Happe v Orestes Pty Ltd T/as Bayswater Hotel

[1997] IRCA 5

DECISION NO:5/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION of EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether valid reason for termination - whether procedural fairness - COMPENSATION.

Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170EA, 170DE(1) & 170DC

Workplace Relations Regulations (formerly Industrial Relations Regulations) regulation 30B

Reed v Blue Line Cruises Ltd (unreported), IRCA 571/96, Moore J

MARGARET ANGELINE HAPPE v ORESTES PTY LTD T/as BAYSWATER HOTEL

WI 1449 of 1996

Before  :          BOON JR

Place  :          PERTH

Date of Judgment               :          17 JANUARY 1997

IN THE INDUSTRIAL RELATIONS COURT   )
OF AUSTRALIA  )
WESTERN AUSTRALIA DISTRICT REGISTRY        )

WI 1449 of 1996

B E T W E E N:  

MARGARET ANGELINE HAPPE

Applicant

A N D:  

ORESTES PTY LTD T/as BAYSWATER HOTEL

Respondent

MINUTE OF ORDERS

17 JANUARY 1997  PERTH  BOON JR

THE COURT ORDERS THAT:

1. The respondent pay to the applicant the sum of $5,200 by way of compensation for the unlawful termination of her employment within 14 days of the date of this Order.

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 1449 of 1996

B E T W E E N:

MARGARET ANGELINE HAPPE

Applicant

A N D:  

ORESTES PTY LTD T/as BAYSWATER HOTEL

Respondent

REASONS FOR DECISION

17 JANUARY 1997  BOON JR

This is an application under section 170EA of the Workplace Relations Act 1996 for compensation arising out of the alleged unlawful termination of the applicant's employment by the respondent.

The applicant, Ms Margaret Happe, alleges that the provisions of the Act have been breached in a number of ways. In the first place, she alleges that there was no valid reason for the termination of her employment connected with her capacity or conduct or the respondent's undertaking, establishment or service as required by the provisions of section 170DE(1) of the Act.

Secondly, Ms Happe alleges that she was given no opportunity to respond to allegations against her conduct or performance as required by the provisions of section 170DC of the Act before her employment was terminated. 

The respondent, the Bayswater Hotel, denies these allegations.  Further, the respondent states that the applicant is excluded from the operation of sub-divisions B, C, D and E of Division 3 of Part VI of the Act as she was a "casual employee engaged for a short period" within the meaning of sub-regulation (3) of regulation 30B of the Workplace Relations Regulations.  It is contended by the respondent that this court has no jurisdiction to hear and determine Ms Happe's application.

BACKGROUND

The court heard evidence from Mr Charles Letizia, a director of Orestes Pty Ltd which owns and operates the Bayswater Hotel.  The Bayswater Hotel operates a TAB (Totalisator Agency Board) agency on its hotel premises.  Orestes Pty Ltd is the franchisee of the Bayswater Hotel TAB operation.  Under the terms of the franchise the Bayswater Hotel must operate under the TAB regulations.  A licence was issued to the Bayswater Hotel by the TAB.  A TAB manual was tendered in evidence.  That manual was made available to all staff members at the Bayswater Hotel TAB agency, including Ms Happe.  The manual clearly states that certain activities are prohibited by the TAB.  These activities include illegal bookmaking, credit betting and betting by staff members whilst on duty at the TAB.  Mr Letizia gave evidence that if the staff of his TAB agency were to breach those rules, its licence would be placed in jeopardy.  Despite this, there was evidence that a certain amount of credit betting and staff betting occurred, some of it with Mr Letizia's consent, during the course of Ms Happe's employment by the Bayswater Hotel.  The TAB agency was formerly managed by Mr Ross Ashcroft, a close friend of Mr Letizia.  Mr Ashcroft allowed a certain amount of credit betting and engaged in betting himself whilst on duty.  Mr Letizia himself sanctioned credit betting over the telephone by two "VIP" customers.  Those two customers would regularly telephone the Bayswater TAB and place bets over the telephone without paying for them.  They would then come into the agency during the week and pay their debts.  Further, a small number of Mr Letizia's close friends were allowed by him to place bets on credit.  Mr Letizia's evidence was that this was a common occurrence in TAB agencies and the Totalisator Agency Board turned a blind eye to such activities.  In addition, Mr Letizia permitted staff to place bets while on duty in certain limited circumstances such as on the Melbourne Cup and for one specific race per week.  Mr Letizia's evidence was that other than that he did not sanction staff betting on duty as there was nobody to police the staff if they bet on credit.  He had had trouble with two previous staff members who were eventually prosecuted by the police for incurring unauthorised debts by betting on credit whilst on duty at the Bayswater TAB.

