Gimbutt, Janice v Baiada Poultry
[1997] FCA 640
•18 JULY 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - VALID REASON - CONDUCT AND PERFORMANCE - ONUS OF PROOF - OPPORTUNITY TO RESPOND - employee terminated while agreed period of evaluation and training incomplete - REMEDY - COMPENSATION - assessment of likelihood of employee being confirmed in position for which she was being evaluated and trained.
Workplace Relations Act 1996 (Cth) ss170DC, 170DE, 170EA, 170EDA, 170EE.
Workplace Relations and Other Legislation Amendment Act 1996 (Cth) Sch 16
Termination of Employment Convention, 1982 Art. 7
Termination of Employment Recommendation, 1982 Paras 7 & 8.
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Gibson v Bosmac Pty Ltd (1995) 60 IR 1
Drury v BHP Refractories Pty Ltd (1995) 62 IR 467
Byrne v Australian Airlines Ltd (1995) 131 ALR 422
Fryar v System Services Pty Ltd (1996) 137 ALR 321
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199
Perrin v Des Taylor Pty Ltd (1995) 58 IR 254
Gunnedah Shire Council v Grout (1995) 134 ALR 156
Brighouse Ltd v Bilderbeck [1995] 1 NZLR 158
Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370.
Reine v Rumpe (unreported, Industrial Relations Court of Australia, Madgwick J, 1 November 1995)
GIMBUTT v BAIADA POULTRY
VI 1302 of 1997
Before: MURPHY JR
Place: MELBOURNE
Date: 18 JULY 1997
IN THE FEDERAL COURT GENERAL DISTRIBUTION
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1302 of 1997
BETWEEN:
JANICE GIMBUTT
Applicant
AND
BAIADA POULTRY
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 18 JULY 1997
MINUTES OF ORDERS
ORDERS:
The Court declares that the respondent has breached ss170DC and 170DE(1) of the Workplace Relations Act1996 (Cth);
The Court orders the respondent pay to the applicant the sum of $9,220.
The respondent may offset against the sum in paragraph 2 hereof any amounts remitted to the Australian Taxation Office on the applicant’s account.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI97/1302
BETWEEN:
JANICE GIMBUTT
Applicant
AND
BAIADA POULTRY
Respondent
BEFORE: MURPHY JR
PLACE: MELBOURNE
DATE: 18 JULY 1997
REASONS FOR DECISION
Introduction.
The applicant applies for a remedy under s170EA of the Workplace Relations Act 1996 (“the Act”). The matter comes before the Federal Court of Australia as a result of the provisions of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996. Sch 16 transferred the Industrial Relations Court of Australia’s jurisdiction under the Industrial Relations Act 1988 (now retitled the Workplace Relations Act), and any proceedings where the court had not commenced the substantive hearing, to the Federal Court of Australia: items 63 and 64. Sch 16 also provided for the appointment of the judicial registrars of the Industrial Relations Court to a comparable office in the Federal Court for the balance of their respective terms, and preserved the delegation to them of the powers of the court in relation to unlawful termination claims: items 73, 19 and 67.
The respondent operates a hatchery at Tullamarine. The applicant’s employment as assistant hatchery manager was terminated on 31 October 1996. She alleged that the circumstances contravened ss170DC (opportunity to respond) and 170DE (valid reason) of the Act, and sought compensation under s170EE(2) of the Act. In the following narrative I set out my findings on the relevant facts.
The initial engagement.
The applicant had been unemployed for some years and responded to an advertisement for a casual hatchery assistant (Exhibit A2) which the respondent placed at the CES. She attended a total of four interviews. The first two interviews were conducted by the manager of the hatchery, Mr Alan Davies. After initially seeing the applicant he formed the view that the applicant’s background may make her suitable for the position of assistant hatchery manager. The respondent had been unsuccessfully looking for an assistant manager for some months. During the third interview Mr Davies was assisted by Mr Bert Cullaewart, the sales manager of the respondent. Mr Cullaewart was also present at the fourth interview, and the two were joined by the respondent’s Sydney based Livestock Operations Manager, Mr Greg Lea. At the final two interviews details of the duties of the assistant hatchery manager were explained.
