Grundy v Subjoint Pty Ltd as Trustee for Brulo Unit Trust Trading as Prodev Realty

DECISION NO: 239/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - real estate salesman - whether there was a VALID REASON - whether procedural unfairness - whether HARSH, UNJUST OR UNREASONABLE - notice.
Industrial Relations Act 1988 ss 170DB, 170DC, 170DE, 170DE(1), 170DE(2), 170EA,
David Francis GRUNDY -v- SUBJOINT PTY LTD AS TRUSTEE FOR BRULO UNIT TRUST TRADING AS PRODEV REALTY - WI 1074 of 1996
Before:                    BOON JR
Place:            PERTH
Date:                        30 MAY 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1074 of 1996

B E T W E E N:
David Francis GRUNDY
Applicant

A N D:
SUBJOINT PTY LTD AS TRUSTEE FOR BRULO
UNIT TRUST TRADING AS PRODEV REALTY
  Respondent
MINUTE OF ORDERS
30 MAY 1996            BOON JR
THE COURT ORDERS THAT:

The respondent pay to the applicant the sum of $2,914.80 minus the amount of any commission earned by Mr Grundy in relation to work carried out after 19 January 1996, within 14 days of the date of this order.
There be liberty to apply in relation to the calculation of the amount of compensation to be paid in lieu of notice, if the parties cannot agree this sum.
The application is otherwise 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
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1074 of 1996
B E T W E E N:
David Francis GRUNDY
           Applicant
A N D:
SUBJOINT PTY LTD AS TRUSTEE FOR BRULO
UNIT TRUST TRADING AS PRODEV REALTY
  Respondent
REASONS FOR DECISION
30 MAY 1996  BOON JR
This is an application under Section 170EA of the Industrial Relations Act 1988. The applicant, David Grundy, is seeking compensation arising out of the alleged unlawful termination of his employment with the respondent.
Mr Grundy alleges that the provisions of the Industrial Relations Act 1988 were breached in a number of ways. Firstly, he says that he was not given the minimum period of notice required by Section 170DB of the Act. Secondly, he says that he was given no opportunity to respond to allegations against his conduct or performance as required by the provisions of Section 170DC. Further, Mr Grundy alleges that there was no valid reason for the termination of his employment and that the termination was in any event harsh, unjust or unreasonable contrary to the provisions of Section 170DE of the Act.

The respondent, Subjoint Pty Ltd as trustee for Brulo Unit Trust trading as ProDev Realty (ProDev Realty), denies each of these allegations.