Ms Happe gave evidence that in March 1996 she became aware through a friend that a job would be coming up at the Bayswater TAB.  Her friend took her to see Mr Ashcroft.  He told her that his employee would be leaving in May and it was arranged that Ms Happe would commence training for the job.  Between March and when she finally commenced paid employment with the respondent in May 1996 Ms Happe worked a few days per week in the agency.  She attended a TAB instruction course at her own suggestion and paid the course fee out of her own pocket.  Although it appears that Ms Happe put in a considerable number of days of work at the TAB before she started paid employment, she was not paid for that period of training apparently because Mr Letizia did not believe in paying people during their period of training.  Mr Ashcroft said that he felt bad about the number of unpaid hours Ms Happe put in and on several occasions he gave her $50 out of his own pocket. 

Ms Happe started her paid employment on Monday, 13 May 1996.  She replaced Marie Jenkins, the former employee.  Mr Letizia was unable to provide much information about the terms and conditions of Ms Happe's employment other than that in his view she was a casual employee as all employees at the Bayswater Hotel are called casual.  By this he meant that they were not paid holiday pay or sick leave and were given a higher hourly rate of pay to make up for the loss of those benefits.  Mr Letizia, however, had no knowledge of what was discussed with Ms Happe prior to the commencement of her employment. 

Mr Ashcroft gave evidence that very little was discussed by him with Ms Happe before she commenced employment other than that she was to "take over Marie Jenkins' hours".  He showed her the time and wages book and told Ms Happe that she would work the hours that "Marie used to do".  Mr Ashcroft was somewhat vague about exactly what was discussed.  It is clear that Ms Happe did not receive sick pay or holiday pay.  Mr Ashcroft gave evidence that on average Ms Happe worked four or five days per week, although they were not full days.  Mr Ashcroft said that he did a roster once a week in consultation with Ms Happe.  If Mr Ashcroft wanted more time off he would ring Ms Happe and discuss it with her and then write the changed hours on the roster.  He said that but for Marie Jenkins leaving her employment, Ms Happe would not have been needed by him to work in the TAB.  It is clear from the evidence of both Mr Ashcroft and Ms Happe that the two of them divided the hours required to be worked between them.  There were two or three other employees who could be called in in an emergency but they rarely worked in the TAB agency.  Mr Ashcroft and Ms Happe on the other hand were the two regular employees.  Ms Happe was given a set of keys when she started her paid employment and she kept those keys until they were collected from her after the last day on which she worked for the Bayswater Hotel.

Mr Ashcroft admitted that he used to credit bet whilst on duty.  Mr Letizia was unaware of this until immediately prior to Mr Ashcroft's dismissal in July of 1996.  Ms Happe said that she was uneasy about Mr Ashcroft's credit betting as she had been taught at the TAB course that this was not permissible.  When she raised it with Mr Ashcroft he dismissed her concerns and said that he ran the TAB agency the way he saw fit.  Ms Happe did not raise the question with Mr Letizia until an incident occurred in July.  Ms Happe arrived at work on the morning of 17 July 1996 to find that there was $500 less in the tills compared with the balance written down by Mr Ashcroft the previous evening.  As Ms Happe was concerned that she may be held accountable for the discrepancy she called Mr Letizia and told him about it.  Ms Happe said that she went home and at 2:15 pm Mr Letizia rang her and asked if she would work extra hours as Mr Ashcroft would not be working at all the next day.  According to Ms Happe, Mr Letizia said that "Ross is not allowed behind that counter ever again". 