The duties were wide. They included being familiar with the operations of the hatchery, such as setting eggs and vaccinating chicks, and organising and supervising staff. The duties of assistant manager also involved relieving the manager and thus being on call twenty-four hours a day to respond to alarms on the incubators. It was a requirement that the on-call manager remain within a five minute drive of the hatchery at all times so that prompt remedial action could be taken in response to an alarm. Mr Davies had been manager for the previous eighteen months without any relief being available. The applicant was very keen to secure employment and enthusiastic about her ability to discharge the duties.
Three matters about the discussions require specific findings. Because the applicant had no prior experience in either a managerial position or in the poultry industry, the question of training was discussed with her. The respondent’s representatives gave evidence that it was explained to the applicant that the training would take three months and at the end of that period, if she had successfully completed the training and grasped the responsibilities of the position, she would be made permanent in the position.
In evidence the applicant suggested that the period was two months and that she was told that the period was a “mere formality”. I do not accept her evidence on this point. The evidence of the respondent’s witnesses on this issue has a ring of truth about it. The respondent needed an assistant manager. At the same time the position carried significant responsibilities and the applicant had no recent experience relevant to those responsibilities. It is only natural that the respondent would reserve its position as to whether the applicant would be confirmed in the position by providing that her confirmation was subject to successful completion of a training or familiarisation period.
A related issue was that of accommodation. The respondent provided Mr Davies with a house close to the hatchery. Initially the applicant was told that the respondent would arrange a townhouse for her when she assumed the duties of assistant manager. When she indicated she preferred a house her evidence was that she was told to go out looking for one. Mr Cullaewart said that in the interviews the question of accommodation was to be taken up when the applicant was formally confirmed in the position. In the applicant’s evidence-in-chief she said that she assumed that Mr Davies gave her the go ahead to start looking for a house. In fact as events transpired the applicant went ahead and found a suitable house. She sold her own house, took out a mortgage and arranged to move into the house in late October.
Despite these actions I am satisfied that nothing was concluded between the parties in relation to the applicant’s accommodation in the final interviews. This is consistent with Mr Davies’ evidence that at all times he discouraged the applicant from purchasing a house on the basis that when she was confirmed in the position, the respondent, consistent with its arrangements with him, would provide accommodation. He gave unchallenged evidence that at one stage when he put this to the applicant she said “it doesn’t matter I’d like to live in the area anyway”.
I am satisfied that the applicant’s enthusiasm in obtaining employment and desire to start a new life clouded her judgment. She went ahead and purchased a house without being confirmed in the position as assistant hatchery manager. She failed to appreciate that she would not be confirmed in the position as assistant hatchery manager until the respondent formed the view that she was able to discharge the duties of that position. As will be seen this did not happen.
The third issue discussed in the final interviews was the question of salary. The respondent advised the applicant that she would be paid a monthly salary. The applicant said this would create personal difficulties for her. It was agreed that the applicant would be paid weekly for the hours worked during the training period. An hourly rate of $11.20 was struck and it was agreed that thirty-eight hours per week work would be provided. Such an arrangement is consistent with Mr Lea’s evidence that for the first three months the applicant was training for the position and the question of her salary level when confirmed in the position was not addressed at the interviews. There was no salary for the position of assistant hatchery manager agreed between the parties at the final interviews.
Events between July and 17 October lead to an important meeting.
The applicant commenced in the position in late July 1996. She was shown over the hatchery and provided with various manuals to read. She was handed a pager and Mr Davies suggested that if she was in the area when an alarm sounded she should attend to familiarise herself with responding to call-in’s. I am satisfied that at no stage did he direct the applicant that she was on call.
