Cray v Gromotka

[1996] IRCA 293

DECISION NO:  293/96 

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination at the initiative of the employer - whether termination for VALID REASON  of CONDUCT AND PERFORMANCE - COMPENSATION

Industrial Relations Act 1988, ss 170EA, 170DE(1), 170EE(3)

Mohazabv Dick Smith Electronics Pty Ltd (1995) 62 IR 200

JULIE ANNE CRAY v ANDREW PETER GROMOTKA
VI 5334 of 1995

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  24 JUNE 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

B E T W E E N:

Julie-Anne CRAY
Applicant

A N D

Andrew Peter GROMOTKA
Respondent

MINUTES OF ORDER

24 June 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. The title of the proceeding be amended to reflect accurately the
              name of the respondent as Mr Andrew  Peter Gromotka.

1. Within twenty one days of the date of this order the respondent pay to the applicant the sum of $1626.00 in compensation pursuant to s170EE(3) of the Industrial Relations Act 1988.

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
VICTORIA DISTRICT REGISTRY

B E T W E E N:

Julie-Anne CRAY
Applicant

A N D

Andrew Peter GROMOTKA
Respondent

REASONS FOR DECISION

24 June 1996        PARKINSON JR

This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as a second year apprentice chef after having completed an eight week TAFE training course, which involved practical experience in addition to theoretical training. The applicant was employed on 6 September 1995 and her employment terminated on 5 October 1995.

The respondent conducts a restaurant business known as Syd’s Cafe and Bar, and whilst there is no evidence in the proceedings as to whether that is a registered or unregistered business name, the evidence of Mr Gromotka was that he was the owner and proprietor of the business at which the applicant was located. His evidence was that he was the employer, and this is consistent with the notice of appearance filed by him in the proceedings wherein he identifies himself personally as the employer. The title of the proceedings should be amended to accurately identify the respondent as being Mr Andrew Peter Gromotka, and pursuant to Order 13 Rule 2 and Order 42 Rule 12 I will so order that the name of the respondent be amended. It should be noted that neither counsel raised this issue or dealt with it in the proceedings.

The respondent contended that there was no termination of employment by the employer, but a resignation by the applicant. I take this to be a submission that there was no termination of employment at the initiative of the employer, being the type of termination of employment contemplated by s170EA of the Industrial Relations Act 1988.

The applicant conceded that she did resign, however she contends that the circumstances of the employment and particular events at or around the time of the resignation constituted the termination of the employment as a termination of employment at the initiative of the employer.

It is appropriate here to set out an extract from Mohazabv Dick Smith Electronics Pty Ltd (1995) 62 IR 200 which considers the nature of the termination which is contemplated in s170EA. As will be seen from the extract, the fact of a resignation does not of itself preclude the jurisdiction of this court pursuant to s170EA of the Act. The critical issue is whether or not the termination of employment occurred at the initiative of the employer. The Full Court stated at p. 203:

Section 170CA provides that the object of Div 3 of Pt VIA is to give effect to the Convention concerning Termination of Employment at the Initiative of the Employer and the Recommendation concerning Termination of Employment at the Initiative of the Employer which are Schs 10 and 11 of the Act respectively.  Section 170CB provides that an expression has the same meaning in the Division as it has in the Convention.  The terms "termination" and "termination of employment" are defined in the Convention as meaning "termination at the initiative of the employer".  Accordingly the terms "termination" and "termination of employment" in the Act have the same meaning.  The Convention does not, however, define the expression "at the initiative of the employer" and its meaning in the Convention must be gleaned from the Convention as a whole.  This expression does not appear in the Act and is imported into the Act by s170CB.

It is distracting, in our opinion, to treat the question posed in the present case to be whether the applicant resigned or had his employment terminated by the respondent.  A question framed in those or similar terms assumes that a resignation is not or could not be a termination at the initiative of the employer.  The present task is to construe the expression "termination at the initiative of the employer" as it appears in the Convention and determine whether there has been such a termination in relation to the employment of the applicant.

The Court continued at 207:

It is necessary for present purposes to concentrate on the expression "termination at the initiative of the employer", as that expression is central to the operation of Div 3 of Pt VIA of the Act.  Accordingly it cannot be assumed that decisions concerning other legislative formulations or cases concerning constructive dismissal are to be applied without qualification when considering the provisions of Div 3.  However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.  A recent example of such a case is in Alison v Bega Valley Council, (unreported, Industrial Relations Commission of NSW, 1 September 1995). A Full Bench of that Tribunal dealt with an appeal against a finding of a Commissioner that there had been no termination by an employer in like circumstances.