It was the evidence of both Mr Letizia and Mr Ashcroft that Mr Letizia spoke to Mr Ashcroft about the discrepancy.  It was discovered by Mr Letizia that there was in fact a much greater discrepancy than in the books, to an amount of about $12,000.  Mr Ashcroft admitted to Mr Letizia that he had been credit betting and that he owed over $9,000.  When asked about the other $3,000 Mr Ashcroft said that he himself had not incurred that debt but offered to pay for it.  Mr Ashcroft apparently hinted to Mr Letizia at that time that he should watch Ms Happe as she was the only other person who had access to the TAB tills.  This was not stated to Ms Happe.  Ms Happe was not aware of the size of the discrepancy until after her employment was terminated.  In fact, it was not until the hearing of this matter that Mr Letizia, after Mr Ashcroft gave evidence, found out that Mr Ashcroft paid the remaining $3,000 because it represented money lent by him from TAB funds to regular customers whose names were kept on a secret list.  This secret list of debtors was in addition to another "unofficial" list of debtors written down on the back of used TAB tickets, plus an official list noted in the agency's books as the "TP" list.  Mr Letizia was aware of the TP list and the unofficial list, but not the secret list of debtors.  Mr Ashcroft paid the $12,000 and left his employment immediately. 

For the next few weeks Ms Happe worked much longer hours in the agency whilst at the same time training a young 21 year old employee in the Bayswater Hotel bottle shop, Mr Craig Ellie.  For one and a half to two weeks Ms Happe also showed Mr Ellie how to do the TAB work.  At the same time Mr Ellie was still working at the bottle shop.  Mr Letizia gave evidence that after he dismissed Mr Ashcroft he said to Ms Happe and Mr Ellie that credit betting and staff betting would not be tolerated.  Although Mr Letizia gave evidence that after that occasion over the next two weeks he told Ms Happe on at least four occasions that staff betting was not allowed, Mr Letizia when pressed was unable to give any particulars of the times or manner in which he gave Ms Happe those further instructions.  Ms Happe denies that he talked to her about it at all after the first occasion following Mr Ashcroft's dismissal.  Mr Ellie gave evidence that Mr Letizia told him on several occasions that staff betting and credit betting were not allowed, but he was unclear as to whether Ms Happe was present on each occasion. 

Mr Ellie gave evidence that on the first Saturday after he commenced his training Ms Happe placed a bet whilst on duty, and in Mr Ellie's presence.  Ms Happe admits that this incident occurred.  According to Mr Ellie he told Mr Letizia the following Monday about this incident. Mr Ellie said that over the next week or two he saw Ms Happe place four or five bets, and each time he told Mr Letizia about it.  According to Mr Ellie, Mr Letizia said to him "I'll take care of it".  On one occasion, according to Mr Ellie, Ms Happe cancelled a bet and told him she couldn't afford to place the bet as it was $45.  A ticket was produced to this court and tendered in evidence as being the ticket cancelled by Ms Happe on this occasion.  However, on Mr Ellie's evidence he did not retrieve the ticket until about four weeks later when Mr Letizia told him to find it when preparing for the present court hearing.  Ms Happe denies that she cancelled the ticket for a bet for herself and said that she regularly cancelled tickets when people could not afford to place bets.  Ms Happe denies that she placed any further bets other than the one bet on the Saturday to which she has admitted.  She said that she regularly placed bets for two elderly gentlemen who drank in the bar of the Bayswater Hotel every day and who would give her money to place on bets for them.  As Mr Ellie didn't question Ms Happe about the further debts he saw her place, it is quite possible that the bets he referred to in his evidence as being placed by Ms Happe were in fact bets placed by Ms Happe on behalf of the two customers of the hotel. 

Mr Letizia said that after Mr Ashcroft was dismissed he gave Ms Happe a new float on Friday, 19 July 1996.  According to Mr Letizia, between that date and the last date on which Ms Happe worked two weeks later, there were discrepancies in the till which by the end of the two week period amounted to around $200.  Mr Letizia said that from the day Ms Happe finished work there were no more discrepancies other than a few dollars in the books.  Mr Letizia said that after Mr Ellie first told him about Ms Happe betting on duty he asked Mr Ellie to keep an eye on her and report to him.  Mr Letizia said that he did not speak to Ms Happe about betting on duty or counsel her about it.  He said that from his point of view there was no urgency to do something although it was troubling him.  He said that he was unable to act on the advice from Mr Ellie as he needed Ms Happe to work at the agency whilst she was training Mr Ellie to take over Mr Ashcroft's job.  He was unable to dismiss Ms Happe when he first heard about the betting on duty because he had nobody else to do the work.  There was no pool of trained operators.  At that time he relied on Ms Happe to be available on a day to day basis. 

