Ilana Goberman v Alena Fashions Pty Ltd

[1995] IRCA 377

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2569 of 1995

B E T W E E N :

ILANA GOBERMAN
Applicant

AND

ALENA FASHIONS PTY LTD
Respondent

Before:       Judicial Registrar Staindl
Place:         Melbourne
Date:          8 August 1995

REASONS FOR JUDGMENT (Ex Tempore)
Revised from Transcript

On 3 February 1995, Ilana Goberman (“the applicant”) was employed by Alena Fashions Pty Limited (“the respondent”) as a fashion designer. She had arrived in Australia in 1984 and had worked in the fashion industry since that time. 

The applicant's initial duties were to design two ranges of women’s fashion garments.  This involved not only the actual design work but also supervising and/or assisting with pattern making, the choice and purchase of fabrics, cutting and the making up of garments.  She was paid a salary of $30,000 per annum and a 1 per cent commission of sales.  In fact she received $542 net per week together with a contribution of $13.70 per week for superannuation.

By 13 April 1995, the applicant had completed the range of clothes on which she had been working over the previous month.  In fact another designer had been employed in March 1995 and had largely taken over the design of the other range.  The range of clothes had been sent to the respondent's agents and a reply was received by fax from one such agent, Barry Friedlander.  This indicated that in relation to several of the lines of clothing or "stories" as they are known, that they were unacceptable.  A number of other stories were apparently acceptable.  However, the fax indicated that “a little black T top” was needed for two stories. 

Upon receipt of this fax, Mr Anastasios Perdios, the respondent's managing director, made inquiries about three black tops that had been made up as prototypes.  The applicant was called in to Mr Perdios' office and asked about one of the tops.  The other two were located in the respondent's premises.  Perhaps the applicant did not respond immediately to this inquiry but she did admit to having one of the black tops at home.  She was asked by Mr Perdios whether she had obtained permission to take the garment home and she said that she had not.  However, I accept that a little later she did tell Mr Perdios that she had told his daughter that she intended taking one of the tops home. 

Mr Perdios became upset about this and accused the applicant of theft of the garment.  After some discussion he called the police and asked that charges be laid against the applicant.  I am satisfied that no such charges have been laid. 

This allegation against the applicant is a very serious one.  Furthermore, in an affidavit sworn 25 July 1995, Mr Perdios is highly critical of the applicant.  He states that one employee left her employment with the respondent as she could no longer work with the applicant because of her rudeness and her very abusive behaviour.  Later in the affidavit he states that:

“I have been in this industry for approximately 28 years and in all these years I have never had a range of complete failure as this designed by the applicant.  We have lost many customers along with many thousands of dollars and hundreds of work hours lost by reason of the applicant's incompetence and behaviour.” 

Given these events and statements, it would be surprising if Mr Perdios were to do anything else but immediately terminate the applicant's employment.  However, in his oral evidence he stated that in fact he was desperate to have the applicant continue in her employment.  Because of the rejection by Mr Friedlander of part of the range he wanted the applicant to design new garments to make up the range.  The respondent's case was that rather than being dismissed the applicant had in fact abandoned her employment by not turning up for the following and ensuing working days.  In my view, given the actions and expressed attitudes of Mr Perdios this is highly improbable. 

The applicant's case was that she had been dismissed by Mr Perdios.  She stated that she had specifically asked Mr Perdios if she had been dismissed, and he replied yes.  She had asked this question while on the phone to her boyfriend, Ross McBain, and at his direction.  I accept the applicant's evidence as I found her to be an honest and credible witness.  Her evidence was corroborated in significant aspects by the evidence of Mr McBain. 

In the hearing before me considerable attention was given to a conversation which occurred between Mr Perdios and Mr McBain.  It was conceded by all that Mr McBain asked Mr Perdios whether or not the applicant was dismissed.  The applicant's evidence, supported by Mr McBain, is that Mr Perdios made no response to this question.  The respondent's case is that Mr Perdios replied, “No.”  This evidence was given by Mr Perdios and supported to some extent by Ms Sia Perdios, although her evidence as to the circumstances of the conversation differed significantly from the other evidence on the point.  On balance, I prefer the applicant's version of this incident. 

These findings lead me to the view that the applicant's employment was terminated at the respondent's initiative.  I note further that the applicant had not been absent from work between the date of commencing her employment and the date of termination.  If in fact the respondent had been expecting her to return to work on the next working day, and Mr Perdios was eager for her to complete a particular range of garments, then it seems strange to me that no attempt was made to contact her.

Remedy 

The applicant has now obtained another job as a fashion designer.  The respondent does not now employ a designer as such, and certainly does not want the applicant to be reinstated. 

In light of these facts and the serious allegations made by the respondent against the applicant with the resulting ill feeling between the parties I find that reinstatement is impracticable. 

The compensation claimed by the applicant was at the rate of $362 per week, being the applicant's shortfall in wages and an amount of $13.70 per week by way of superannuation contributions. This is a total of $375.70 per week. There is almost 17 weeks between the day of termination and when the applicant is to commence her new job as a fashion designer. In my view it is appropriate that she be paid the shortfall for this period, being a total of $6386.90. I add that this figure takes into account any damages due to the applicant under section 170EE(5).

Accordingly, I order that the respondent pay to the applicant the sum of $6386.90 by way of compensation within 21 days.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the respondent pay to the applicant the sum of $6386.90 by
            way of compensation within 21 days.

I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl.

Associate:            
Dated:  

Solicitor for the Applicant:     Messrs Pryles & Defteros

Counsel for the Applicant:     Mr R. Spicer

Solicitor for the Respondent:  Kenyons

Counsel for the Respondent:   Mr McDermott

Date of hearing:  7 & 8 August 1995
Date of judgment:                   8 August 1995

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - TERMINATION AT THE INITIATIVE OF THE EMPLOYER - COMPENSATION

Industrial Relations Act 1988 s.170EE

ILANA GOBERMAN  v ALENA FASHIONS PTY LTD

No. VI 2569 of 1995

Before:  Judicial Registrar Staindl
Place:  Melbourne
Date:  8 August 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2569 of 1995

B E T W E E N :

ILANA GOBERMAN
         Applicant

AND

ALENA FASHIONS PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Staindl  8 August 1995

THE COURT ORDERS:

1. That the respondent pay to the applicant the sum of    $6386.90 by way of compensation within 21 days.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.