Halliday v Beeson

[1996] IRCA 246

DECISION NO:  246/96

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether TERMINATION at the initiative of the employer - whether to award COSTS against applicant under Section 347.

Industrial Relations Act 1988 ss 170EA, 170CB, 170ED, 170ED(1), 347
Termination of Employment Convention, Article 3

Mohazab v Dick Smith Electronics Pty Ltd, unreported, Full Court, Industrial Relations Court of Australia No. 625/95, 28 November 1995
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
Scott v Access Industries for the Disabled (1994) 58 IR 172
Canceri v Taylor (1994) 1 IRCR 120
Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437
Keller v QBE Group (Investments) Limited, unreported, Gray J, Industrial Relations Court of Australia No. 325/95, 5 June 1995
Thompson v Hodder (1989) 29 IR 339
Lee v Manuela Goldsmith trading as Goldie's Muffins/Goldie's Gourmet, unreported, Ryan JR, Industrial Relations Court of Australia 154/94, 22 December 1994

Alana Maree HALLIDAY v Mark John BEESON -  WI 1082 of 1996

Before:                    BOON JR

Place:            PERTH

Date:                        24 APRIL 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY     

WI 1082 of 1996

B E T W E E N:  

Alana Maree HALLIDAY
           Applicant

A N D:  

Mark John BEESON
           Respondent

MINUTE OF ORDERS

24 APRIL 1996             BOON JR

THE COURT ORDERS THAT:

1. 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
WESTERN AUSTRALIA DISTRICT REGISTRY

WI 1082 of 1996

B E T W E E N:  

Alana Maree HALLIDAY
           Applicant

A N D:  

Mark John BEESON
           Respondent

REASONS FOR DECISION

24 APRIL 1996  BOON JR

1. This is an application under Section 170EA of the Industrial Relations Act 1988. The application was filed by the applicant in the Australian Industrial Relations Commission on 22 February 1996. By certificate dated 13 March 1996, Commissioner Blair certified in accordance with subsection 170ED(1) of the Industrial Relations Act that it had been unable to settle this matter by conciliation within a reasonable period and that the parties in this matter had not elected to have the matter dealt with by consent arbitration. The Commission then referred the matter to the Court pursuant to the provisions of Section 170ED of the Act. The parties attended a directions hearing before Deputy District Registrar Richardson on 11 April 1996. Deputy District Registrar Richardson directed that the matter be set down for hearing of the preliminary question of whether or not there was a "termination at the initiative of the employer" in this matter.

THE EVIDENCE

1. Mr Beeson, the respondent, is a pharmacist and the proprietor of a pharmacy at Bullcreek known as "Pharmacy Plus Cosmetics".  From 1978 until 16 October 1995 he operated the pharmacy in partnership with another.  That partnership dissolved on 16 October 1995 and all of the employees of the pharmacy were paid their entitlements such as holiday pay.  Mr Beeson commenced the conduct of the business on his own account on 17 October 1995.

2. The applicant, Ms Halliday, had been employed at the pharmacy since 1989 as a pharmacy assistant, first by the partnership and subsequently by Mr Beeson.

3. Ms Halliday applied for a position with her present employer as a dispensary assistant on 7 December 1995.  She heard she had been successful in her application on Friday, 8 December 1995.  She considered the matter over the weekend and when she returned to work on Monday, 11 December, she asked to speak to Mr Beeson.  Her new employer had indicated to Ms Halliday that he was willing to work in with her in relation to a starting date for her new position.  Ms Halliday told Mr Beeson on 11 December 1995 that she was resigning to take up a new position.  The conversation was amicable.  There is a conflict of evidence as to what Mr Beeson said to Ms Halliday on 11 December 1995.  Ms Halliday said that Mr Beeson did not give her a definite finishing date but that he said she was to speak to Betty Tilly, the respondent's bookkeeper, who was away on holiday until 18 December 1995.  Ms Halliday said that she indicated to Mr Beeson on 11 December 1995 that she would work through to the end of December.  She said that she thought she was doing the right thing by offering to do that as the last few weeks of December were always very busy.  According to Ms Halliday, Mr Beeson indicated to her that he wanted her to work until the end of December.

4. According to Mr Beeson, on 11 December 1995 in the course of his conversation with Ms Halliday he asked her to continue to work until 24 December 1995 and she agreed.  Mr Beeson said, however, that Ms Halliday should check with Ms Tilly when she returned from leave as there may be a problem with the rosters if she finished on that date.  Mr Beeson denies that he told Ms Halliday that she could continue to work until the end of December 1995.