Ms Happe last worked at the agency on Friday, 2 August 1996.  On the next day she was ill and her flatmate rang the agency to advise that Ms Happe could not work on that day.  Mr Letizia arranged for somebody to collect Ms Happe's keys from her home.  According to Mr Letizia, as he was unsure as to whether or not Ms Happe would be well enough to work on the following Monday, he arranged for Mr Ellie to open up the agency on that day.  Ms Happe telephoned Mr Letizia's residence on Sunday morning and spoke to Mrs Letizia.  Mr Letizia was asleep when she rang.  Mrs Letizia woke Mr Letizia who, on his evidence, told her to tell Ms Happe that she would not be working on the Monday as he had arranged for somebody else to work on that day.  According to Ms Happe, Mrs Letizia told her that Charlie had arranged for somebody else to open up and that Ms Happe would not be working any more.  Mr Letizia denies that this was said but as he did not hear the telephone conversation and Mrs Letizia was not called to give evidence, I accept Ms Happe's version of that conversation. 

According to Ms Happe, on the morning of Monday, 5 August 1996 she rang Mr Letizia at work to find out what was going on.  Ms Happe said that Mr Letizia told her that there was a discrepancy of between $2,700 and $3,200 in the books.  Ms Happe asked if he was accusing her and Mr Letizia said no but there was a problem.  According to Ms Happe, she asked if she still had a job and Mr Letizia said "possibly not, no".  A meeting was arranged between them for the next day.  Ms Happe then contacted her lawyer to find out her rights.  She telephoned Mr Letizia again on the afternoon of Monday, 5 August 1996 and told him that she had sought advice from a lawyer and asked for the Tuesday meeting to be postponed to the Wednesday as she wanted her lawyer to be present.  According to Ms Happe, there was no reference to credit betting or betting on duty in either of those telephone conversations on Monday, 5 August 1996.  Mr Letizia said that he was unavailable to attend a meeting on the Wednesday. 

Mr Letizia said that on the morning of 3 August 1996 he had planned to sit down with Ms Happe and talk to her about the operations of the TAB.  According to Mr Letizia he was concerned about the discrepancy of around $200 in the books and although he did not have enough evidence to accuse Ms Happe, and because of past experience with others he was very careful not to accuse her, he wanted to speak to her about it.  Mr Letizia's evidence was that he spoke to Ms Happe about betting on duty in one of the telephone conversations on Monday, 5 August 1996.  However, Mr Letizia admitted that in the telephone conversations he had with Ms Happe he became agitated and said that this was because "Margaret had the ability to wind me up during those conversations".  He said that he was agitated because all he wanted to do was "to sit with her for 15 minutes to discuss it and that instead she brought in a lawyer".  Mr Letizia said that he did recall that on either the second or the third telephone conversation he had with Ms Happe she repeatedly asked him the question "do I have a job" and on most occasions he answered that she did but on the last conversation he became very agitated and said "no, possibly not".  Mr Letizia's evidence was however that he did not fully remember the details of the telephone conversations that he had with Ms Happe. 

At around this time some correspondence was exchanged between the two parties.  After his second telephone conversation with Ms Happe on 5 August 1996 Mr Letizia wrote her a letter stating in part:

"Dear Margaret

As you are aware the TAB operation has incurred a loss of a considerable amount of money.

As it is my position as managing director of the TAB and hotel I am in the process of carrying out a thorough investigation of the TAB trading for the last six months".

The letter goes on to make reference to Mr Letizia looking forward to meeting with Ms Happe to make new arrangements for a meeting.  The letter makes no reference to any allegation of Ms Happe betting whilst on duty. 

