Corrine Reine v Peter Rumpe t/as Peter R Motors

[1995] IRCA 643

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Claim of UNLAWFUL TERMINATION - SUMMARY DISMISSAL - CONSTRUCTIVE DISMISSAL - PROCEDURAL FAIRNESS

Industrial Relations Act 1988 (Cth), s 170DC

Matter No. NI95/2025R

Corrine REINE      v       Peter RUMPE t/as Peter R Motors
Applicant  Respondent

CORAM:      MADGWICK J
PLACE:         SYDNEY
DATE:           WEDNESDAY, 1 NOVEMBER 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY

No. NI95/2025R

BETWEEN  Corrine REINE

Applicant

AND  Peter RUMPE
t/as Peter R Motors
Respondent

CORAM:      MADGWICK J
PLACE:         SYDNEY
DATE:           1 November 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The respondent pay the applicant the sum of $2,350.00 being $250.00 for underpayment of wages and $2100.00 for general compensation including holiday pay.

1. The respondent has 28 days to pay.

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

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES
DISTRICT REGISTRY

No. NI95/2025R

BETWEEN  Corrine REINE

Applicant

AND  Peter RUMPE
t/as Peter R Motors
Respondent

CORAM:      MADGWICK J
PLACE:         SYDNEY
DATE:           WEDNESDAY, 1 NOVEMBER 1995

REASONS FOR JUDGMENT

MADGWICK J:       This is an application for review of a decision made by Judicial Registrar Tomlinson. 

The learned Registrar found, after a very short case in which the parties represented themselves, that the respondent to the appeal, Ms Reine, whom I shall call the worker, had her employment summarily terminated on 26 April this year, that she was not accorded procedural fairness, and that she was not given the opportunity to improve her job performance. Consequently, her employment had been unlawfully terminated in that section 170DC of the Industrial Relations Act 1988 (“the Act”) was not complied with, and the Judicial Registrar awarded the worker $5000 by way of compensation.

The matter has been agitated in some greater detail before me today.  The worker again appeared for herself.  Mr Rumpe, the employer as I will call him, was represented by his solicitor.  The court has been assisted also by hearing the evidence of the third person who worked at the workplace, a small car yard at St Peters.  This man, Mr Polatis, was qualified as a motor mechanic and had been taken on by the employer as a general hand, a yardman or some such thing several months before the worker.  He too was employed as a result of the JobStart scheme of subsidy to employers administered by the Commonwealth Employment Service.

Ms Reine is a person of some education, who has previously held white-collar employment and who for some months was employed as a mathematics teacher in a high school.  She is a graduate in Arts, majoring in mathematics.  It is a very sorry thing that, until this employment began, save for a temporary period of employment for two weeks, she had been out of work since 1991.  It may be assumed that she was very keen to find work.  The work that she believed that she was applying for was that of a person to help a car yard "in its daily operations".  She was told by a job advertisement that some clerical work was required, also some car washing.  The job also was said to require good English, a driver’s licence, and a willingness to work.  Clerical duties were indicated to mean answering the telephone, taking messages and “paperwork”, whatever that might mean.  One might have called it a Person Friday's job for a small concern. 

Ms Reine was interviewed and thought by Mr Rumpe to be to the best person available for the work.  She commenced employment on 25 March of this year.

Mr Rumpe had a second-hand car yard on the Princes Highway at St Peters abutting Sydney Park, next to the well known brickworks there.  He had 35 to 45 cars.  The car yard was about as unprepossessing as most small car yards are.  The place was not landscaped.  It was given over to cars.  The ground was paved, most of it, or left as gravel.  It was unpleasant.  The significance of this is that Mr Rumpe kept at the premises an Alsatian dog, with a view to deterring unauthorised entrants outside trading hours.  The dog seems to have been more interested in being friendly to human beings than terrorising them.  Ms Reine felt sorry for the dog in that environment and took it upon herself to take the dog for walks in the park.  This irritated Mr Rumpe, because he had some theory that, despite the dog's friendly nature, this was further reducing his use as a security tool. 

It irritated Ms Reine's co-worker, Mr Polatis, who, although paid the same as her, really knew a great deal more about cars because of his mechanic's training.  He had been there longer, was in charge of the yard when Mr Rumpe was not there, which was reasonably often, and was put in a position of de facto supervisor of Ms Reine, as the more senior person of the two of them.  Mr Polatis was irritated by Ms Reine’s absences for various periods while walking the dog.  He felt that this increased the workload on him of getting the cars out in the morning onto the footpath and adjacent roadway. 

It was necessary that the cars be “detailed” in the sense of thoroughly cleaned and polished inside and out, at least once; that they be washed inside from time to time, but by no means every day; and that they be washed on the outside every day.  There were occasions when Ms Reine hosed the cars with some of their windows open, so that water got in the cars and needed to be cleaned out.  That was quite unacceptable.  There were occasions also when she scratched the duco of cars by dragging a plastic hose and/or the fittings that furnished the hose across the paintwork of cars.  That was also quite unacceptable.  It may have been - although I have my doubts about this - that it was actually necessary to repaint some one or more panels but, if it were, the cost of this was not very great and easily absorbed in the general overheads of the firm.

