hours per day and from that time on until the date of dismissal would basically only work for a couple of hours of a morning.  This was of source of aggravation to his mother, the now Mrs Connally, and she gave evidence that she raised the matter with him on numerous occasions and also with her former husband, but to no avail.  Her evidence, which was not really challenged, was that the applicant appeared to be fit to work but was not prepared to put the effort in.

The period September/October was a very busy period for the farm with cows calving and fresh spring grass.  Up until 10 October the applicant had been working very long hours and his work load was increased by the fact that irrigation started early that year and the reduced working hours of Bryce Lothian.  By 10 October both the applicant and his wife gave evidence that they were exhausted.  The applicant said he had not had a day off for six weeks.  He said that he was supposed to be entitled to three days off a fortnight but was unable to take them because of the work required on the farm.

Events Giving Rise To Termination

On 10 October a crisis erupted on the farm because on that morning a large number of cows in the herd developed a condition known as bloat.  This required urgent action on the part of all staff on the farm to move them to other pasture and to treat them.  The applicant, his wife, Bryce Lothian and the two farm labourers were involved in this emergency.  Around mid-day Bryce Lothian left, as had been his practice for the previous few weeks.  This came to the attention of his mother who, being concerned at the need for additional labour in view of the events of that day, contacted him to ask him to return to the farm.  He refused.  Mrs Connally then contacted her former husband on his mobile phone in Melbourne.  She gave evidence that she told him that Bryce had refused to continue working, that she and the applicant were exhausted, that there had been a crisis with bloat on the property and requested her former husband to get Bryce back to work.  She also said he should be sacked.

In the course of the conversation the issue of the relationship between Mrs Connally and her children was raised by Mr Lothian.  Mrs Connally claimed that he told her that four of the five children did not wish to have anything to do with her and the fifth might be in that position soon too.  Mr Lothian denies this and claims that the course of the conversation involved Mrs Connally suggesting that Bryce Lothian should be sacked and that he should not be allowed to come back on the property.  In response to this Mr Lothian claims that he told his former wife that she was only alienating him and that she has already alienated four of the family members. 

Mrs Connally gave evidence that she got very upset in this phone conversation and said she was crying.  Mr Lothian said that she sounded angry, he did not believe she was crying but she could have been upset.  Mrs Connally denied saying that Bryce was not to return to the property.

After the phone call Mrs Connally contacted another son, Brett, to find out if, as she had been told by her former husband, he wished to have nothing further to do with her.  That conversation was very emotional and he did confirm that to her.  Brett claimed that his mother told him that she and the applicant were quitting but she denied this.

After the phone conversations Mrs Connally proceeded to write down a facsimile.  She quickly showed it to the applicant, who glanced at it and made no comment.  She gave evidence that regardless of what he would have said she would have sent the facsimile in any event.  The facsimile was on the farm letterhead and reads as follows:

“Colin and I are both to (sic) ill to work we will be at home in the house and not working until further notice.  There is no-one to milk the cows or feed the calves or do anything.  We are too sick.  If you don’t like it sack us.”

After the facsimile was sent the applicant, who had earlier sent one of the farm labourers, Mr Andrew Bell, to do some work on the tractor on the farm, went to see Bell again and told him that he would not be milking the cows that evening.  Bell then arranged to milk the cows.  Later that night the applicant remembered that he was feeling funny about some calves that had not been fed.  He went down to the shed and fed them.  Also he advised another of Mrs Connally’s sons, Travis, to contact Bryce Lothian and tell him to check the cows that evening for bloat.  The applicant did no other work on the farm that day.

Bryce Lothian was contacted by his father after the phone conversation between Mrs Connally and his father.  At that stage he was at his girlfriend’s house and his father advised him immediately to attend at the farm to ensure that the cows were milked and everything was under control given the contents of the facsimile.  Bryce Lothian did do that and found that the cows were being milked by the two farm labourers.  He also gave evidence that that evening he checked the cows on an hourly basis for bloat, with Travis.  Bryce milked the cows the next morning with one of the labourers.