BACKGROUND

The applicant, David Grundy, is a 52 year old man with a long and varied work history. He presented as a person of above average intelligence. He is separated from his wife and shares the care of their daughter, who at the relevant time was 13 years of age.
The respondent, Subjoint Pty Ltd, has been in operation since 1991. It operates as trustee for the Brulo Unit Trust which trades as ProDev Realty. Mr Louis Schouten and Mr Bruce Buckley are the two directors of the holding company of ProDev Realty. ProDev Realty is the sole selling agency for the Glen Iris Estate. The Glen Iris Estate is a substantial piece of real estate in the Perth metropolitan area comprising a golf course and a large number of residential lots. The Glen Iris Estate is owned by Laurene Developments Pty Ltd. The two directors and shareholders in Laurene Developments are Mr John Court and Mr Bill Wilson. The evidence was that Mr Court and Mr Wilson together have a $45 million investment in the Glen Iris Estate. Although there was some evidence that ProDev Realty was also interested in general real estate, the Glen Iris Estate forms about 95% of ProDev business. Because of this, it is vital for ProDev that it retains the Glen Iris Estate as a project. Mr Court takes an active interest in the sale of lots at Glen Iris. By all accounts, Mr Court is a somewhat demanding person and the directors of ProDev Realty are anxious to comply with his wishes.
Mr Grundy and Mr Schouten have been friends for 25 to 30 years. In late 1993, Mr Schouten approached Mr Grundy and asked if he would like to sell real estate for ProDev Realty. Mr Grundy agreed and attended a real estate course. Although there was some suggestion that ProDev Realty sales people might also sell general real estate, it was agreed that Mr Grundy was employed primarily for the selling of lots at the Glen Iris Estate. Mr Grundy's evidence was that at the time of the interview it was agreed that his pay and conditions would amount to 50% of the REIWA rate of commission. Mr Grundy was never paid a base wage. His sole income was derived from commissions arising out of the sale of land. Before any lots were sold, it was also agreed that 10% would be taken out of his commissions to fund the purchase of a sales office on the Glen Iris Estate. Some time later the commission rate was further reduced by 2.75%. Although Mr Grundy raised this as one of his grievances at the hearing, no claim was made in respect of the reduction in his commission rate and this appears to have no relevance to the substantive issues in this case.
ProDev Realty operates its main office from premises at Subiaco. Mr Buckley spends most of his time at the Subiaco office. The sales office on the Glen Iris Estate was occupied on a roster basis by Mr Grundy and another sales person, Mr Frank Lee. Mr Schouten's evidence was that he himself spent most of his time on the Glen Iris Estate, although not necessarily at the sales office.
Evidence was given that a large proportion of the lots at the Glen Iris Estate were sold through the sales office on the site. The Glen Iris Estate was advertised widely and members of the public were invited in the advertisements to attend at the sales office at advertised times. The opening hours of the sales office were dictated by the principals of Laurene Developments Pty Ltd. At least by the middle of 1995, the opening hours for the sales office were 10.00 am to 5.00 pm Monday to Friday and 1.00 to 5.00 pm on Saturday and Sunday. Mr Grundy and Mr Lee were rostered to attend at the site office on a "one week on one week off" basis. Mr Lee's evidence was that the roster was drawn up to take into account Mr Grundy's commitments to look after his daughter every second weekend. In the weeks when Mr Grundy was not rostered for attendance at the site office, he had no set work hours. As he was paid only by commission, the more work he put in during those weeks, the more money he was likely to earn.
Although the evidence given on behalf of the respondent was that Mr Grundy's employment was terminated primarily because of events which occurred during the Christmas 1995 holiday period, it was said by the respondent's witnesses that this represented the culmination of many other incidents of poor conduct or performance on the part of Mr Grundy over the period of his employment with ProDev Realty. The evidence was that ProDev Realty's main concern was that Mr Grundy was often not in attendance at the site office when he was rostered to be there. Mr Court had complained to Mr Buckley and Mr Schouten on a number of occasions about this. Further, there was evidence that Mr Lee had brought up the matter on a number of occasions, both with ProDev Realty's directors and with Mr Grundy himself. The Court heard evidence from both Mr Schouten and Mr Lee that Mr Grundy had been spoken to by them on many occasions about this matter. The respondent also had concerns about Mr Grundy's failure to keep the site office and the Glen Iris Estate generally in a tidy condition, and there was evidence that Mr Grundy was spoken to on a number of occasions both by Mr Lee and Mr Schouten about this matter. Mr Lee further gave evidence that Mr Grundy's paperwork relating to the real estate matters left a lot to be desired and that he had mentioned this to Mr Grundy on more than one occasion.
Mr Schouten gave evidence that when he started to receive complaints about Mr Grundy's lack of attendance at the site office he started to drop in at the office. He found that the complaints were substantiated, for Mr Grundy was often not at the office when he was rostered to be there. According to Mr Schouten, this was in stark contrast to Mr Lee's performance in this area, for Mr Lee was always there when he was rostered to be at the site office. Mr Court also gave evidence that on a number of occasions he had sent prospective buyers to the site office and Mr Grundy was not in attendance when he was supposed to be there.