5. Ms Tilly gave evidence that when she returned from her holidays on 18 December 1995, Mr Beeson told her that "Alana had resigned".  He told Ms Tilly that 24 December was mentioned as a finishing date but that he had told Ms Halliday that he would discuss it with Ms Tilly.  Ms Tilly spoke to Ms Halliday on 18 December 1995.  According to Ms Tilly, Ms Halliday said "I thought I'd go on the 28th".  Ms Tilly said to Ms Halliday "That's the middle of the week" and that she would have to speak to Mr Beeson about it.  According to Ms Tilly, Ms Halliday said that she didn't want to work on Friday the 29th as she was going to leave that day for a holiday in Dunsborough.  Ms Halliday conceded that she did not want to work on Friday, 29 December as she had been rostered to work between the hours of 1.00 and 9.00 pm.  She did not want to leave at 9.00 pm as it was her last day and as she was due to leave in the late afternoon to travel to Dunsborough.  Both Ms Tilly and Ms Halliday agreed that Ms Tilly told Ms Halliday she should finish on 24 December 1995.  Ms Halliday gave evidence that she felt she was bullied by Ms Tilly into leaving on 24 December against her will.  Ms Tilly and Mr Beeson both said that 24 December was chosen as it was the most convenient date for the respondent.  Ms Halliday was not satisfied with this as she had arranged to start her new job on 2 January 1996.  Her evidence was that she could not afford to be without pay for one week.  She mentioned this to Ms Tilly who said that she had 2½ days leave accrued to her.  Ms Halliday had wanted to work on Wednesday 27 and Thursday 28 December 1995 and be paid for the public holidays of 25 and 26 December.  Mr Beeson did not agree to this.  In any event, Ms Halliday's evidence was that she contacted her new employer and arranged to start in her new job on Wednesday 27 December 1995.

6. Ms Halliday discussed the matter with a friend after speaking to Ms Tilly on 18 December 1995.  On 20 December 1995 she provided her employer with a letter dated 21 December 1995 reading as follows:

   "Dear Mark

   I would like to advise you that I will be resigning on Friday, 29 December 1995.

   I have had the opportunity to further my dispensing experience and believe this is the direction I want my career in the Pharmacy Industry to go.

   I would like to thank you for your support over the last 8½ years, the decision wasn't an easy one and I'll certainly miss everyone at Bullcreek but I'm sure you'll agree its a step in the right direction for me to achieve my personal goals.

   Yours sincerely

   Alana Halliday"

7. Ms Tilly told Ms Halliday that the terms stated in her letter were unacceptable to Mr Beeson.

8. During cross-examination, Ms Halliday conceded that she had resigned on 11 December 1995, and that the letter of 21 December 1995 was a written confirmation of a resignation that had occurred ten days before.  It was agreed that the only matter which was in dispute was the date on which she was to finish her employment with Mr Beeson.

9. I find on the evidence that in the conversation that took place between Mr Beeson and Ms Halliday on 11 December 1995, no final date for the conclusion of Ms Halliday's employment was agreed.   Rather, it appears that several dates may have been mentioned but that the matter was not to be decided finally until Ms Tilly returned on 18 December 1995.  Once Ms Tilly returned, although Ms Halliday wanted to finish on 28 December 1995, it was made clear to her that this was unacceptable to Mr Beeson and it was arranged that Ms Halliday was to finish on 24 December 1995.

TERMINATION AT THE INITIATIVE OF THE EMPLOYER

1. Pursuant to Section 170EA of the Act, an employee may lodge with the Commission an application for relief in respect of "termination of his or her employment". As stated earlier, the issue in this matter is whether or not Mr Beeson terminated the employment of Ms Halliday.

2. The expression "termination of employment" is not defined in the Act. Section 170CB of the Act, however, states that "an expression has the same meaning in this Division as in the Termination of Employment Convention". The Convention appears as Schedule 10 to the Industrial Relations Act. Article 3 of the Convention states:

   "For the purposes of this Convention, the terms 'termination' and 'termination of employment' mean termination of employment at the initiative of the employer."

3. The meaning of the expression "termination of employment at the initiative of the employer" was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd, unreported, Industrial Relations Court of Australia No. 625/95, 28 November 1995.  The Full Court said at page 10-11 of its decision:  

   "Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination.  It addresses the termination of the employment relationship by the employer.  It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee.  Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship."

4. Further, at page 12 the Full Court said:

   "In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.  That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."

5. In this case it was clearly not the employer who took the initiative in terminating the employment relationship.  The parties had an amicable and long standing working relationship.  Ms Halliday herself made the decision to end her employment with Mr Beeson because she had decided to accept another job.  Here there was no action by the employer which could be said to be the principal determining factor in terminating the employment relationship.  It was clearly Ms Halliday herself who terminated the employment.  Although there was some dispute or misunderstanding between the parties as to what was to be Ms Halliday's final day with Mr Beeson, Mr Beeson's action in deciding that Ms Halliday should finish on 24 December 1995 instead of on 28 December 1995 could not, in my view, be said to constitute a "termination at the initiative of the employer".  It was Ms Halliday's resignation on 11 December 1995 which terminated the employment relationship.  If she had not resigned on that date she would have continued in her employment with Mr Beeson.

6. In these circumstances, I find that there was no termination at the initiative of the employer and the application must be dismissed.