At 8:59am the next morning the applicant and his wife received the following facsimile from Mr Norman Lothian:

“It is with regret that I received your fax dated 10th October, 1994.

I am very sorry the situation has reached this point.  You leave me no option but to terminate both your employment from Malifind Pty. Ltd. as of the 10th October, 1994.

Your salary and holiday pay will be forwarded to you immediately.  We wish to advise that as of the 11th October, 1994, Mr. Bryce Lothian will take over all responsibilities as Farm Manager.”

Contested Evidence

There are three areas where the evidence is a subject of some contest.  The first of these was the precise role that Bryce Lothian played in the weeks leading up to 10 October 1994.  The applicant and his wife gave evidence that he was basically putting in an appearance over that period, working at most about two hours per day.  Mrs Connally said that although she knew that he had been ill he gave her the impression that he was fit.  Bryce Lothian gave evidence that his hours were restricted due to illness.  The applicant gave evidence, which was not strongly challenged, that Bryce’s attitude to work was far from satisfactory.  I prefer the evidence of the applicant and his wife on this issue and accept that although Bryce Lothian had been ill he was not contributing extensively to the farm in the period up to 10 October .

Another area of conflict was whether the applicant and his wife had stated to anyone that they were leaving.  There was a conflict as to what the applicant said to Bell when he asked him to milk the cows on the evening of 10 October.  Bell claimed that the applicant said “I’m doing a Bryce” and when he queried it said “I’m quitting”.  The applicant denied this.  He only says that he asked Bell to milk the cows that evening.  He gave evidence that he intended to resume work on the farm the next day but was prevented doing so by reason of the facsimile of 11 October.  Brett Lothian gave evidence that his mother told him that they both were quitting.  She denied this.

The evidence of both the applicant and his wife was that the purpose of the facsimile was to bring matters to a head and to obtain further assistance on the farm.  I accept the evidence of the applicant in relation to his conversation with Bell.  He impressed as an honest witness trying to give a true picture of what was, and remains, a very messy matrimonial dispute.  I also accept the evidence of Mrs Connally that she did not indicate to her son Brett that the two of them were leaving.  I find it unnecessary to resolve the conflict of evidence as to whether Mrs Connally said to her former husband that Bryce was not to return to the farm.  Whatever was said, it was said in a fairly emotional conversation between the two parties.

The third area of contention were the consequences of the applicant ceasing work on 10 October.  I earlier referred to the duties that he in fact undertook after that time.  Bryce Lothian however gave evidence that he had to attend to the water on the farm and that no water had been ordered.  The applicant however produced water usage records which showed that the Rural Water Commission supplied water to the farm over that period.  It is clear however that some duties where required on the farm in relation to irrigation on the afternoon of 10 October and the applicant did not perform them.  Further the applicant only arranged for Bell to milk the cows on the evening of 10 October and made no arrangements for the milking on 11 October.  That milking was performed by Bryce Lothian and another of the farm labourers.

Given that the milking in fact occurred and that there is no evidence of any major adverse consequences to the farm of the actions of the applicant in the period after the sending of the facsimile I prefer to accept the applicant’s version that whatever action he took or failed to take in the period from sending the facsimile until 9:00am the next morning did not have a major consequence on the operations of the farm at that time.  Bryce and the two farm labourers were able to manage over that period.  Thus although I accept that Mr Norman Lothian, in Melbourne, was greatly concerned at the potential position of the farm when he received the facsimile the true position was that Bryce and the two farm labourers were present and available to perform all necessary duties until matters were clarified.

The Issues

The central issue in this case was whether the sending of the facsimile and the cessation of duties by the applicant constituted a repudiation of his contract or a resignation which was accepted by the respondent in the second facsimile.

