David-Jon Roy Dawn v Premier Real Estate
[1996] IRCA 12
•17 January 1996
DECISION NO: 12/96
C A T C H W O R D S
INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether TERMINATION OF EMPLOYMENT at the initiative of employer - whether extension of TIME required for filing of APPLICATION - whether applicant terminated during period of PROBATIONARY EMPLOYMENT - claim for commission in accrued JURISDICTION - COSTS claim when principal claim dismissed.
Industrial Relations Act 1988 ss. 170EA, 170EE, 347 and 418
Industrial Relations Regulations Regulation 30B
CASES:Mohazab v Dick Smith Electronics Pty Limited, (Full Court of the Industrial Relations Court of Australia, 28 November 1995).
DAVID-JON ROY DAWN - v - PREMIER REAL ESTATE
No. VI 5118 of 1995
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 17 January 1996.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5118 of 1995
B E T W E E N :
DAVID-JON ROY DAWN
Applicant
AND
PREMIER REAL ESTATE
Respondent
MINUTES OF ORDERS
Judicial Registrar Murphy 17 January 1996
THE COURT ORDERS THAT:
The application for a remedy under Division 3 of Part VIA of the Act is dismissed.
The respondent is to pay the applicant the sum of $385 within 21 days.
The respondent’s application for costs is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 95/5118 of 1995
B E T W E E N :
DAVID-JON ROY DAWN
Applicant
PREMIER REAL ESTATE
Respondent
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 17 January 1996
EX-TEMPORE REASONS FOR JUDGMENT
In these proceedings under Part VIA of the Industrial Relations Act (“the Act”) the applicant seeks a remedy arising out of the alleged termination, on 26 July 1995, of his employment on as a sales representative with the respondent. It was the applicant's case that he had been unlawfully terminated from his employment when he was forced to leave the employment he had held for some 10 days. The respondent denied that it had ever terminated the applicant's employment. It further alleged that the applicant was out of time to make his application pursuant to section 170EA(3) of the Act. The respondent also alleged that if the applicant was granted an extension of time the applicant was in any event excluded from the jurisdiction as he was on probation pursuant to Regulation 30B of the Industrial Relations Regulations (“the Regulations”).
The initial employment agreement between the parties.
The applicant is aged 31 and prior to July 1995 had experience in the real estate industry. In July 1995 he had just left another job and approached the principal of the respondent, Mr Robert Powell, about a position with the respondent at its office in a developing suburb of Melbourne, Hampton Park. Subsequently the applicant had a conversation with the sales manager of the respondent, Mr Alan Johnson.
At the time of the discussions the respondent had only recently opened its office in Hampton Park. One other sales representative was already employed and Mr Johnson told the applicant that he was not in a position to immediately employ the applicant on the usual conditions within the industry, namely, a retainer, car allowance and commission. I am satisfied that in a conversation between the applicant and Mr Johnson the two parties agreed that the applicant would be employed on a one month's trial basis. The applicant was to be paid a petrol allowance over that period and if the applicant was performing satisfactorily at the end of the period the relationship between the parties would be regularised and the applicant would be entitled to draw a retainer on sales commission which was due. Mr Johnson gave clear evidence that the trial period was to be the arrangement between the parties.
The applicant claimed that the only reference to a one month trial in the conversation between himself and Mr Johnson was that he would not be paid a retainer for that period. He claims that the arrangement was that as long as he could generate his own work he could continue with the respondent. I prefer the evidence of Mr Johnson that this was indeed a one month's trial period agreed between the parties and that that trial period was not dispensed with or modified before the parties parted company.
The applicant's employment ceases.
At the time the applicant commenced employment with the respondent his spouse, Joanne Dawn, was in receipt of a government Jobsearch allowance. As her spouse he was apparently entitled to a partner's allowance that was to be repaid in the event that he received remuneration. A few days after the applicant commenced with the respondent, Joanne Dawn was offered a position as a sales representative with L.J. Hooker, a competing Hampton Park real estate agency.
As many properties are listed with more than one agent and buyers often approach more than one agent, the applicant raised with Mr Johnson the fact that his spouse was to commence in the position with L.J. Hooker. It was the applicant's evidence that when he raised the matter Mr Johnson made it clear that such a position would be intolerable as far as the respondent was concerned. Mr Johnson said to the applicant that he had no choice: if Joanne Dawn went to work at L.J. Hooker, the applicant could not continue with the respondent.
Mr Johnson denied that he gave the applicant any ultimatum in the conversation. His evidence was that the discussion was wide ranging and particularly focused on some logistical problems faced by Mr and Mrs Dawn when she commenced work. The couple had only one car and child care had to be arranged for three pre-school-age children. Mr Johnson's evidence was that in the conversation he also raised the applicant's long term future with the respondent in the event that Mrs Dawn was working for a competitor, and how this could be a source of friction and embarrassment. After an extended conversation the applicant left with the matter unresolved. He then attended at the L.J. Hooker office and was able to secure a position for both himself and his wife.
The applicant returned to the respondent's office and advised Mr Johnson. He left that day. Before he left, Mr Johnson and the applicant agreed that the applicant would be “looked after” in relation to commissions that were due to him as a result of his endeavours during the course of his employment. At that stage the applicant had listed two properties and introduced a buyer to a property. In the conversation between them Mr Johnson said to the applicant to “stay away from the respondent's clients”, and the applicant agreed. The parting was amicable. Mr Johnson, who had been impressed with the applicant's performance to date, told the applicant to get back in touch with him should the new position not work out. He “wanted to keep the door open”.