After she received Mr Letizia's letter Ms Happe went to her solicitor who helped her to draft a reply.  The letter sets out the history of what happened according to the evidence described above as given by Ms Happe.  The letter deals with allegations about a discrepancy but does not refer to any allegation about betting whilst on duty.  The letter goes on to say:

"It has not escaped my notice that you have formed a view adverse to my integrity and honesty as early as Sunday when your wife spoke with me.  If you have you are wrong and if you haven't will you please let me know when I am to resume my duties, or otherwise clarify the present status of my employment.

Will you also let me have the detail of the new arrangements which you have referred to in your letter and can you advise me what is proposed to be done about the loss of 35 hours work which has resulted from this situation so far.

Please let me know when you would like to meet me to discuss your concerns about the discrepancies as I am happy to assist you in whatever way I can".

Mr Letizia wrote an undated letter to Ms Happe which she received in the post on 14 August 1996.  That letter does not answer the questions raised by Ms Happe but merely says:

"Dear Margaret,

I have scheduled a meeting for Friday, 16th of August at 1:00 pm at the Bayswater Hotel.  Could you please inform me if you are able to attend and if your lawyer will be present."

Ms Happe attempted to ring Mr Letizia on the evening of Thursday, 15 August 1996 and on the morning of Friday, 16 August but she was unable to speak to him.  Ms Happe left messages to the effect that she was unable to attend the meeting at 1:00 pm as her lawyer was otherwise engaged.  She rang back at 1:20 pm on Friday, 16 August 1996 and spoke to Mr Letizia.  She asked him to reschedule the meeting and he told her not to bother but to come and collect her money and look for another job.  When she asked him why, he gave three reasons, namely, the discrepancies in the books, bettings whilst on duty and misconduct.  According to Ms Happe this was the first occasion on which the question of betting on duty was raised.  She admitted to Mr Letizia that she did bet on duty on that one occasion.  According to Mr Letizia, he was once again agitated during that telephone conversation.  He had not intended to terminate Ms Happe's employment in that manner but he appears to have lost his temper.  According to him, he told Ms Happe that she was terminated for betting on duty.  Mr Letizia said that during that telephone conversation he stated to Ms Happe that she had been told he wouldn't tolerate betting on duty and she asked him if she was terminated, and, in the heat of the moment he said yes.  Ms Happe asked "what for" and Mr Letizia said "betting on duty".  Mr Letizia said that prior to the phone call on 16 August 1996 he had no intention of terminating Ms Happe's employment.  He said that she was terminated then because of the telephone conversation and also because he was not happy because she continued to place bets on duty.  He said that the reason for the termination was betting on duty. 

The employment separation certificate signed by Mr Letizia gave the reason for termination as being "unsatisfactory work performance" and in the "further details" section of the form he wrote "following her failure to attend two meetings scheduled to discuss unsatisfactory work performance Margaret was terminated".  Mr Letizia said that he completed the form in that manner on advice of an employee of the Chamber of Commerce and Industry with whom he had been in contact throughout this period.  Mr Letizia said that although he filled the form in in that manner, the real reason for the termination was Ms Happe's betting whilst on duty.

THE CREDIBILITY OF THE WITNESSES

This was a case in which I had some difficulty with the credibility of each of the witnesses that were called.  In Ms Happe's case the main difficulty I had with her evidence was that her case was run on the basis that she had disregarded Mr Letizia's instruction that staff were not allowed to bet on duty or credit bet, as the day after issuing that instruction Mr Letizia gave her instructions that certain people on a list were allowed to credit bet.  She considered that he had reverted to his old ways and the former instruction no longer stood.  However, Ms Happe admitted during cross-examination that she knew that she was not allowed to bet whilst on duty but just did so on one occasion. 