The employer has made much of this, claiming that it would have cost $2,500 to have an independently contracted panelbeater fix the damage.  As there never was any intention of any such independently contracted person doing the repairs, Ms Reine's criticism of this as a considerable exaggeration is, in my view, a valid one. 

Two of the three people who gave evidence agree that Mr Rumpe called Ms Reine “Miss Saigon” during the course of her few weeks' employment there.  She had apparently a large straw hat which she wore against the sun.  She is a person of high cheekbones, sallow skin and dark eyes and one gets the impression, looking at her, that she may be partly of Asian origin.  I think these two matters gave rise to use of the nickname.  It may or may not have been meant in a denigratory fashion, but she felt denigrated by it. 

I also accept her evidence and reject that of Mr Rumpe that on or about the second day of her employment he suggested that she might like to work in a bikini.  She thought that he was seeking, as she put it, to exploit her body by attracting customers to the yard in this fashion.  I do not know whether Mr Rumpe had that in mind.  I think that it was probably a mildly clumsy attempt, along with an invitation which he did make to her to share some cabbage rolls with him, at bonhomie and an effort to establish some kind of cheery set of working relations in the yard.

Ms Reine is a person who has various principles, for example, about the rights of animals to be properly treated, and who sticks by them.  She is not, I should say, a happy-go-lucky kind of person.  She is rather formal, and a touch prickly.   Of course, she has every right to be like this, but the stage was set for misunderstandings. 

There was certainly no warrant for her to be called Miss Saigon:  it was evident to Mr Polatis that this upset her.  One suggests to a woman that she might wear a bikini at work at one's peril of offending her and then being found to have behaved inappropriately. 

The only relevance of this history is to understand the background to what happened on 26 April.  Ms Reine's account is that Mr Rumpe behaved like a thoroughgoing boor - yelling at her; unreasonably asking her to come back to work after only a few minutes at lunch; telling her in no uncertain language that she was to finish up on Friday because her work had proven to be unsatisfactory; pushing her out of his office and waving his arms about in her presence, and dragging her out of the car so that he spilt hot tea over her, and so on.  In her favour, it is unlikely that she would invent these things. 

On the other hand, all due allowance made for Mr Polatis's likely partiality in the interests of good relations with his employer, with whom it appears he personally has good relations, and to Mr Rumpe’s self-interest in the matter, nevertheless I did not get an impression that Mr Polatis was untruthful in his account of events.  His account and Mr Rumpe’s are diametrically the opposite of Ms Reine’s.  I am not comfortably satisfied as I ought to be that her account is more likely than not to be true.  I do not disbelieve her; I just do not know what happened. 

What is clear is that Mr Rumpe spoke to her in the presence of her co-worker, Mr Polatis, who was eating his lunch.  He said to her that if her work did not improve, he would have to give her notice.  Everybody agrees that he spoke to her in some such terms.  True it is that she turned to Mr Polatis, again everybody agrees, and asked him to explain what was meant by notice.  He indicated that a week's notice would be given to her. 

I doubt that she took very much of that in.  She was a woman of mature enough years.  She had had the advantages of a good education.  Life had played her some tough hands, so that she had been out of work for a long time.  She had been called “Miss Saigon”.  She had been invited to wear a swimsuit.  Offers of personal hospitality by her new employer which she found inappropriate and unwelcome had been made to her.  She was being upbraided before her fellow employee.  She did not want to leave.  She intended to stay for several months in Mr Rumpe’s employ, as she said in her final submissions. 

Mr Rumpe was under an obligation, having regard to section 170DC, before he might have terminated her employment, to give her the opportunity to defend herself against allegations related to her conduct or performance and, by implication, to give her some sort of chance to improve her performance. She could hardly do this unless, with some clarity and definition, it was indicated precisely what the issues of concern were.


         By that time, I think that the real issues of concern were probably that she would on occasions, with or without the dog, not be where Mr Rumpe expected her to be, and that there were ongoing difficulties in the two respects I mentioned about the washing of the cars.  About a week after she had started, Mr Rumpe had spoken to an officer of the CES to say that he was not altogether happy with her performance.  A CES officer had said, as I have come to learn that CES usually do in these circumstances, “Please persevere and try to sort it out”.  I think this is probably what Mr Rumpe did.  But the facts are that he chose a very inappropriate way to upbraid her, that the matter had a history, that her personality would have been very clear to him in the terms I have indicated.  Her personal pride would have communicated itself to him to some extent. 