There was a dispute as to the extent of the training that was provided to the applicant over the period. Mr Davies gave evidence that he provided instruction in the various procedures. He said however that when he proposed further training the applicant would reply that she was too busy and would go home. The applicant’s account was that Mr Davies was unapproachable and did not provide her proper training. She was forced to obtain information from the supervisor and other employees.
For one week over this period Mr Davies was relieved by Mr Box, a manager from Sydney. The applicant’s evidence was that she learned a lot during that week and that at the end of it Mr Box indicated to the staff that the applicant would soon be running the place. Neither Mr Davies nor the supervisor, who were said to be present, were able to recollect that comment. Mr Box was not called. I accept the comment was made but do not see it as relevant given later events.
I am satisfied that the applicant was provided with some training over the period. The training envisaged when she was appointed was however, incomplete. It was clear by 17 October that the applicant was not fully familiar with the duties, and unable to discharge the responsibilities of the position. On her own evidence the applicant accepted this when she proposed that she attend a management training course. On her evidence this arose out of difficulties being created by the staff of the respondent essentially “testing” her. She also admitted she had trouble completing the vaccine stocktake.
A further aspect of events over this period was that the applicant required time off associated with her search for accommodation. Mr Davies claimed that the applicant sought time off without notice, or at short notice. The applicant claimed that although she did require some time off associated with the purchase of the house, it was always approved by Mr Davies. I am satisfied that while unhappy with the applicant’s requests for time off for these personal reasons, Mr Davies did approve them. The extent of the time off that the applicant took in that period is evidenced by the fact that in only two of the thirteen weeks that she was employed did she work the full thirty-eight hours. The average number of hours worked recorded in the pay documentation (Exhibits A1 and R2), was twenty-eight hours.
The meeting of 17 October 1996.
On 17 October there was a meeting between the applicant, Mr Lea and Mr Davies. What happened at that meeting assumed central importance in the proceeding. The meeting went for between one and two hours. Mr Lea’s evidence as to the background of the meeting was that Mr Davies had been advising him that he was unable to recommend that the applicant be confirmed in her position. Mr Box had also advised him of concerns as to the applicant’s ability to pick up technical aspects of the job.
Mr Lea’s evidence was that at the meeting he went through a number of points regarding the applicant’s performance. These included her ability to manage staff, the amount of time she was taking off, and her attempts to undertake vaccine stocktakes. He said the applicant turned around the discussion and said that Mr Davies was unapproachable and that she wasn’t being trained sufficiently. Neither Mr Lea nor Mr Davies were able to recall that the applicant had proposed that she undertake a management course. Mr Lea said that the meeting concluded on the basis that the training period originally agreed upon was to be extended for a further two to four weeks. He said that the respondent wanted to see some sign of a turnaround in the applicant’s performance. The applicant was told that unless her performance improved over that period she “didn’t have the job”. He said that the applicant had raised the question as to whether in the event she was not confirmed in the position she could be put on as a casual hatchery assistant. She was advised that this was very unlikely due to the embarrassment associated with her previous supervisory role.
The applicant’s account of the meeting was significantly different. She said that while a number of “little things” were raised the only performance issue raised was the question of supervision of staff. She said the focus of the meeting was on the cattishness of staff. She denied that the question of extending her training period was raised. She also denied that there was any suggestion that her job may be on the line. She said that the question of the time she had taken off was raised by her. She apologised and said that this was in the past and that matters had been sorted out. She denied that any issue of reverting to a hatchery assistant was raised.
On this conflict in the accounts I accept the respondent’s version of the meeting. I am satisfied that at this meeting the training period was extended for a further two to four weeks. Further, the applicant was put on notice that unless her performance was assessed as satisfactory, her position was at risk. As Mr Lea said, “she knew her performance had to turn around and her job was virtually on the line”.