I had far greater difficulties however with the evidence called on behalf of the respondent.  In the first place, the evidence of the respondent's witnesses contradicted each other.  For example, Mr Letizia said that he instructed Mr Ellie to keep reporting any further instances of betting on duty by Ms Happe, whereas Mr Ellie denied that Mr Letizia had given him any such instructions.  Mr Ellie's evidence was internally inconsistent on some occasions and Mr Ashcroft was somewhat vague.  More importantly, I found that Mr Letizia's evidence was not only internally inconsistent on several occasions, but on the whole it just did not ring true based on the whole of the evidence, including the letters written by both him and Ms Happe.  As an example of the internal inconsistencies in Mr Letizia's evidence, when asked why he did not speak to Ms Happe about betting on duty after he became aware of it, he gave various explanations at different times, including that he didn't know why, that he might have been too busy; that he couldn't do anything because he could not afford to dismiss Ms Happe as he had no-one to replace her; that he wanted to monitor the situation to see if there were any further losses; and that there was no urgency.

Although at the hearing of this matter Mr Letizia said that his main concern was Ms Happe's betting on duty, it is my belief based on all of the evidence that this is not so, and that Mr Letizia's primary concern was the possibility of him incurring further losses through Ms Happe's suspected credit betting whilst on duty.  It is hardly surprising that Mr Letizia would suspect Ms Happe in view of the further continuing, although relatively minor, losses and in view of the finger having been pointed at her by Mr Ashcroft on his departure.  I want to stress that there is no evidence that Ms Happe was responsible for the shortfall.  Although Mr Letizia says that he was at all times concerned about the betting on duty he simply did not act in relation to that at all until he told Ms Happe she was dismissed on 16 August 1996.  There was no mention of betting on duty in any of the documents or letters sent by Mr Letizia before that day or in the separation certificate.  If Mr Letizia had raised it before 16 August 1996, it is my view that he would have set it out in his letter of 5 August 1996 and that Ms Happe would have addressed the question in her letter to Mr Letizia of 8 August 1996.  Although Mr Letizia gave evidence that his primary concern was for his staff members in that he was anxious that they not get into trouble themselves by betting on duty, I find this hard to believe from a man who on his own evidence did not pay people at all while they were training and who reduced his young employee Mr Ellie to tears by grilling him about betting on duty. 

In all the circumstances I do not accept Mr Letizia's evidence that the reason for termination of Ms Happe's employment was that she was betting on duty.  To the extent that the evidence of the witnesses conflicts, I prefer the evidence of Ms Happe over the evidence of the respondent's witnesses.

WAS MS HAPPE A CASUAL EMPLOYEE?

It was submitted on behalf of the respondent that if the applicant was a casual employee, then her engagement was for a short period within the meaning of regulation 30B(3) as it was for a period of less than six months.  I agree with that part of the submission.  On any view of the evidence Ms Happe had been engaged for a total period of less than six months.  It remains to be decided whether Ms Happe was a "casual employee" within the meaning of those words in regulation 30B.  In the case of Reed v Blue Line Cruises Ltd (unreported) IRCA 571/96, Moore J provides a detailed analysis of the meaning of those words in the Convention Concerning Termination of Employment at the Initiative of the Employer and within regulation 30B of the regulations.  At page 7 of his judgment his Honour states:

"A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work.  Another characteristic is that there is no certainty about the period over which employment of this type will be offered.  It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual". 

His Honour made it clear that just because the parties call the applicant a casual employee under the terms of the relevant award does not necessarily mean that the employee is a casual employee within the meaning of those words in regulation 30B.  His Honour goes on to say at page 8:

"In my opinion, a casual employee for the purposes of regulation 30B is an employee who is, from time to time offered employment for a limited period on the basis that the offer of employment might be accepted or rejected but in circumstances where it could be expected that further employment of the same type would or might be offered and accepted but there was no certainty about the period over which it would continue to be offered".

It was argued on behalf of the respondent that this court should take into account the training period from March of 1996 in deciding whether or not Ms Happe was a casual employee.  It is clear that during this period of training Ms Happe was able to determine on which days she would come in for her training.  However, because it was understood by both parties that the training period was to be a different type of arrangement from that which was to take effect once Ms Jenkins left her employment, I do not consider it appropriate to determine the employment status of Ms Happe on the basis of what occurred during the training period.  Further, it could be considered that Ms Happe was not an "employee" at the time of her training because she was not paid for her labour during that time by her employer.  It is true that Mr Ashcroft paid her some small amounts but that occurred by way of an ex gratia payment out of Mr Ashcroft's pocket.  In my view, the relevant period to look at in assessing whether or not Ms Happe was a casual employee was from the time she commenced paid employment on 13 May 1996.