The Court heard evidence that Mr Grundy and Mr Lee had been instructed to arrange for a replacement to be at the site office if they were to be absent from the office for any length of time. Mr Schouten said that he himself was always available to fill in if necessary and the Court heard from Mr David Vicary, a consultant with ProDev Realty, that he had stood in for Mr Grundy on a number of occasions when requested to do so. Further, a number of signs had been made up for the office saying that the office would be unattended for periods of between five and thirty minutes. These signs were to be placed on the site office door if the office was to be unattended for a short period only. According to Mr Lee, he used these signs when necessary but always made sure that he returned within the time stated on the notice.
Mr Grundy denied the allegations in relation to his non attendance at the site office during rostered hours. His evidence was that if he was ever not in attendance at the site office when people such as Mr Court or Mr Schouten attended there, it was because he was absent for a legitimate reason, such as showing prospective buyers around the lots. Further, he said that as there was no toilet at the site office, he regularly had to be absent in order to use the toilet facilities some distance away. Mr Grundy also said that he would leave in the late afternoon to pick up his daughter from school in Claremont and return with his daughter approximately half an hour later. He said that Mr Schouten knew of and approved of this practice. Mr Schouten's evidence was that he accepted that Mr Grundy had to go and pick up his daughter from school. He did not, however, accept that Mr Grundy did not make arrangements to have someone else present at the site office or that he did not return after leaving the office at a quarter to four. Mr Grundy said that it was often impossible to organise for a replacement to stand in for him while he went to pick up his daughter and that his daughter "came first".
Mr Schouten referred to an incident in about October 1995 when a meeting had been arranged between Mr Grundy and Mr Humbert, a co-director of a company building houses on the Glen Iris Estate. Mr Humbert arrived at the site office and Mr Grundy was not present. Mr Humbert rang Mr Schouten and asked where David Grundy was. Mr Schouten telephoned Mr Grundy at around 4.15 pm and Mr Grundy advised him that he was in Cottesloe. Mr Schouten said that he was very angry and told Mr Grundy to get back to the site office. According to Mr Schouten, Mr Grundy had indicated that he was not intending to return as there was "no point" and even though Mr Schouten specifically directed him to return as soon as possible, Mr Grundy had not returned by 6.00 pm. Mr Grundy's evidence was that he did not recall any meeting with Mr Humbert in October 1995. Mr Grundy did recall receiving a telephone call from Mr Schouten and his evidence was that he advised Mr Schouten that he was picking up his daughter from school but that he "was up against the traffic" and would be there at 6.00 pm for another pre-arranged meeting. Mr Grundy denied that he told Mr Schouten that he was in Cottesloe and that there was no point in going back at that time.
As to the allegations of untidiness, Mr Grundy denied that he was generally untidy and said that Mr Lee was meticulous and had such high standards that they were impossible for anyone to meet. As to the allegations in relation to his deficient paperwork, Mr Grundy denied that this was so.
Further in support of his case in relation to his alleged non attendance at work, Mr Grundy pointed to a number of other occasions during which the site office was unattended. In the first place, Mr Grundy said that there were regular sales meetings scheduled which all of the sales staff had to attend. These meetings took place in the Subiaco office and by the latter half of 1995 they occurred on Monday mornings. Mr Grundy said that the site office was unattended until the sales person on roster returned from the sales meeting. Mr Grundy said he was often held up after the sales meeting as he had to attend to preparing and photocopying certain documents. The evidence of Mr Schouten and Mr Lee in relation to the sales meetings was that the sales person on roster was expected to return to the Glen Iris Estate as soon as the meeting had concluded. Mr Lee said that he himself did any necessary paperwork or photocopying before the sales meeting rather than afterwards if he was the person on roster. Further, and more importantly, Mr Schouten made the point that the directors of Laurene Pty Ltd were well aware of the fact that these sales meetings were to be held on a weekly basis and consented to the office being closed for that period of time.
Mr Grundy pointed to other occasions on which the site office had remained unattended such as for functions such as lunches to celebrate birthdays or to farewell or welcome staff. Mr Schouten agreed that the site office was closed during those periods but said that this happened infrequently and it was always arranged beforehand with the directors of Laurene Developments that the site office would be closed for that period. That was, according to Mr Schouten, a very different situation from leaving the site office unattended without any approval being sought from Mr Court or Mr Wilson.
Mr Grundy denied that he was ever warned that his performance or conduct was in question in relation to the non attendance issue. Mr Schouten and Mr Lee both gave evidence that Mr Grundy was told by them on a number of occasions that he could not continue to leave the site office unattended. According to Mr Schouten, he told Mr Grundy a number of times that Mr Court was upset about this. The Court was referred to a sales meeting in the middle of 1995. Mr Lee gave evidence that after a heated meeting, the staff were asked if they wanted to "clear the air about anything". Mr Lee said that he unfortunately "gave David 14 barrels" and raised a number of concerns about Mr Grundy being "lazy", not being at the office when he needed to be and that he was untidy. Mr Grundy denied that this happened and said that this was not noted in the minutes. Mr Schouten, Mr Lee and Mr Vicary all recalled this incident. Mr Vicary remembered comments being made along the lines that Mr Grundy's attendance at the site office needed to improve and that he needed to ensure that somebody was in attendance at the office at all times.
The evidence from Mr Schouten was that some time after this sales meeting Mr Grundy acknowledged that he had been at fault and promised to improve. Some improvement was seen for a short time but gradually Mr Grundy lapsed back into his "previous bad ways".