The evidence of the applicant was that she was unhappy with the conduct of various of the respondent’s employees. In particular she was offended by the manner in which the chef, Mr Scott, spoke to her in the course of the employment, and also with the nature of some comments which he made and directed to her personally. Her evidence was also that there were incidents where she had been hurt as a result of deliberate conduct on the part of the third year apprentice, Mr Farrell, and that she had been required to perform lifting tasks that were excessive.  Her evidence was that she was treated in this manner because she was female, and that as a consequence of her sex she was treated differently to the other apprentice chef. 

Mr Scott was the person responsible for selecting the applicant for employment, and he employed her as a second year apprentice in circumstances where he was equally entitled to employ her as a first year apprentice. His evidence was that he did this to provide incentive for a greater effort and work performance. It is apparent that the trade chosen by the applicant is a difficult and demanding one, particularly physically, involving often heavy work, handling of hot products and long and generally unsocial working hours.  Mr Scott was at pains in his evidence to emphasise this and the fact that he had raised these matters with the applicant at the employment interview. I accept that this was so.

I am satisfied that within the limitations which inevitably apply to a person who has little experience in an industry, the applicant was performing her duties at a level which was acceptable, and that there was no complaint as to the applicant’s capacity to perform her duties at a level which could reasonably be expected of her.  There is no doubt on the evidence in the proceedings that there was inappropriate conduct on the part of Mr Scott and the third year apprentice, Mr Farrell. That conduct was directed to the applicant, and aspects of that conduct in my view suggest that the applicant was treated differently in the course of the employment because she was female.  Some of that conduct may well have been inadvertent on the part of Mr Scott, he having worked previously and recently with Ms Megan Gray, with whom he shared a longstanding working relationship and an understanding as to acceptable bounds of conduct and humour in the workplace. Verbal jousting such as “if you’d tried harder in the womb you could have been a boy” was apparently a regular occurrence between them, to which no offence was taken and none meant.

However, no account was taken of the fact that no such relationship had developed with the applicant, and the result was that the former understandings were imposed upon her.  The applicant was offended by some aspects of the humour which had developed and no regard was paid by Mr Scott to the possibility that she may find such comments offensive. In addition, I accept the applicant’s evidence that she was frequently denigrated for being “a girl” by both Mr Scott and Mr Farrell, and that this type of remark was made in circumstances where a minor mistake had been made by her in the course of the performance of her duties.

There was one incident wherein the applicant complains that she was sworn at by Mr Scott. This incident in my view was isolated, and was an incident born of frustration in the heat of the moment. Mr Scott later apologised for this language and I am satisfied that this incident is of little significance in these proceedings.

There are some further aspects of  conduct complained of by the applicant which, whether usual, or part of the process of “toughening up” new apprentices or not, is beyond the bounds of acceptable workplace conduct. The applicant, despite being employed as a second year apprentice, had limited workplace experience.  The evidence of the applicant was that on a number of occasions hot bread would be removed from the oven and she would be called upon by Mr Farrell to “catch” the bread as it was brought from the oven. She complained in the proceedings of being burnt on the hands on one occasion as a result.  She gave a further example of being handed a stainless steel implement by Mr Farrell which, unknown to her, was hot, having just been taken from the dishwasher. She complains also of being by hurt on such an occasion. I accept this evidence. It is not denied that such incidents occurred, although the context of the incident is disputed.  The applicant contends that the conduct was deliberate. The respondent’s witnesses gave evidence that such incidents were merely part of the necessary process of getting used to handling hot items in a busy commercial kitchen. This might be a necessary process, but in the circumstances of the employment of the applicant for a period of less than four weeks, the manner of “toughening” does not suggest a practical regime of training designed to that end, but rather a process of survival by ordeal.

The applicant spoke directly to the owner of the business, Mr Gromotka, on 4 October 1995 in relation to her concerns. This was the applicant’s rostered day off.  In the course of this conversation she raised three matters. Firstly, that whilst  she was clearly prepared to taste all types of foods, she was unhappy with being required to eat staff meals which contained meat products, being a vegetarian. She was told she was not required to so. Secondly, she said that she felt she was being unfairly burdened with the dishwashing obligations in the kitchen and that this was interfering with her training. To this Mr Gromotka fairly responded that this was an inevitable part of the work, and as it was a busy time she must be patient. Thirdly, she complained of the sexist comments and behaviour directed to her by the other employees in the kitchen, which offended her. To this Mr Gromotka responded that she should speak to Mr Scott and that if that did not work, further action would be taken by way of a “three step plan” which Mr Gromotka proposed.

I am conscious in this proceeding that in addition to the evidence as to the unacceptable conduct complained of, there was a personality clash between the applicant and the other employees, which I am satisfied to some extent contributed to the breakdown in relations between them. However, I am not satisfied that that clash of personalities was at the heart of the reason for the applicant leaving the workplace on 5 October 1995. I shall consider this aspect further in relation to remedy. 

Mr Gromotka’s evidence was that he was conscious of the supervisory role played by Mr Scott and was concerned to approach the matter in a manner which did not create difficulty in that regard for the applicant. He raised the issue with Mr Scott and indicated that any sexist remarks must cease. 