The evidence is that very little was discussed by Mr Ashcroft and Ms Happe before she commenced her employment.  Ms Happe was simply told that she was to take over Marie Jenkins' hours.  The TAB agency was open at set hours during the week.  Each week Mr Ashcroft and Ms Happe would allocate the hours between themselves.  There was no time limit on the period for which Ms Happe was to work.  Her employment was in that sense for an indefinite period.  Although there was an amount of flexibility in the actual number of hours worked by Ms Happe each week, it was clearly understood that she was to be available on a regular and continuing basis to work the hours in the agency.  In my view, the employment of Ms Happe was not inherently informal, uncertain and irregular as described by Moore J.  For these reasons, I consider that Ms Happe's engagement was not as a casual employee within the meaning of those words in regulation 30B.  It follows that this court has jurisdiction to hear and determine her application. 

WAS THERE A VALID REASON FOR THE TERMINATION?

Mr Letizia on behalf of the Bayswater Hotel stated that the reason for the termination of Ms Happe's employment was that she was betting whilst on duty contrary to his specific instructions. Ms Happe concedes that she did bet whilst on duty on one occasion. In ordinary circumstances, where an employee has his or her employment terminated for acting contrary to the specific instruction of his or her employer, that would be sufficient to constitute a valid reason for the termination within the meaning of the words of section 170DE(1). This case, however, must be looked at in the light of all of the circumstances. The fact is that Ms Happe's employment was not terminated immediately or shortly after she breached the specific instruction of her employer. Mr Letizia was told about her betting on duty but he was content for Ms Happe to remain at work for some time simply because he needed her to do the work as he had nobody else available. I have already indicated that it is my view that the betting on duty by Ms Happe was not the real reason for the termination of her employment. All of the circumstances of the case point to the reason for the termination being a combination of Mr Letizia suspecting Ms Happe of credit betting whilst on duty and therefore being responsible for the shortfall in the TAB's takings, and him losing his temper with her during the telephone conversations. The onus is on the respondent to prove that there is a valid reason for the termination of Ms Happe's employment. It is my view that the respondent has not discharged that onus and Ms Happe's application must succeed.

WAS THERE A BREACH OF SECTION 170DC?

Although Mr Letizia had scheduled two meetings with Ms Happe to discuss the operations of the TAB agency, Ms Happe did not attend those meetings because she wished to have her lawyer present while the matter was discussed.  It is my view, in light of the implication that Ms Happe was responsible for the shortfall or guilty of some kind of dishonesty, that it was reasonable that she insist that she have her lawyer present during an interview with Mr Letizia.  When Mr Letizia actually terminated Ms Happe's employment he raised the allegation of betting on duty for the first time.  It is my view that Ms Happe was not given a proper opportunity to respond to allegations against her conduct or performance and that the provisions of section 170DC were breached by the respondent.

THE APPROPRIATE REMEDY

Ms Happe is not seeking reinstatement.  I am satisfied that to order reinstatement would be impracticable.  Prior to her termination Ms Happe was earning approximately $400 per week gross.  Since the termination of her employment she has only been successful in obtaining part-time casual work for which she earns a rate of $12.07 per hour.  She has worked a total of 280 hours according to my calculations.  Ms Happe has earnt a total of $3,379.60 since the termination of her employment by the respondent.  If her employment had not been terminated by the respondent she would have received approximately a total of $10,400 over a period of 6 months.  In the circumstances, I consider it appropriate to award Ms Happe 3 months pay by way of compensation.  The order will be that the respondent pay to the applicant the sum of $5,200 by way of compensation for the unlawful termination of her employment.

I certify that this and the preceding eighteen (18) pages
are a true copy of the reasons for decision of

Judicial Registrar Boon.

Associate:

Date:

APPEARANCES

Counsel for the Applicant:  Mr Peter Ward
Solicitors for the Applicant:  Peter Ward

Representative for the Respondent:           Mr Tony Smetana of the
  Chamber of Commerce & Industry of
  Western Australia

Date of hearing:  7 & 8 January 1997

Date of judgment:   17 January 1997