Ipsa v Westgate Medical Centre

[1997] IRCA 154

DECISION NO:154/97

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
JURISDICTION - whether ABANDONMENT of employment - whether TERMINATION at the INITIATIVE of the EMPLOYER - whether employee given OPPORTUNITY TO RESPOND - REMEDY - whether REINSTATEMENT IMPRACTICABLE - where mutual hostility and offence remains - COMPENSATION - exercise of discretion - accounting for all circumstances in proceeding - conduct of applicant after the termination. - DAMAGES - failure of employer to give NOTICE or payment in lieu thereof -

Workplace Relations Act 1996 ss170DB, 170DC, 170DE(1), 170EA, 170EE

IPSA -V- WESTGATE MEDICAL CENTRE

VI 2434 of 1996

Before  :          PARKINSON JR
Place              :          MELBOURNE
Date               :          2  MAY  1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2434 of 1996

B E T W E E N:

Amanda IPSA
Applicant

A N D

WESTGATE MEDICAL CENTRE
Respondent

MINUTES OF ORDERS

2  MAY  1997  PARKINSON JR

THE COURT ORDERS THAT:

1. The respondent pay to the applicant compensation in the sum of $656.00 pursuant to Subsection 170EE(3) of the Workplace Relations Act, 1996.

1. The respondent pay to the applicant damages in the sum of $328.00 pursuant to Subsection 170EE(5) of the Workplace Relations Act, 1996.

1. Such payments to be made within 21 days 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
VICTORIA DISTRICT REGISTRY

VI 2434 of 1996

B E T W E E N:

Amamda IPSA
Applicant

A N D

WESTGATE MEDICAL CENTRE
Respondent

REASONS FOR DECISION

2  MAY  1997  PARKINSON JR

This is an application made pursuant to Section 170EA of the Workplace Relations Act 1996.(‘the Act’)  The applicant was employed by the respondent at its medical centre in Werribee.  The registered business name of the respondent is Westgate Medical Centre and the business was conducted by Dr. Feda Eqbal and Mrs. Nabila Eqbal.  At the time of the employment the centre was newly finished and about to commence operations.  At commencement of operations the Centre was principally attended by Dr. Eqbal.  The applicant, together with two other people, was employed as a receptionist, on a part time basis, to perform reception and other general duties associated with a medical practice.  The hours of the practice were 8:00 a.m. to 10:00 p.m. on weekdays and 9:00 a.m. to 10:00 p.m. on weekends.  There were two designated shifts per day, the first shift being 10:00 a.m. to 3:00 p.m. and the second 3:00 p.m. to 10:00 p.m. The reception staff made arrangements between themselves regarding shift allocation. 

The applicant’s hours of work were nominated as 19 hours per week, although the evidence is that the applicant worked additional hours to those agreed, including overtime and call-out on short notice. 

The applicant contends that her employment was terminated on 12 September, 1996, as a consequence of an incident occurring between herself and Dr. Eqbal.  The respondent contends that there has been no termination of the employment at the initiative of the employer and says the applicant left the employment, on her own account as a consequence of the disagreement between herself and Dr. Eqbal. 

The evidence of the applicant is that she attended for work on 12 September 1996 as normal.  Her evidence is that she was requested by Dr. Eqbal to clean up some leaves and dirt which had been brought into the waiting room.  Her evidence is that she attempted to clean the premises and removed the leaves and dirt and that Dr. Eqbal told her she was “pathetic”.  Her evidence is that when she responded “there was no need to speak to me like that”, he replied, “well if you don’t like it you can leave, in fact you can go now”.  The applicant says she then asked if she was being sacked and that Dr. Eqbal replied that she was.  The applicant says she then collected her belongings and left.  The respondent contends that the applicant did not properly clean the area.  It further says that when required to clean under the supervision of Dr. Eqbal the applicant objected, saying she was not a cleaner and then left the premises. 

The evidence is that the applicant left the premises in a distressed state, returned to her mother’s home and informed her mother that her employment had been terminated.  After being informed of the circumstances by the applicant, the applicant’s mother, Mrs. Ipsa, immediately rang the respondent to attempt to sort out the problem.  She spoke to Mrs. Eqbal, who advised that Dr. Eqbal was not available.  Mrs. Eqbal agreed that the situation was out of proportion and advised that she would speak to Dr. Eqbal with a view to the applicant returning to the workplace. 

I am satisfied that it was common understanding between the two women in the course of the conversation that the applicant’s employment had been terminated by Dr. Eqbal.  Whilst it is clear that the former was not expressly stated, it is common ground that the tenor of the conversation was that Dr. Eqbal was upset at time of the incident and this was as a consequence of excessive hours of work.  The evidence of Mrs. Ipsa was that the discussion was left on the basis that Mrs. Eqbal would ring her to indicate what the position was after she had spoken to her husband. 