The surrounding circumstances of the sending of the facsimile are important.  I accept the version of the applicant that in the period prior to 10 October the farm was very busy and that by that date both he and his wife were exhausted.  That they would be exhausted is not surprising given the uncontested evidence that Bryce Lothian, effectively part of the establishment of the farm, was at best only working two hours per day.  Further the applicant gave evidence, which I accept, that since July Bryce Lothian had been responsible for making decisions relating to farm labour in conjunction with Mr Norman Lothian.  No additional labour was provided to compensate for his reduced hours in what was a very busy period.

I also accept the evidence that Mrs Connally had raised on a number of occasions with her former husband the fact that Bryce Lothian was not pulling his weight.  Mr Norman Lothian confirmed this in his evidence when he said that he had, in response to calls from his former wife, instructed his son to obey those instructions to keep the peace.

This is important given that Bryce Lothian, on his own evidence, on 10 October refused to return to the farm when requested by his mother.  He did however return when instructed by his father to do so after his father received the facsimile on that day.

A further consideration is that the applicant was entitled to three days off per fortnight but because of the calving season and the absence of Bryce Lothian had been unable to have a single day off in six weeks.  Indeed the evidence showed that arrangements were made that he was to be paid for these extra duties.

Mrs Connally’s role in relation to the farm is also an important consideration.  The farm letterhead reads “Norlynvale Holsteins - Norm & Lynette Lothian and Family”.  Mrs Connally gave evidence that she believed that she was a director and shareholder of the respondent.  Mr Norman Lothian denied this and said that she had never been.  Mrs Connally’s evidence that she took part in building up the farm was not contested and no doubt the extent of that contribution will be determined in the Family Court proceedings.  She gave evidence however that she believed that she owned the farm in partnership with her ex-husband and “I didn’t think you could be sacked from something you owned”.  Whatever the strict legal position I accept her evidence that this was what she genuinely believed at the time.

Her evidence in relation to the sending of the facsimile was that “It was anger, and upset”.  She also stated that “I considered I owned the place too so I considered I was everyone’s boss”.  She therefore regarded herself as being Bryce Lothian’s boss.  Mr Norman Lothian’s evidence was that the management of the farm was left with his former wife and Mr Connally.

The emotional overlay prior to 10 October is important. The evidence made it clear that the situation on the farm had been tense. Bryce Lothian was being unco‑operative, and the applicant was allowing Mrs Connally to give Bryce orders because of the awkwardness of his position.  Mr Norman Lothian had never spoken to the applicant. On 10 October the matter reached flashpoint with the references in the conversation between Mrs Connally and Mr Norman Lothian to the children of their marriage. She got angry and upset and sent the facsimile.  Mr Norman Lothian, I find, must have known that any actions which were taken by her on that day were taken in the heat of the moment and may have required clarification later.

He chose however to send the facsimile of 11 October purporting to accept the resignation of both the applicant and Mrs Connally. Whether he was entitled to do so is a matter to which it is now necessary to turn.

Was This A Termination Of Employment At The Initiative Of The Employer?

Division 3 of Part VIA of the Act applies only to a termination of employment at the initiative of the employer. The respondent argued that here the actions of the applicant were the operative cause in the termination of employment. It was argued that there was an offer to resign which was accepted by the respondent and that was the end of it. The applicant however argued that the operative cause of the termination here was the sending of the facsimile purporting to terminate the employment on 11 October.

The applicant argued that the ambiguity of the applicant’s actions on 10 October after the sending of the facsimile, combined with the inconclusive nature of the facsimile itself, were such that it could not be said that the applicant had terminated the contract. The applicant also argued that the emotional state of Mrs Connally and the applicant at the time of sending the facsimile was relevant and imposed an obligation on the respondent to clarify the position before it purported to accept the resignation as conveyed by the facsimile.

Support for an obligation to clarify an ambiguous resignation is contained in a number of cases. In Barclay -v- City of Glasgow District Council [1983] IRLR 313 at 314 the following appears:

“On the other hand we do not consider that in the circumstances of this case the matter rests there.  It is true that if unequivocal words of resignation are used by an employee in the normal case the employer is entitled immediately to accept the resignation and act accordingly. This has been authoritatively decided by the Court of Appeal in Southern -v- Franks Charlesly & Co [1981] IRLR 278 to which we were referred.  It is clear however from observations made in that case that there may be exceptions.  These include cases of an immature employee, or a decision taken in the heat of the moment, or of an employee being jostled into a decision by employers ...; they also apply to cases where idle words are used under emotional stress which employers knew or ought to have known were not meant to be taken seriously ... .  There is therefore a duty on employers, in our view, in an appropriate case to take into account the special circumstances of an employee.”