The applicant returned to the workplace on 5 October 1995 to be confronted by Mr Scott, who complained of her going over his head to the owner.  She was then told, on her version, that “she had to put up with it or leave”, or, on Mr Scott’s version, “that she had to decide whether or not she wanted to remain and that he needed her to be committed”. In the circumstances, the nature of the conversation was such that, on either version, the implication was the same. The applicant understood that she was to accept the conduct complained of or leave. No other options were available to her.  I should indicate, however, that I prefer the evidence of the applicant as to the detail of the conversation which occurred. I prefer the evidence of the applicant to that of Mr Scott generally in these proceedings, as there were instances of inconsistency between his evidence and that of Ms Gray as to the common use of various terms in the workplace. In particular, I am referring to the derogatory use of the term “girl” or “ you are just a girl”.

The evidence in the proceedings was also that the applicant clearly understood as a result of the conversation with Mr Gromotka that if it came to a choice between her and the chef Mr Scott, it would be she who would have to go.  The respondent’s evidence confirmed that whilst he did not concede that he had said this to the applicant, nevertheless it represented the reality of the position. 

Despite my finding that there was an aspect of personality clash in this workplace between the applicant and the other employees, nevertheless the circumstances and the incidents referred to above are such that the applicant was faced with unacceptable treatment in the workplace. The initial attempts by the respondent to deal with the issue resulted in the applicant being exposed to a confrontation with her direct supervisor.  The resultant resignation is understandable in that context.

The conduct which led to or initiated the termination of the employment was that which occurred in the kitchen, directed at the applicant by other employees of the respondent.  The respondent, upon being informed of the resignation, took no steps to inquire as to the circumstances, or to clarify the situation with the applicant, notwithstanding that the resignation occurred within hours of her recommencing work after the initial complaint was made to the respondent about the conduct of other employees.  The fact that the applicant did not request the respondent to implement the next phase of the “three step plan”, but rather resigned in distress is not in my view an indication that she had resigned or left the employment by choice in the sense contemplated in the Full Court’s decision in Mohazab (supra).

Termination at the initiative of the employer apparently extends to circumstances beyond that contemplated by the common law concepts applicable to concepts such as constructive dismissal.  The fact that the conduct complained of by the applicant was not conduct of the individual employer, Mr Gromotka, but of other of his employees is not the issue in these proceedings.  This is not a case where the employer was unaware of the difficulties which existed, but rather the complaint which was made had no result for the applicant but to cause her more distress, the outcome of which was her resignation.  I am satisfied that the conduct complained of was serious enough to cause the applicant distress at the thought of it continuing.

I am satisfied that the termination of the employment was a termination at the initiative of the employer. 

I am not satisfied that the termination of the employment of the applicant was for valid reason. No aspect of the applicant’s performance or conduct were relied upon as founding a basis for terminating the employment. Nor was any issue raised as to the operational requirements of the business. Consequently the respondent has failed to comply with S170DE(1) of the Act.

I turn now to consider the issue of remedy in this matter.

The applicant does not seek reinstatement. She is of the view that it would not be possible for her to work in the confined environment of the kitchen, under the supervision of Mr Scott. I am also satisfied on the basis of the evidence of the applicant, Mr Scott and Ms Gray, that there were aspects of the work which were inherent to the industry, such as tedious tasks and heavy lifting, which also affected the applicant’s enjoyment of the work and, in my view, were likely to impact upon the length of her employment.  The applicant is seeking a remedy in compensation for the amount of lost wages between the date of the termination of employment to the date of the hearing. It was submitted that the sum is $8,000.00.  The applicant has been unable to find alternative employment in the interim period, save for some casual work.

I am not satisfied that the applicant would have remained in the employment for a significant period of time even if the conduct complained of had ceased. I accept that an order for reinstatement would be impracticable in the circumstances. It is difficult to assess the likely length of the employment in view of the limited time in which the applicant was employed. In the circumstances, I have decided that the employment did not have a reasonable likelihood of continuing for longer than a matter of months. Having regard to this and the length of the employment, I have decided that an appropriate amount of compensation would be an amount equivalent to six weeks pay.  That amount takes into account an appropriate period of notice.

The order of the court will be:

1. That the title of the proceeding be amended to reflect accurately the
              name of the respondent as Mr Andrew  Peter Gromotka.

1. That within twenty one days of the date of this order the respondent pay to the applicant the sum of $1626.00 in compensation pursuant to s170EE(3) of the Industrial Relations Act 1988.

I certify that this and the preceding ten (10) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:    24 June 1996

APPEARANCES

Solicitors for the applicant:  McDonald & Charman
Solicitor appearing for the applicant:                  Mr A McDonald

Solicitor appearing for the respondent:               Mr H A Cottee

Date of hearing:  20 May 1996