I am unable to accept the applicant’s evidence that the focus of the discussion was merely on her relations with staff. The matters canvassed went wider than that. Given the applicant’s account that she had been having difficulties with the supervision of staff, and had been required to have time off associated with the house purchase, it is not surprising that the matters canvassed in the meeting were wide. It is also significant that the applicant admitted that she apologised for taking time off. The respondent’s witnesses said they raised this as an issue. If the applicant did apologise then it is most likely that this aspect of her performance was canvassed at the meeting.
One matter which confirms one aspect of Mr Lea’s account of the meeting arises out of the circumstances of the applicant’s termination. When she was terminated the applicant said she raised with Mr Davies the question of working as a hatchery assistant. Mr Lea was not present during the exchange. This makes it unlikely that he could be confused when he gave evidence that the question of the applicant reverting to the position of a hatchery assistant had been raised earlier in the meeting of 17 October.
The applicant is dismissed.
On Monday 21 October at 7.30 am the applicant came to Mr Davies and told him she would need the rest of the week off to move house. Mr Davies told her that she was entitled to a bit of time off but not that much. He queried whether it was advisable to do so after the earlier discussion with Mr Lea. On his account the applicant did not reply but walked out at 10.15 am. The applicant’s version was that Mr Davies knew that she had to move house on that day and had previously approved a week’s leave for that purpose. Mr Davies signed a leave form (Exhibit A4), which is dated 21 October 1996.
On this conflict I find that the applicant had not, prior to 21 October, sought specific approval for a week’s leave commencing that day. She had only canvassed it in general with Mr Davies. This is confirmed by the fact that although the applicant said she apologised in the meeting of 17 October for taking time off, on her own evidence she did not mention the fact that she had a further week’s leave coming up which she said Mr Davies had approved. Had it been specifically approved by Mr Davies it is most likely that it would have been raised at the meeting of 17 October.
The applicant was due to resume work on Monday 27 October at 6.00 am. At about 7.20 am she rang Mr Davies and told him she was having problems with the house and needed a few more days off. On Mr Davies’ account she then hung up without giving him an opportunity to reply. On the applicant’s account she told him that she was having some problems and also had the flu. She said that Mr Davies agreed to a further period of time off and told her to come in on Thursday. Mr Davies emphatically denied any reference to illness in that conversation. There was only a marginal difference in these accounts. I accept that the applicant did not suggest illness as part of the reason why she needed further time off. I am satisfied that the applicant gave Mr Davies no opportunity to consider whether to consent to further time off. He gave evidence, which I accept, that he actually drove along a street looking for the applicant’s new house, and expected her back each day of that week. The applicant had not given Mr Davies any address for her new house and I give little credence to her suggestion that the address was contained in some paperwork in her desk.
Mr Davies had been fairly indulgent with the applicant in relation to leave in the past. As she was only being paid for the hours she actually worked, I am satisfied the applicant took the view that Mr Davies had assented, albeit reluctantly, to further time off. After that day Mr Davies consulted with Mr Lea. He advised Mr Lea that the applicant still wanted a lot of time off and that the applicant was not interested in her job. The two decided to terminate her employment.
The applicant arrived at work on Thursday 31 October. At some stage Mr Davies told her that it was beyond a joke. He said that she did not have a commitment to her job and was not learning. On the applicant’s account he said “it was not working out”. He asked for her resignation. She refused. Mr Davies then dismissed her. At this point the applicant sought a position as a casual hatchery assistant. Mr Davies repeated the discussion at the earlier meeting that this was not practicable. The applicant was paid two weeks pay in lieu of notice.
In evidence Mr Davies gave the reason for the termination as lack of commitment, the inability to learn, and taking time off. Mr Lea gave the reason as primarily associated with demanding time off without proper notice. The Employment Separation Certificate (Exhibit A3) records “Unsatisfactory work performance & commitment” as the reason for the termination.
Disciplinary dismissals and a “fair go”.