THE INCIDENTS OVER THE CHRISTMAS 1995 HOLIDAY PERIOD

The respondent's main reason for terminating Mr Grundy's employment was that he failed to attend at the site office during the rostered hours over the Christmas/New Year holiday period in 1995/1996. Mr Grundy said that in the Christmas 1994 period, Mr Lee had been rostered to attend at the office. Mr Lee had advised him that during that period he did not attend for the full hours but only attended at the office for several hours each day. Mr Grundy's argument was that on the basis of this precedent, he was entitled to only attend at the site office for several hours a day over the holiday period. Mr Grundy tendered a letter from his ex-wife dated 6 November 1995 by which she asked Mr Grundy to have the sole care of their daughter over the Christmas holiday period so that she and her present partner could go on a holiday together. Mr Grundy said that as he had this pre-arranged commitment to his daughter, he was unable to attend at the site office for the full days rostered. Mr Grundy said that he volunteered to be the person on roster as Mr Lee had done it the previous year and because of what he said was the accepted practice established in 1994. Mr Grundy said that he arranged for a sign to be made up in the Subiaco office saying that the office was temporarily unattended and giving his mobile phone number. Mr Grundy said that Mr Buckley saw a copy of this notice on the secretary's desk or on the computer, an allegation which is denied by Mr Buckley himself. Mr Grundy said that he spent the relevant time in Mandurah with his daughter and drove to the office and spent time there for several hours each afternoon.
Mr Grundy's evidence was that on Christmas Eve a note came out to all staff saying that the directors wanted the office open during normal hours over the Christmas period. He had already made the arrangement on the basis of the precedent in 1994 and thereupon arranged for the sign already referred to, to be made up. Mr Grundy said that during this period he was contacted by Mr John Court on around 29 or 30 December 1995, asking why he was not in attendance at the office. He told Mr Court that he had made the decision based on what had happened in the previous year to only spend part time hours at the office. Mr Grundy said that he told Mr Court that he would take responsibility for this decision. Mr Grundy's evidence was that he had already contacted other land estate sales offices before making this decision and found that they only had opening hours on a part time basis for this period. Mr Grundy said that he mentioned it to Mr Lee before the Christmas period and Mr Lee had said to him "That's entirely up to you". Mr Lee denied saying this to Mr Grundy.
The evidence of the respondent's witnesses in relation to this matter is markedly different from that of Mr Grundy. The Court heard evidence from Mr Schouten, Mr Buckley, Mr Vicary and Mr Lee that ProDev Realty had received a directive from the principals of Laurene Developments Pty Ltd that the office should be opened for normal hours over the Christmas/New Year period, with the exception of Christmas Day, Boxing Day and New Year's Day. These witnesses said that this was discussed at a meeting on or about 19 December 1995, which was attended by Mr Grundy. The fact that Mr Court wanted the office opened for normal hours was discussed and there was a general discussion to the effect that although these hours might be considered to be excessive, it was up to ProDev Realty to comply with the request from Laurene Developments. Mr Grundy volunteered to attend at the office during the rostered hours. Mr Schouten said that when he pressed Mr Grundy further in relation to his availability, because of his past experience with Mr Grundy's non attendance, Mr Grundy confirmed that he would attend during the rostered hours. Mr Grundy denied that this conversation ever took place. Mr Schouten, however, was supported in his evidence by Mr Buckley, Mr Lee and Mr Vicary.
There was evidence that notices were sent out to all of ProDev Realty's clients and associates advertising that the office would be open during normal hours. An advertisement was also placed in The West Australian newspaper to that effect. Mr Grundy denies having any knowledge of that advertisement.
An incident arose during that week on 29 December when Ms Pauline Bretton was contacted by Mr Grundy from Mandurah. He asked her to arrange a courier to deliver some brochures from the site office and told Ms Bretton that he was unable to make it in time for a meeting at 12.00 noon. Ms Bretton did not have a key to enable her to collect the brochures and had to arrange to obtain a key from Mr Buckley.