Without imposing either standards of formality which might be appropriate to a large-scale employer, but would be quite inappropriate to a small employer such as this, or standards of compassion and empathy beyond those of the average, modern, Australian employer, I think that things certainly should have been done very differently.  At least, quietly, on her own, in circumstances which would best maximise the maintenance of the employment relationship, Mr Rumpe should have pointed out to her precisely what he wished to be done, asked what the difficulty was that she was having about it, and tried to see if the matter could be sorted out.  As I said in the course of argument, had this been a unionised workplace, the intervention of a sensible union organiser and a sensible industrial relations manager, or one of them, would likely have sorted the matter out.  But that assistance was not at hand.

This is the second case in just a few weeks I have had, I interpolate, where things have not worked out between a long-term, unemployed person placed under the JobStart Scheme and an employer prepared, as very many employers are not, to give such people a chance.  It is a distressing thing when job placements do not work out, because one knows one is dealing with an employer who, even though naturally having an eye to the subsidy, is also to some extent a person prepared to take a chance on, and to try to assist, another human being.  I accept Mr Rumpe’s evidence that other people whom he has helped, and they include Mr Polatis, have either gone on, or show signs of going on, to bigger and better things through his help.  So I do not wish to be thought to be unbalanced in my assessment of Mr Rumpe.  Government puts much into placing a person in employment under the JobStart Scheme.  The employee has much hope and economic interest invested in the working of the relationship.  The employer also is not without economic interest in its maintenance, and is well-motivated enough to take a chance on a person whom others would see, mostly wrongly, as in the “no hoper” category.  In these circumstances, it would be well worth the while of government to spend the extra (it would not be much) to see to the provision of a skilled counsellor - an ex-union organiser, or an ex-industrial relations manager, of a practical bent, would be the sort of people I have in mind - to get on the job quickly, to try to iron out these disputes before they get out of hand.  I commend these remarks to the relevant Minister for consideration of this aspect. 

To return to the case at hand, the actions that led to Ms Reine leaving the office, leaving the car yard for some little time distressed, hurt and upset, then coming back later to work out the rest of the day, but thereafter not returning to the workplace, were those of the employer.  They were deliberate.  They were untoward, in the sense that this was intended to be her last chance, but this was not unequivocally made clear, nor was it adequately particularised for her.  Having regard to the history and her own evident vulnerability, I think that it can be said that this amounted to a termination of her employment at the initiative of the employer.

For the reasons I have indicated, I think that section 170DC was not complied with.

I also think that the step taken of dismissing her, and the way this was effected, were, in the context, harsh.  In a different context, they might not be.  I think that, had some extra time and care been taken with her, it was likely that for some period she would have improved her performance and that the question of dismissal at that time would have passed.

On the other hand, despite her interest in doing any work at all, and that particular work, I do not believe that things would have worked out for any great length of time between the employer and this worker.  The Industrial Relations Act 1988 does not mean, nor does any other law mean, that an employee has a right to continue in a job indefinitely. In small work places, it is simply a matter of human nature that, from time to time, there will be a mismatch of people who do not get on, whose personal styles are such that they irritate one another, whose habits are apt to induce disdain, and so forth. It was Mr Rumpe’s habit, for example, to drink at work. I do not get the impression that in fact he drank to drunkenness, but the worker found this unattractive and, in her own thoughts about the matter, was somewhat censorious. That is the sort of matter of personal style which can cause personal relationships to sour. As I have indicated, her own personality was perhaps in some ways an admirable one, but not an easy one. To operate a business selling cars, one needs to be affable. I think that simply in terms of her personality, Ms Reine was not going to be a suitable fellow worker for Mr Rumpe. I think that one way or the other, the two were not going to get on for any great length of time and that the employment would have terminated before the six to twelve months that Ms Reine hoped that it would last.

It has been satisfactorily enough, though somewhat skimpily, proven that there was some underpayment in view of the State award apparently operating, and that matter has been raised in the associated jurisdiction of the court.  I think that an allowance of $250 would be ample for this. 

There are questions of holiday pay, payment not made for a week worked, of payment for what should have been an appropriate period of notice and so on.  But, all in all and taking those matters into account, I think myself that an allowance of six weeks pay on account of those matters and compensation generally would be an appropriate outcome in this case.  I would therefore allow $2100.

I cannot, with respect to the learned Judicial Registrar, see the justification for compensation in the sum of about ten to twelve weeks pay.  I think that one ought to have regard, in a case like this, to the true length of time that the employment might have endured.  On the other hand, as I said in the course of argument, I think that Ms Reine's general employability has probably been reduced rather than augmented, as it ought to have been, by her experience in the employ of Mr Rumpe. 

There will be judgment for Ms Reine for $2350.  Mr Rumpe is to pay the amount within 28 days.

I certify that this and the preceding 11 pages are a true copy of the Reasons for Judgment of His Honour Justice Madgwick.

Associate:        
Dated:             

APPEARANCES

Counsel for the Applicant:        Self
Solicitor for the Respondent:     Mr B Hillman of Hillman Mura & Consultants, Solicitors
Dates of hearing:  1 November 1995