Although the case concerned an employee with an intellectual impairment the comments are of general application.

This decision is supported by an earlier decision Hughes -v- Gwynedd Health Authority [1978] ICR 161 at 164 where it was held that the principle that a notice of dismissal by an employer should be specific was also held to apply to a notice of resignation by an employee.

Similarly in J. & J. Stearn -v- Simpson [1983] IRLR 52 the headnote reads:

“In order to decide whether or not there has been a dismissal, the proper approach is to construe the words in the context of the facts of the case.  It is only if there is ambiguity after looking at the words in their context that a further test of whether any reasonable employer or employee might have understood the words to be tantamount to dismissal or resignation must be applied.”

When the facsimile of 10 October is considered it is clear that it is, at its highest, ambiguous.  First it was not written by the applicant but by his wife.  Next there is a statement in it that the applicant was too sick to work and would not be working until further notice.  Although neither of them had been to a doctor they were indicating a temporary incapacity to work.  In terms of a resignation, there is no specificity.  The impression to be gained is that there will be further communication from the applicant to the respondent.  It has all the hallmarks of a temporary position or a negotiating gambit.  When the surrounding facts and emotional overlay are included then on any view the respondent had a duty to clarify the matter before proceeding to accept the resignation.

A similar principle applies in relation to the respondent’s argument that the actions of the applicant constituted a repudiation of the contract.  In Smythe & Co. -v- Bailey & Co. [1940] 3 All ER 60 at 71 it was said:

“The case for a repudiation by the appellant is, I think, quite unsubstantial.  It must not be forgotten that repudiation of a contract is a serious matter, not to be lightly found or inferred.  I cannot do better than quote the words of Lord Selbourne in Mersey & Iron Co. ‑v‑ Naylor, Benzon & Co., at 438, where he says that you must look at the:

‘actual circumstances of the case in order to see whether the one party to the contract is relieved from its future performance by the conduct of the other;  you must examine what that conduct is, so as to see whether it amounts to a renunciation, to an absolute refusal to perform the contract, such as would amount to a rescission if he had the power to rescind, and whether the other may accept it as a reason for not performing his part ... .’”

In Grout -v- Gunnedah Shire Council (1994) 125 ALR 355 Moore J. applied this principle in a case which involved the giving of an unreasonably short notice of resignation by an employee who was in a state of severe depression at the time.

At 370 Moore J. said:

“While I do not conclude that the applicant behaved entirely irrationally or his actions were not intended, his emotional state is relevant, in my opinion, in ascertaining what he intended and how his conduct should have been viewed in the circumstances by those representing the respondent.  Some allowance has to be made for the fact that the applicant appears to have been acting, to some extent, in a state of despair and was not in a state of emotional equilibrium, however composed he might have been at any particular time.”

He found that in those circumstances there has not been an absolute refusal to perform the contract and that the letter of resignation was conditional.  The Court held that his notice of resignation and his conduct thereafter did not amount to a repudiation of his contract of employment.

Here, given that the applicant’s wife was, to the knowledge of the respondent, in an emotional state this is a factor which should have been considered by the respondent before it purported to act on the facsimile.  The document itself refers to their physical states and that is a further factor which on the authorities I have referred to required consideration.

In determining whether the actions of the respondent constituted termination at the initiative of the employer other comments of Moore J. are relevant.

At 372, having considered two earlier decisions of the Court, the learned judge said that the decision as to whether there has been a termination within the terms of Division 3 is as follows:

“On the approach of Wilcox C.J. it is necessary to ask whether the employer terminated the employment relationship, and on the approach of Gray J. it is necessary to ask whether the employer has done some act terminating or purporting to terminate the employment.  On either approach the answer is, in my opinion, the same in this matter and it is unnecessary for me to express a preference between the two approaches.