Before applying the above facts to the Act it must be noted that there is imposed on employers a specific obligation to allow the employee an opportunity to respond to the allegations that form the basis of any decision to terminate his or her employment: s170DC. In a disciplinary dismissal, i.e. a termination of employment based on conduct or performance, the issue of an opportunity to respond may however overlap with the issue of the validity of the decision to terminate: s170DE(1). This can be seen from early decisions such as Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, Gibson v Bosmac Pty Ltd (1995) 60 IR 1, and Drury v BHP Refractories Pty Ltd (1995) 62 IR 467, where the process leading to the termination decision forms part of the consideration of whether the dismissal was justified.
The importance of the process undertaken to the validity or defensibility of the decision to dismiss is also consistent with the comment in Byrne v Australian Airlines Ltd. (1995) 131 ALR 422 at 462 per McHugh and Gummow JJ, that in considering whether a dismissal is “harsh, unjust or unreasonable”, the “distinction between procedure and substance is elusive....”: compare a similar comment on the New Zealand provisions in Brighouse Ltd v Bilderbeck [1995] 1 NZLR 158 at 166. The need to consider the substance of the matter is also evidenced by the 1995 amendments to the Act which added the qualifying phrase “all the circumstances of the case” to the now invalidated s170DE(2) and to the still valid s170EE(1) of the Act: see the parliamentary material extracted in Fryar v System Services Pty. Ltd. (1996) 137 ALR 321 at 328-9.
When applying the statutory scheme to the facts of a particular case it is also relevant to notice the international instruments which the Act seeks to give effect to. They are respectively Schedules 10 and 11 of the Act and the relevant provisions relating to disciplinary dismissals are as follows :
“Termination of Employment Convention, 1982
Division B Procedure prior to or at the time of termination
Article 7
The employment of a worker shall not be terminated for reasons related to the worker’s conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity.”“Termination of Employment Recommendation, 1982
II Standards of General Application
Procedure Prior to or at the Time of Termination7 The employment of a worker should not be terminated for misconduct of a kind that under national law or practice would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate written warning.
8 The employment of a worker should not be terminated for unsatisfactory performance, unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed.”
The Industrial Relations Court of Australia has repeatedly held that the Act is to be given a broad beneficial effect: see e.g. Gunnedah Shire Council v Grout (1995) 134 ALR 156. This is reflected in Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 at 372 where Lee J said:
“By giving effect to the Convention the Act seeks to establish a balance between the right of an employer to duly manage an enterprise in which labour is employed and the right of an employee, and of the community, not to have the asset represented by the capacity of employees who provide such labour, whether skilled or unskilled, depreciated by incompetent or capricious management of labour by an employer”.
At 372 Lee J noted that in Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693, Lord Denning said that it is an implied term of an employment contract that an employer be “good and considerate” to its employees. These comments are relevant in applying the specific provisions of the Act.
In Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 209, Wilcox CJ, in a comment that has echoed through the cases, stated that the obligation to accord procedural fairness is substantive but does not require any particular formality. The obligation is encapsulated, according to Wilcox CJ, in an obligation to accord a “fair go” to the employee.
In Perrin v Des Taylor Pty Ltd (1995) 58 IR 254 at 256 Moore J said:
“Its purpose [s170DC] is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee’s capacity....
A second purpose of s170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. They may be extenuating personal circumstances or they may involve undertakings about future conduct.”
Has the respondent lawfully dismissed the applicant?
The respondent carries the onus of proof that it had a valid reason to dismiss the applicant: s170EDA(1). Although the applicant carries the substantive onus that the respondent has failed to accord her the opportunity to respond, the respondent carries an evidentiary onus on this issue because the reasons for the dismissal are known to it: see Selvachandran (above) at 373.
Here the respondent dismissed the applicant for a combination of reasons. They are encapsulated in a comment made by Mr Davies on 31 October when giving the applicant the grim message - “things are not working out”. What was not working out was the process of successfully training the applicant so that she could be confirmed in the position of assistant hatchery manager.