Ms Bretton said that she held a drinks' evening on New Year's Eve that year which Mr Grundy attended. Mr Grundy arrived at about 6.30 pm and she asked him what had happened on the 29th. According to Ms Bretton, Mr Grundy said to her that he would be surprised if he had a job the following Monday. According to Ms Bretton, Mr Grundy said that he had other business opportunities coming up in April and he hoped he could hang on in his present job until then. Mr Grundy admits that he attended at Ms Bretton's house on New Year's Eve but denies having the conversation referred to with Ms Bretton. He suggested that Ms Bretton's memory is defective because a lot of alcohol was consumed that evening. Ms Bretton said that this conversation happened at about 6.30 pm and that she could remember distinctly that this conversation has taken place.
The main office of ProDev Realty at Subiaco was closed until 8 January 1996. A sales meeting was held on Tuesday, 9 January, which was attended by Mr Grundy. Mr Schouten's evidence was that he forcefully made his displeasure known and told Mr Grundy that it was "the straw that broke the camel's back". Mr Schouten said that he told Mr Grundy that he had been advised that contrary to his direct instructions, Mr Grundy had failed to attend at the site office during the Christmas holiday period. According to Mr Schouten, Mr Grundy said that he took full responsibility for his actions and said "Sack me if you like, I'll go now". The meeting became quite heated and after things calmed down, according to Mr Schouten, Mr Grundy said that he had had to look after his daughter during the holiday period. Mr Schouten said that he told Mr Grundy that Mr Court was difficult and very demanding but that he had every right to demand ProDev's loyalty. Mr Grundy denies that he invited Mr Schouten to sack him. Mr Grundy said that he told Mr Schouten he had been with his daughter and that he took responsibility for his actions. Mr Grundy said that nothing else was discussed at that meeting, that it was crossed off as an item on the agenda and it was not brought up at the next meeting. Mr Grundy said that he apologised for it and that nothing was said about termination at the meeting of 9 January.
Mr Vicary gave evidence that the meeting on 9 January was heated and vibrant. There was talk about sacking at the meeting and Mr Grundy had said words to the effect of "I've done wrong, sack me". Mr Grundy had mentioned his responsibilities to his daughter and had said that there was not a lot of traffic in the office during the period. According to Mr Vicary, Mr Buckley, Mr Schouten and Mr Lee had all told Mr Grundy that it was unacceptable. Mr Buckley confirmed that Mr Grundy had said that if Mr Schouten was not happy he could sack him on the spot. Mr Grundy had mentioned his commitments with his daughter. According to Mr Buckley, Mr Schouten told Mr Grundy that it was very unsatisfactory and that they would hear more about it from Mr Court and Mr Wilson. According to Mr Buckley, Mr Grundy was given every opportunity to be heard in relation to the matter and made several remarks in his own defence.
Mr Lee similarly remembered that Mr Grundy had invited Mr Schouten to sack him. Mr Lee said that Mr Grundy's excuse was that Mr Lee had not worked for the same period the year before. Each of the respondent's witnesses was of the view that the Christmas 1994 period was an entirely different set of circumstances from the Christmas 1995 period. In the latter period, ProDev Realty had received specific instructions from Laurene Developments to have the office open during normal hours and a lot of expense had been incurred in advertising to that effect. Mr Grundy had been given a specific instruction to attend at the office during normal hours and he had deliberately failed to do so. Mr Lee's evidence was that during Christmas 1994, he did not have a great deal of instructions from his principals. He was to look after any enquiries that came through, both his phones were switched through automatically to his home phone and he attended to about 60 enquiries during that period. Mr Lee's evidence was that Mr Grundy had not advised him prior to Christmas 1995 that he had to look after his daughter. Mr Lee said that he did not tell Mr Grundy that he could open over Christmas for whatever hours he wanted to. All of the evidence pointed to the fact that Mr Lee did not have any authority in any event to instruct Mr Grundy to ignore the instructions from Mr Schouten and Mr Buckley.
It appears from the evidence that at the meeting of 9 January 1995, the question of any further action against Mr Grundy was left open.