Subsequent events.
A week or so later the other sales representative of the respondent, Mr Bradley Smith, advised Mr Johnson that he intended to resign. At this Mr Johnson contacted the applicant and his spouse and a meeting was held to discuss a possible position with the respondent. Nothing eventuated.
Around this time the respondent received information that the applicant, or Mrs Dawn, may have been contacting clients of the respondent. The respondent obtained some verification of this and has lodged a complaint with the relevant licensing authority. As a result of the respondent receiving the above information it refused to pay the applicant any moneys for commissions arising out of his period of employment with it. In early October the applicant made inquiries of Wageline and then brought these proceedings.
Extension of time.
The applicant does not need to apply for an extension of time to bring these proceedings as there was no evidence that the respondent ever gave him notice of the termination of his employment. Under section 170EA(3) of the Act the fourteen day period runs from the giving of written notice of termination of employment.
Was this a termination at the initiative of the employer?
There was a close evidentiary contest as to whether Mr Johnson, in effect, forced the applicant to leave his position with the respondent. The applicant pointed to the fact that he had heard that the new employer may have been difficult to work for. He also pointed to Mr Johnson's evidence that the position, had Mrs Dawn worked for L.J. Hooker, would have been intolerable. He also pointed to the fact that although Mr Powell was the principal of the respondent, Mr Johnson had authority to make these types of decision and Mr Powell would respect them.
Mr Johnson in contrast asserted that he took no decision to give the applicant an ultimatum. He conceded that he pointed to the difficulties should Mrs Dawn commence with the competitor but that that was to be something in the future. His evidence was that it was the applicant who, by returning with the news that he had obtained a position with L.J. Hooker, said that he had "solved the problem".
Having considered the evidence, and in particular the common ground that the parting between the parties was amicable, I am not satisfied that on 26 July the applicant had "no effective or real choice" or that he did “not voluntarily" leave the employment :
Mohazab v Dick Smith Electronics Pty Limited, (Full Court of the Industrial Relations Court of Australia, 28 November 1995). I prefer the evidence of Mr Johnson that he raised the potential difficulties with the applicant but that he gave no ultimatum. When these future difficulties were raised the applicant saw them and then resolved them by securing the position with L.J. Hooker. He then voluntarily left. The sequence of events was not put in train by the respondent but by the applicant who was understandably keen to allow his spouse to join the workforce with the minimum of disruption to their own domestic arrangements and his own employment position.
It follows from this that there has been no “termination at the initiative of the employer” as required by the Termination of Employment Convention (Schedule 10 to the Act) and the Court does not have jurisdiction to grant a remedy under section 170EE of the Act.
Probationary or qualifying period.
If I am wrong in my conclusion that the respondent did not initiate the termination of the employment here, I should indicate that in any event the applicant would have been excluded from a remedy under Regulation 30B(1)(c) of the Regulations. I am satisfied on the evidence that the applicant was in a qualifying period that had been determined in advance and was reasonable in the circumstances.
The claim for commission.
This leaves for decision the applicant's claim for commissions due. Although he did not articulate it as such, the applicant is clearly seeking amounts for commission within the accrued jurisdiction of the Court under section 418 of the Act.
The respondent opposed the determination of the claim on the basis that it had no notice of the claim. The Court is not satisfied that the original claim was colourable and that it had been fashioned merely to allow the applicant to claim the commissions.
The Court is also not satisfied that the respondent has demonstrated any prejudice by allowing these matters to be determined within this proceeding. No adjournment was sought.
The applicant claimed a listing commission of $385 in respect of one property described as Hazeldene Grove. He also claimed a selling commission in respect of the same property. The respondent raised two matters in defence of the claim. It claimed Mr Johnson had only agreed to pay any commissions conditionally on the applicant not approaching its clients. Secondly, it argued that the claim for the selling commission was too uncertain.
As to the first, I am not satisfied that the respondent has demonstrated that the applicant has breached any agreement with Mr Johnson. The applicant denied on oath any such approaching of clients and I accept his evidence on this point. I am satisfied that the applicant has made out his claim based on his agreement with Mr Johnson. The amount is $385, being the listing commission due on one property that was subsequently sold.
I am not satisfied that he has made out his claim for a selling commission on the same property. The evidence was that while he may have introduced the buyer who ultimately purchased the property, the property had not been sold at the time that he ceased employment and that the ultimate sale could have been closed by another person in the office in any event. In these circumstances the applicant is not entitled to any selling commission on that property.
Costs
The respondent sought costs. I am not satisfied that these proceedings were instituted “vexatiously or without reasonable cause” (s347(1) of the Act), as that phrase has been considered in a number of cases. The fact that a claim is unsuccessful on the merits does not mean that it can be characterised as either vexatious or without reasonable cause. I am not satisfied that it is proper to characterise these proceedings, when they were issued, as without reasonable cause, and I therefore refuse an order for costs.
The Order of the Court
The application for a remedy under Division 3 of Part VIA of the Act is dismissed.
The respondent is ordered to pay the applicant the sum of $385 within 21 days.
The respondent’s application for costs is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application for a remedy under Division 3 of Part VIA of the Act is dismissed.
The respondent is to pay the applicant the sum of $385 within 21 days.
The respondent’s application for costs 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 seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.
Associate:
Dated: 17 January 1996.
Applicant in person.
Solicitors for the Respondent: Messrs. Mian Phillips & Co.
Counsel for the Respondent: Mr W. F. Gillies
Date of hearing: 17 January 1996.
Date of judgment: 17 January 1996.
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