The question for determination is whether, given the events over the period of employment, the respondent had a valid, in the sense of a sound, defensible or well founded reason to terminate the applicant’s employment. Within that question is the more specific question whether it gave her the opportunity to respond to the matters on which it relied.
While it is tempting to adopt a broad brush approach and accept the submission of counsel for the respondent that what happened on 28 October was the straw that broke the camel’s back, the matter is more complicated than that. On 17 October the applicant had been told that her overall performance had to improve. On 21 October Mr Davies had approved, albeit reluctantly, her request for a week’s leave to enable her to move house. Although it was clear that he had reservations about the applicant’s chances of being confirmed, the applicant left him little choice since he knew that, over his discouragement, she had purchased a house within the required call-in range of the hatchery.
The next event in the narrative is the applicant peremptorily seeking further leave on 28 October. For Mr Davies this was the continuation of a pattern of the applicant effectively pleasing herself in relation to the impact of personal matters on her working time. While I am satisfied that Mr Davies did not assent to a further period of leave, it is difficult to see how it could be said that the circumstances of the applicant taking that leave are such that, either alone or in combination with the earlier events, the incident was sufficient to provide a defensible basis upon which to terminate the applicant’s employment at that stage.
The meeting of 17 October gave the applicant two to four weeks to respond to a number of concerns that the respondent had about her performance. This required that there be a period when the applicant was provided, in the context of past events, with appropriate assistance and training to enable an assessment of whether she was cut out for the position of assistant hatchery manager, and whether she would respond to the requirements of that position. One of the requirements was that the applicant improve her commitment to the job. The fact that on 28 October she forced on Mr Davies a further period of leave is not, absent a final warning specifically directed to that issue, sufficient in these circumstances to discharge the respondent’s onus of proof that it had a defensible reason to dismiss her.
While I accept the evidence of Mr Lea that the respondent is a fairminded employer and does give its employees a proper opportunity before terminating them on performance grounds, here that opportunity was not afforded the applicant. Mr Davies could have done more than what he did. He did not even seek to investigate why the applicant needed the additional time off. The question of taking time off was only part of a wider range of performance inadequacies that were discussed at the meeting on 17 October.
When the matter is looked at in this light it is difficult to see how the applicant, as envisaged at the meeting of 17 October, had the opportunity to improve her performance. She certainly did not have the opportunity to put to the respondent details of the problems she was having with her new house, or even, if it was in fact the case, that she was sick on 28 October. She never had an opportunity to plead with the respondent that she had just incurred a mortgage and should be given the opportunity to attempt to discharge the duties of the assistant hatchery manager now that she lived within the respondent’s call-in range. She did not have the opportunity to give the respondent an undertaking that she would accept dismissal in the event of any further unscheduled absences.
All these matters are fully within the obligations imposed on employers under s170DC and envisaged in the international instruments extracted above. The failure of the respondent, within the framework of the meeting of 17 October, to stay its hand deprived the decision of both procedural and substantive fairness.I am satisfied that the respondent has breached ss170DC and 170DE(1) and I so declare.
Remedy.
The applicant seeks compensation for the loss she has suffered as a result of the unlawful termination of her employment. To date, despite a wide job search, she has remained unemployed. The applicant’s remuneration loss thus exceeds the statutory cap of six months remuneration set in s170EE(3). In Nicolson (above) at 212-3, Wilcox CJ said:
“.....[i]n assessing compensation for a breach of s170DC, it is appropriate to consider what would have been likely to occur if that breach had not occurred. It should not be assumed that the employee would have been dismissed anyway. Such an assumption ignores the rationale of procedural fairness and everyday experience that decision makers often change their minds when presented with another side of the case. It devalues s170DC to the point of redundancy.
On the other hand, it would be unrealistic for a court automatically to assume that, if this employer had complied with s170DC, the employee’s employment would have continued indefinitely.