COSTS

1. Counsel for the respondent, Ms S Brown, submitted that it was appropriate in this case to make an order for costs against the applicant on the basis that the proceedings were instituted without reasonable cause. Section 347, subsection 1, of the Industrial Relations Act states:

   "A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first mentioned party instituted the proceeding vexatiously or without reasonable cause".

2. It is not contended on behalf of the respondent that Ms Halliday instituted the proceedings in this matter vexatiously.  I find that Ms Halliday was not motivated by malice in issuing these proceedings.  She clearly felt aggrieved in that she considered that her employer cut short her period of notice by one week.  Ms Halliday's position was that she was a long standing employee and she did her best to take her employer's interests into account in advising him at the earliest opportunity that she was resigning.  Ms Halliday argued that she was terminated at the initiative of the employer in that she felt there had been an agreement that she was to finish at the end of December and Mr Beeson, after she had made her arrangements with her new employer, changed her finishing date to 24 December 1995.

3. Counsel for the respondent relies on the case of Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 where his Honour Wilcox CJ said at page 264-265:

   "It seems to me that one way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success.  If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as 'being without reasonable cause'.  But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause"

4. These dicta have been followed in other cases in this Court, including Scott v Access Industries for the Disabled (1994) 58 IR 172 (Beazley J), Canceri v Taylor (1994) 1 IRCR 120 (Moore J), Andrews v Uniting Church in Australia Frontier Services t/a Old Timers (1995) 60 IR 437 (Gray J). The respondent argues that as there was a clear unequivocal resignation in this matter and not a termination at the initiative of the employer, the applicant was doomed to fail and the proceedings were therefore instituted without reasonable cause. Further, Ms Halliday acknowledges that she received a letter from Messrs Dwyer Durack, the solicitors for the respondent, dated 18 March 1996 which states in part:

   "As Ms Brown outlined during the course of this conference, we will argue, should this matter be brought before the Industrial Relations Court of Australia, that since the termination of your employment occurred at your initiative rather than at the initiative of your employer this is not an application properly brought under Section 170EA of the Industrial Relations Act 1988 (Commonwealth). We will argue further that it is an application instituted vexatiously or without reasonable cause."

   We are obliged to put you on notice that should the Court agree with our arguments on this point we will apply to the Court for an order that you pay our client's costs in respect of proceedings before the Industrial Relations Court of Australia under Section 347 of the Act."

5. Ms Halliday was unrepresented in these proceedings.  She says that she received advice from several quarters, including the Western Australian Industrial Relations Commission, that she should bring her proceedings in this Court.  Further, she says that once she received the letter from the respondent's solicitors dated 18 March 1996, she telephoned the Australian Industrial Relations Commission and was advised that not only could she bring the proceedings on her own without any cost to herself, but she could not be ordered to pay the respondent's costs unless she had acted with malice.  Ms Halliday maintains that she was treated unfairly by her employer in being forced to finish her employment one week earlier than she had intended and that that is why she brought the present proceedings.

6. In cases of this nature it is always difficult to balance the interests of the parties.  As I have said, I find that Ms Halliday has not been motivated by any malice in bringing these proceedings.  Although there is a power to order costs in cases in which proceedings were instituted without reasonable cause, it appears that the exercise of that power is a discretionary one.  I refer in this regard to the case of Keller v QBE Group (Investments) Limited, unreported, Industrial Relations Court of Australia No. 325/95 in which Gray J said at page 11:

   "Accordingly, I am of the view that the notice of motion was filed without reasonable cause.  In the exercise of my discretion as to costs, I propose to order the applicant to pay the respondent's costs of that motion."

7. Further, in the case of Thompson v Hodder (1989) 29 IR 339 at 341 the Full Court (Woodward, Northrop & Ryan JJ) said:

   "It is apparent from these authorities that an applicant who has the benefit of the protection of s.347 will only rarely be ordered to pay the costs of a proceeding in exceptional circumstances."

8. This Court has been reluctant to award costs against unrepresented applicants unless there have been exceptional circumstances.  I refer to the decision of Lee v Manuela Goldsmith trading as Goldie's Muffins/Goldie's Gourmet, unreported, Industrial Relations Court of Australia No. 154 of 1994 where Ryan JR said at page 5:

   "I am not satisfied that Ms Lee instituted this proceeding vexatiously and to harass Mrs Goldsmith.  Furthermore, I am not satisfied that Ms Lee instituted the proceedings without reasonable cause but if I were wrong in that respect I would not in any event exercise the discretion to order costs against Ms Lee.  She was unrepresented and she took advice both from the state authority Wageline and the national organisation Jobwatch.  I am not proposing to make an order as to costs."

9. In this case Ms Halliday was unrepresented and took advice from both the Western Australian Industrial Relations Commission and the Australian Industrial Relations Commission.  For these reasons, I do not consider it appropriate to exercise my discretion to award costs in this case.  I make an order dismissing the application.  There is no order as to costs. 

   I certify that this and the preceding ten (10) 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 Brown
   Solicitors for the respondent:  Dwyer Durack

   Dates of Hearing:  16 April 1996

   Date of Judgment:  24 April 1996