THE TERMINATION

Mr Schouten and Mr Buckley attended a meeting with the directors of Laurene Developments Pty Ltd on 18 January 1995. During this meeting, both Mr Wilson and Mr Court expressed dissatisfaction with the state of affairs over the Christmas holiday period. Mr Court remarked that "No wonder there were very few sales as there was nobody there to sell the houses". Mr Schouten and Mr Buckley were very embarrassed. Both Mr Court and Mr Wilson demanded that something be done about Mr Grundy. After the board meeting, Mr Schouten and Mr Buckley decided that Mr Grundy's employment should be terminated. It was agreed between the two of them that Mr Buckley would speak to Mr Grundy about this.
Mr Buckley said that he went to the site office the following morning and talked to Mr Grundy. He said that he told Mr Grundy that the board meeting had been pretty rough on Mr Schouten and Mr Buckley. Mr Court had made it clear that the situation was unsatisfactory. Mr Buckley said that he told Mr Grundy it was not the first time that the matter of his non attendance had been raised. Mr Buckley said that it was best that Mr Grundy and ProDev Realty should go their own separate ways. According to Mr Buckley, it was an amicable meeting which lasted about half an hour and at which Mr Grundy had plenty of opportunity to speak. Mr Grundy's evidence was that Mr Buckley had "sacked him on the spot" and that he did not have any time to make a response. Mr Buckley said that at this meeting he encouraged Mr Grundy to stay on at work for a while to "chase up any leads he had for sales". Mr Grundy had told him that he would think about it. Mr Grundy said that he worked that weekend and was not permitted to attend the sales meeting on the following Monday. His last day at work was the Tuesday. The question of a notice period appears not to have been discussed between the parties, other than to the extent just mentioned.

THE CREDIBILITY OF THE WITNESSES

There was a marked difference between the version of events put forward by Mr Grundy and the versions put forward by the witnesses called on behalf of the respondent. Although these things are not decided by weight of numbers, on the balance of probabilities I prefer the version of events put forward on behalf of the respondent. There was nothing about the evidence or the demeanour of the respondent's witnesses which caused me concern. There were, however, some things about Mr Grundy's evidence which caused me to question what he said. He appeared to contradict himself on a number of occasions and sometimes chose to stretch the facts to his own advantage. As a minor example, in his evidence in chief he said that he was sometimes absent to go the toilet which was three kilometres away. During cross examination, he admitted that the toilet was in fact 1.3 kilometres away but said that it amounted to "an almost three kilometre round trip" to go there. Further, on several occasions he denied that certain conversations had happened and then later on admitted that certain parts of the conversations had occurred. On several occasions during cross examination he denied that events had taken place because they were either not in writing or had not been minuted. In each case there was ample evidence from the respondent's witnesses that the incident or instruction had occurred but had not been in writing. To the extent that the versions of events differ, therefore, I prefer the evidence of the respondent's witnesses over that of Mr Grundy.

WAS THERE A VALID REASON FOR THE TERMINATION?

In my view there was clearly a valid reason for the termination of Mr Grundy's employment within the meaning of those words in Section 170DE(1). Mr Grundy had been instructed to attend at the site office during normal working hours over the Christmas 1995 holiday period and on his own admission did not work more than a few hours each day. It appears that Mr Grundy deliberately chose to disregard the specific instructions given to him by his principals. He was well aware of the fact that the directors of Laurene Investments Pty Ltd took a hard line on these matters and that it was important from ProDev Realty's point of view to comply with the wishes of Mr Court and Mr Wilson.

WAS THE TERMINATION HARSH, UNJUST OR UNREASONABLE?