......If I had reached the question of compensation, I would have assessed it on the basis that the procedural irregularity deprived [the applicant] of a chance of retaining his employment.”
Compare Perrin (above) at 258, where the applicant had previously shown a capacity to improve his performance, and see also Reine v Rumpe (unreported, Industrial Relations Court of Australia, Madgwick J, 1 November 1995) where Madgwick J formed the view that the employee was unlikely to be found suitable for the position.
Here I have found that there has been a breach of both ss170DC and 170DE(1). The breach of both provisions is related to the question of the process followed by the respondent to reach its decision. In these circumstances, in assessing compensation, I propose to follow the reasoning in Nicolson.
This requires an assessment, had she not been dismissed on 31 October, of the likelihood of the applicant’s employment continuing, This is not an easy task. The respondent, through Messrs Davies and Lea, was clearly losing patience with the applicant. She was having difficulty mastering the duties required for the position and she said she found Mr Davies unapproachable. On any view her actions in taking nearly two weeks leave to move house could not have impressed Mr Davies. She had suggested a management course to improve her supervisory skills but nothing had been put in place. Whether the course would have turned matters around is a matter of speculation. The staff were proving difficult for her to manage. Given this material it is reasonable to say that in October last year the applicant could not have had a strong expectation of secure employment. The situation was that there was a possibility rather than a probability that she would have been confirmed in the position. Contrary to her own evidence, the applicant was not in a position where her employment was “secure for ever and a day”.
On the other hand the applicant had moved closer to the hatchery and so Mr Davies was in a position to assess the applicant’s ability to handle call-in alarms. After some exposure period the applicant may have been confirmed in her position as assistant hatchery manager and the appropriate salary level negotiated. The applicant had a real incentive to succeed at that point because she had just incurred a mortgage she had to service. The respondent had a correspondeing interest and obligation, at least until 11 December 1996 when the JobStart wage subsidy it was receiving for the applicant ceased.
In weighing the competing possibilities here I conclude that the loss of the chance to respond to the performance deficiencies, had the applicant been accorded a reasonable opportunity, should be assessed as the equivalent of four months wages. In other words, had the unlawful termination of employment not occurred, the most probable outcome is the employment would have continued for another four months. This is two weeks for the balance of the extended training period envisaged on 17 October, and the balance as an assessment of the probability of the applicant either being confirmed in the position, or remaining employed but convincing the respondent to retain her as a casual hatchery assistant. Messrs Lea and Davies peremptorily dismissed this request by the applicant. Given the respondent’s own investment in training the applicant, and the applicant’s move, with the knowledge of the respondent, to the Tullamarine area, a “good and considerate employer” (see Woods (above)) would have given this request more consideration than it did.
The applicant’s wage rate for a thirty-eight hour week totalled $425.60 per week. Counsel for the applicant calculated that in the last ten weeks of her employment the applicant’s average gross earnings were $532.00 per week. I am satisfied that this represents a more representative indication of her likely earnings in the four months following her termination and I propose to award compensation based on that amount. This totals $9,220 and I will order the respondent to pay compensation in that amount.
ORDERS:
The Court declares that the respondent has breached ss170DC and 170DE(1) of the Workplace Relations Act 1996 (Cth);
The Court orders the respondent pay to the applicant the sum of $9,220.
The respondent may offset against the sum in paragraph 2 hereof any amounts remitted to the Australian Taxation Office on the applicant’s account.
I certify that this and the preceding twelve (12) pages are a true copy of the reasons for decision of Murphy JR.
Associate: KAREN HALSE
Dated: 18 JULY 1997
Counsel for the applicant: MS R DOYLE Solicitor for the applicant: SLATER & GORDON Counsel for the respondent: MR BRUCE SHAW Solicitor for the respondent: PHILLIPS FOX Dates of Hearing: 23 & 24 JUNE 1997 Date of Judgment: 18 JULY 1997.
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