Fehlberg v Spark and Cannon
[1996] IRCA 284
•20 June 1996
DECISION NO: 284/96
C A T C H W O R D S
INDUSTRIAL LAW - Whether termination at the initiative of the employer
INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170EE
FEHLBERG -V- SPARK & CANNON
No. SA95/1636
JUDICIAL REGISTRAR: L FARRELL
PLACE: ADELAIDE
DATE: 20 JUNE 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SA95/1636
B E T W E E N:
MARIE THERASE FEHLBERG
Applicant
AND
SPARK & CANNON (SA) PTY LTD
Respondent
MINUTES OF ORDER
BEFORE: JUDICIAL REGISTRAR L FARRELL
PLACE: ADELAIDE
DATE: 20 JUNE 1996
THE COURT ORDERS THAT:
The application is dismissed.
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 )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SA95/1636
B E T W E E N:
MARIE THERASE FEHLHERG
Applicant
AND
SPARK & CANNON (SA) PTY LTD
Respondent
BEFORE: JUDICIAL REGISTRAR L FARRELL
PLACE: ADELAIDE
DATE: 20 JUNE 1996
REASONS FOR JUDGMENT
This is an application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that her employment was terminated unlawfully. She seeks compensation.
The Applicant was employed by the Respondent on a casual basis performing word processing duties from mid 1988. She developed a friendship with Ms Peta Cannon, one of the directors of the Respondent over the time she was employed.
Sometime in 1995 negotiations began regarding wages and conditions at the Respondent’s business. The Applicant’s union became involved and tensions became apparent in the workplace. To some extent the Applicant’s relationship with Ms Cannon was affected by these workplace tensions. There was some dispute regarding the payment of overtime for weekend work. The Applicant was one of the people who performed that work .
On Friday, 27 October 1995 the Applicant inquired of Ms Lewis, payroll clerk regarding her entitlement to long service leave. Ms Lewis was uncertain as to the number of years the Applicant was entitled to count towards long service leave because of the nature of her early employment with the Respondent.
During her lunchbreak the Applicant along with Ms Forby, another employee of the Respondent, attended an office of the Department for Industrial Affairs. Their purpose in visiting the Department was to ascertain details of their entitlement to payments of overtime for weekend work.
Whilst they were in a waiting room of the Department they were observed by another employee of the Respondent. The Applicant was embarrassed and concerned about that employee seeing her at the Department for Industrial Affairs office because she believed that employee would tell Ms. Cannon that she, the Applicant had been there.
There was some dispute on the evidence before me as to whether the Applicant was informed by Ms Lewis that afternoon that she was entitled to have her long service leave calculated on her service from mid 1988.Nothing turns on whether the Applicant was told at that time.
The Applicant left work at about 4pm because she felt unwell. Ms Cannon telephoned the Applicant later that evening. The two had a conversation the contents of which was much in dispute. I accept the Applicant’s version of that conversation. She was in a better position to recall what was said as she was alone when she took the call. Moreover Ms Cannon was in a noisy restaurant and was affected by alcohol.
The gist of the conversation was to the effect that Ms Cannon told the Applicant that she could take her long service leave money and go, that the Applicant was the “lap dog” of Ms Forby, and the word “fuck” was used a number of times by Ms Cannon. The Applicant gave evidence that she asked Ms Cannon if she was sacking her, and Ms Cannon said “No”.
After that conversation concluded the Applicant telephoned Ms Forby. She had a meeting the following day with Ms Forby and Mr Smith. Ms Forby visited her on Sunday.
On Monday morning, 30 October 1995 the Applicant attended at the office of her union. A union official telephoned Ms Cannon and advised her that the Applicant was resigning and requested that her long service leave cheque be couriered to the union office. Ms Cannon complied with the request.
Counsel for the Applicant argued that this was a termination of employment at the initiative of the Respondent. She relied largely on the conversation on the evening of 27 October 1995 and the use of the word “fuck” and “you can take your long service leave and go”.
I accept that the conduct of Ms Cannon in speaking with the Applicant that way was unprofessional and unwarranted. I am not satisfied that the resignation of the Applicant was the probable result of Ms Cannon’s conduct. I do not think the Applicant was in any way compelled to resign as a result of Ms Cannon’s conduct.
Here were two people of similar age with similar life experiences who had been friends. My impression of the Applicant was not that the telephone conversation intimidated her into resigning, but rather she was motivated to resign by her own perception that she had been disloyal to Ms Cannon by seeking advice from a government department in the company of Ms Forby.
Notably, the evidence of both the Applicant and Ms. Cannon was the same regarding what was said when the Applicant asked Ms Cannon if she was sacking her. In addition the Applicant had available to her the support of her colleagues Ms Forby and Mr Smith. She also had the opportunity to obtain advice from her union before resigning. In my view these are all matters that tend to show that the termination of the Applicant’s employment was not at the initiative of the Respondent.
I therefore find that the Respondent did not terminate the Applicant’s employment. The application is dismissed.
I certify that this and the preceding 3 pages are a true copy of the reasons for my judgment.
DATE OF HEARING : 22 May 1996
FOR THE APPLICANT : Ms J Condon
FOR THE RESPONDENT : Mr S Bakewell
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