It is my view that the termination of Mr Grundy's employment was not harsh, unjust or unreasonable within the meaning of the words in Section 170DE(2). Mr Grundy had been made aware on a number of prior occasions that his failure to attend at the site office during his rostered hours was a cause for grave concern for both his employers and the principals of Laurene Investments Pty Ltd. Although he maintains that there was an established precedent set in the Christmas 1994 period that the person on roster could attend on a part-time basis only, it was made clear to Mr Grundy that what was expected of him over this Christmas period was for him to attend full time on the hours rostered. Although Mr Grundy said that he could not let his daughter down, he should have alerted his employers to the fact that he was unable to work full time over the Christmas period so that alternative arrangements could be made. It appears to me that Mr Schouten had been very sympathetic to Mr Grundy's responsibilities to his daughter in the past and the evidence pointed to ProDev Realty having been very flexible in accommodating Mr Grundy in this regard. In this case there was no emergency. Mr Grundy knew from as early as 6 November 1995 that he would have the sole care of his daughter relating to the Christmas period but chose not to raise this with his employers as an issue relating to the Christmas period. It is clear that Mr Grundy made the decision himself to only attend at the office on a part time basis. He said at the time and still says that he would take full responsibility for making that decision. In these circumstances I do not consider that the termination of his employment could be said to be harsh, unjust or unreasonable. There is evidence from Ms Bretton that Mr Grundy knew at the time that he was in the wrong and that he may lose his job because of it.

WAS MR GRUNDY GIVEN AN OPPORTUNITY TO BE HEARD?

Mr Grundy alleges that he was not given an opportunity to respond to allegations against his conduct or performance contrary to the provisions of Section 170DC. It is my view that Mr Grundy was given ample opportunity to put his case to his employers. He spoke to Mr Buckley and Mr Court during the Christmas period in late December 1995. He also gave his side of the story at the meeting on 9 January 1996. At that meeting the question of what was to happen with Mr Grundy's future employment was left open. At his interview with Mr Buckley on 18 January 1996 there was further time for discussion, although the decision to terminate had been made by then. The fact remains that Mr Grundy does not deny what happened during the Christmas period. In fact he has said on a number of occasions that he accepts responsibility for it. He told his employers of his reasons for behaving in the way he did, namely that he considered it to be an established precedent and that he had the care of his daughter. This was all done prior to the decision to terminate being made. Further, Mr Grundy was warned on a number of occasions prior to the Christmas period that his performance or conduct in relation to non attendance during rostered hours was a cause for concern. In these circumstances I do no consider that there has been a breach of the provisions of Section 170DC.

WAS ADEQUATE NOTICE GIVEN?

As Mr Grundy is over 45 years of age, has completed at least two years' continuous service with ProDev Realty and has been employed by the respondent for more than one year but not more than three years, he is entitled to a period of notice of three weeks under the provisions of Section 170DB. This is not a case in which the employer alleges that the employee is guilty of serious misconduct. ProDev Realty allowed Mr Grundy to continue working until some weeks after the matters complained of occurred. In these circumstances, I consider that the employer should have given Mr Grundy three weeks' notice of termination or three weeks' payment in lieu of notice. The only evidence regarding notice was that Mr Buckley encouraged Mr Grundy to continue working on such leads as he already had relating to potential customers. The evidence is that Mr Grundy finished work a few days after he was told his employment was to be terminated. It is clear that Mr Grundy received some commission after his employment was formally terminated but it is unclear whether or not those commissions related to work done after Mr Buckley told him his employment was terminated.
The parties agreed that Mr Grundy earned an average of $4,164 gross per month. This amounts to an average weekly gross wage of $971.60 based on a 30-day month. Over a three week period, Mr Grundy should have been paid a total amount of $2,914.80. From this should be deducted any commission Mr Grundy earned in his employment in relation to work carried out after 19 January 1996.
The appropriate orders are therefore:
1.The respondent pay to the applicant the sum of $2,914.80 minus the amount of any commission earned by Mr Grundy in relation to work carried out after 19 January 1996, within 14 days of the date of this order.
2.There be liberty to apply in relation to the calculation of the amount of compensation to be paid in lieu of notice, if the parties cannot agree this sum.
3.        The application is otherwise dismissed.
I certify that this and the preceding eighteen (18) pages
are a true copy of the reasons for decision of
Judicial Registrar Boon as recorded in the transcript
and revised by the Judicial Registrar
Associate:
Dated:
APPEARANCES
Applicant in person
Counsel appearing for the respondent:               Ms S E O'Brien
Solicitors for the respondent:  Talbot & Olivier
Dates of Hearing:  6, 7 and 8 May 1996
Date of Judgment:  30 May 1996

[1996] IRCA 239

30 May 1996