A principal purpose, if not the sole purpose, of Div. 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment.  An employee may do some act which is the first in a chain of events that leads to termination.  An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee.  However, that situation and the present are not situations where the termination was at the initiative of the employee.  In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.”

These comments provide support for the argument of the applicant that the steps which effectively terminated the employment were those taken by the respondent in sending, without any prior discussion or clarification, the facsimile of 11 October.

The respondent argued that the actions of the aplicant constituted grounds for summary dismissal and relied on Hall -v -General Motors Holdens Ltd (1979) 45 FLR 272. I reject the proposition that any refusal to perform duties by the applicant went to the essence of his contract particularly given the failure of Bryce to pull his weight and the minimal nature of the disruption to the farm. I have also had regard to the evidence of the applicant and his wife that they were exhausted. Failure or refusal to perform duties in those circumstances could not constitute a repudiation of the contract.

In this matter the operative act which terminated the employment was not the sending of the facsimile by Mr Connally on 10 October.  Rather I find that it was the facsimile by the respondent on 11 October.  It follows from this that the Court has jurisdiction to deal with the application.

Was There A Breach Of Section 170DC?

The applicant argued that he had been denied the opportunity to respond to any allegations against him before he was terminated. The respondent argued that the actions of the applicant were such as to allow the respondent to summarily terminate him without putting the allegations to him. I have earlier characterised the applicant’s actions as not constituting an intention to no longer be bound by the terms of the contract. Although the facsimile was sent it did not say that he was absolutely refusing to do any further duties and his actions after that are consistent with that. It follows from this that the respondent cannot rely on the applicant’s actions to relieve it of its obligations under section 170DC of the Act. It is clear that the respondent did not put any matters to the applicant before it terminated him. It follows that I find the respondent has breached section 170DC of the Act.

Did The Respondent Have A Valid Reason To Terminate The Applicant’s Employment?

The respondent further argued that it had a valid reason to terminate the applicant’s employment under section 170DE(1) of the Act on the basis of the facsimile and his conduct. Here the respondent’s reason cannot be valid given the circumstances of the sending of the facsimile and the surrounding facts. I have earlier referred to the state of the farm on that date and the fact that there was insufficient labour available due to the actions of Mr Bryce Lothian. Further the respondent was aware of the emotional condition of Mrs Connally at the time of the sending of the facsimile. I have earlier indicated that the facsimile itself is ambiguous and does refer to the likelihood of a further communication from the applicant. The respondent chose not to investigate any of these matters but to proceed to terminate by the facsimile of 11 October. Even accepting that the applicant neglected to do some farm duties on the afternoon of 10 October and did not milk the cows on 11 October, his actions would not constitute a valid reason for the respondent to terminate his services given the wider factual circumstances I have referred to. I therefore find that the respondent has failed to discharge its onus under section 170DE(1). Having made this finding it is unnecessary for me to consider whether the termination was harsh, unjust or unreasonable under section 170DE(2) of the Act.

Remedy

The applicant did not seek reinstatement however the recent decision of the Full Court in Liddell -v- Cheryl Lembke t/as Cheryls Unisex Salon (Industrial Relations Court of Australia, unreported, Wilcox C.J., Keely and Gray JJ., 3 November 1994) makes it clear that reinstatement is the primary remedy of the court.  I am satisfied that reinstatement is not practicable in this case.  The applicant has not sought reinstatement and that is a factor which is relevant.  Bryce Lothian remains employed on the farm.  In addition the Family Court proceedings remain unresolved.  Having regard to those proceedings and the overall background to the matter in my view it is impracticable to reinstate the applicant to his position.

The question of compensation is not without its complications.  In Nicolson ‑v‑ Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 Wilcox C.J. at 246 said that in:

“assessing compensation for a breach of s.170DC, it is appropriate to consider what would have been likely to occur if that breach had not occurred.”

In considering what would have occurred had the facsimile of 11 October 1994 not been sent I must consider the fact that the Family Court proceedings were on foot.  These proceedings may have required the applicant and Mrs Connally to leave the farm property in the event that their occupation of the property was the subject of an agreement in the Family Court proceedings.  The Family Court proceedings were originally listed in November and are apparently now listed in March 1995.

I am satisfied that there was a risk that the employment would have terminated in a lawful manner by reason of the resolution of the Family Court proceedings.  Such a termination would have required an appropriate period of notice.  As matters have occurred however those proceedings remain unresolved and the only matter which has occurred is that Mrs Connally has been reinstated to her position as an employee of the respondent although she is apparently not performing any duties.

I have also had to consider whether there was any risk that the employment would have been terminated in a lawful manner had the termination not occurred on 11 October 1994.  I am satisfied that it is unlikely that the employment would have terminated in a lawful manner for reasons relating to the applicant’s performance.

The applicant gave evidence that he has been searching for employment in the papers and also doing some relief milking.  He was challenged in his evidence that he had placed too severe a restriction on his availability for employment but I accept that he was making reasonable efforts to obtain employment as a farm manager.  He was being paid $600.00 per week and provided with free accommodation at the time of his termination.  He had given up a secure employment to accept the position with the respondent however there is an argument that the nature of his relationship to the respondent changed upon his marriage to Mrs Connally.  Having regard to all these matters assessing an amount of compensation is not without its difficulties.  The applicant has been denied a procedural and substantive fairness in the termination of his employment from what was originally a secure position.  The position however was likely to terminate upon a resolution of the Family Court proceedings.  He has suffered a significant loss of income in the period from 11 October 1994 to date.  He has made reasonable efforts to mitigate his loss.

In the circumstances $8,000.00 is a proper amount of compensation and I propose to make such an order.

Order Of The Court

1. That the respondent pay to the applicant the sum of $8,000.00 within 21 days of this date.

I certify that this and the preceding sixteen (16) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:

Dated:  1 March 1995

Solicitors for the Applicant: Counsel for the Applicant:	Messrs Farram Ritchie and Davis Mr P. Harris
Solicitor for the Respondent: Counsel for the Respondent:	Messrs Grace Warren Hale Mr B. Lacy
Dates of hearing:	31 January 1995 & 1 February 1995
Date of Judgment:	1 March 1995

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - applicant’s wife sends facsimile stating that not working until further notice - facsimile sent in emotional circumstances - employer purports to accept resignation - whether resignation - whether repudiation - duty to clarify ambiguous notice of resignation - whether termination of initiative of employer - whether valid reason to terminate - compensation.

Industrial Relations Act 1988, s.170DC, s.170DE and s.170EE.

Barclay -v- City of Glasgow District Council [1983] IRLR 313

Hughes -v- Gwynedd Health Authority [1978] ICR 161

J. & J. Stearn -v- Simpson [1983] IRLR 52

Smythe & Co. -v- Bailey & Co. [1940] 3 All ER 60

Grout -v- Gunnedah Shire Council (1994) 125 ALR 355

Liddell -v- Cheryl Lembke t/as Cheryls Unisex Salon (Industrial Relations Court of Australia, unreported, Wilcox C.J., Keely and Gray JJ., 3 November 1994)

Nicolson ‑v‑ Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233

Hall -v- General Motors Holdens Ltd (1979) 45 FLR 272

COLIN MATTHEW CONNALLY -v- MALIFIND PTY LTD

NO. VI 1919 of 1994

Before:     MURPHY JR

Place:       MELBOURNE

Date:        1 MARCH 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1919 of 1994

BETWEEN:

COLIN MATTHEW CONNALLY
Applicant

AND

MALIFIND PTY LTD
Respondent

MINUTES OF ORDER

1 March 1995  Judicial Registrar Murphy

THE COURT ORDERS THAT:

1. That the respondent pay to the applicant the sum of $8,000.00 within 21 days of this date.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.