The applicant did not receive any further contact initiated by the respondent.  She was not advised of the outcome of the discussions held with Dr. Eqbal, although I am satisfied that there was an expectation that she was to be contacted in this regard.  I am satisfied that there was uncertainty and disagreement between the parties as to the outcome for the employment, of the events which occurred on 12 September 1996.  In my view on Dr. Eqbal’s version of the events leading to the employment ceasing on 12 September, the applicant’s conduct did not constitute an abandonment or a resignation of her employment.  It is clear that the applicant left the workplace distressed and that this was known to both Dr. Eqbal at the time and Mrs. Eqbal shortly thereafter.  I accept the applicant’s evidence that she believed her employment had been terminated by Dr. Eqbal.  There was no manifest intention on her part to either abandon or resign from the employment.  Her conduct and that of her mother in contacting the respondent’s premises and seeking to establish the status of the employment, was an attempt to resolve the matter immediately after the incident, clearly establishing that it was the applicant’s desire to remain in the employment and to resolve any difficulties.  This is conduct inconsistent with abandonment or resignation. 

The respondent declined to take any steps to pursue these matters, notwithstanding the contact made by the applicant’s mother and the reasonable expectation on the part of the applicant that further discussions were to be held as a consequence of that conversation. 

I am satisfied that it was the conduct of the respondent in failing to pursue the issues with the applicant, which resulted in the termination of the employment. I accept the applicant’s evidence that by the time she rang the respondent, to seek payment of her outstanding wages, it was apparent to her that the respondent was not intending to continue her employment. Consequently I am satisfied that there was a termination of the employment at the initiative of the employer and that the application made pursuant to Section 170EA of the Act is within the jurisdiction of the Court to hear and determine.

It is clear that the incident which resulted in the termination of the employment arose from a misunderstanding on the part of both the applicant and Dr. Eqbal as to each parties expectations and conduct.  I accept that the applicant attempted to perform the tasks allocated to her, and I also accept that in Dr. Eqbal’s view they were not performed satisfactorily.  It is clear that the manner in which both parties spoke to each other on that occasion was less than courteous and business-like. 

However the incident itself and the complaint of Dr. Eqbal was minor and in the context of the overall commitment and efficiency of the applicant in the performance of her duties, did not warrant the termination of her employment. I am not satisfied that the respondent had a valid reason for terminating the applicant’s employment at the time her employment terminated. In this sense the termination of the employment was capricious and not for sound or defensible reason. I am also satisfied that the applicant was given no opportunity to be heard in relation to the matters in question prior to the employment being terminated. I have concluded therefore that there has been a contravention of s170DE(1) and s170DC of the Act. I now turn to consider the question of remedy available pursuant to s170EE of the Act.

Remedy
I am satisfied that the relationship between the parties has broken down to such an extent that an order for reinstatement would be impracticable.  This is a workplace where close co-operation is required.  It is apparent that both parties have been offended by the manner in which they have been treated by the other.  The applicant’s evidence in the proceedings was that she was not prepared to return to the workplace unless Dr. Eqbal apologised to her.  I took this to be an indication that the applicant was unwilling to allow past events to be disregarded and to start afresh.  Dr. Eqbal’s evidence and that of his wife was that they were mutually and gravely offended by language used by the applicant about him, on what I accept was the day following the incident which led to the termination of the employment.  The evidence was that this language was used to an employee, Ms. McShane, at the workplace during the course of a telephone inquiry by the applicant as to her outstanding wages.  The applicant denies using the language alleged and it is possible that in her upset state she has forgotten.  However I am satisfied that Ms. McShane’s evidence is reliable in this regard.  She is not a witness who had an interest in the outcome of the proceedings and she impressed me as a frank and thoughtful witness. 

I am of the view that the applicant by her conduct on the telephone gravely injured her opportunity of the respondent acting to reinstate her at that time.  I accept the respondent’s evidence that this outcome had not yet been dismissed by either Dr. or Mrs. Eqbal.  These matters satisfy me that there is continued mutual hostility and offence remaining between these parties which, in the context of the particular workplace, would not allow for a re-establishment of harmonious working relations between them.  An order for reinstatement would be impracticable. 

In determining the quantum of any order for compensation it is necessary and relevant to the exercise of the discretion, to take into account all of the circumstances in the proceeding.  The applicant was employed by the respondent for a relatively short period of time.  This fact, together with the conduct of the applicant the day after the incident, discussed above, resulting in there being no opportunity to restore the working relationship, leads me to the conclusion that the applicant is entitled to a relatively small amount for compensation. 

I have determined the amount of compensation to be the equivalent of two weeks wages. I am satisfied that the applicant worked on average 26 hours per week. Of these hours, 8 hours per week were on weekends and paid at $ 14.00 per hour. The rest of the hours were paid at $12.00 per hour. The applicant’s average weekly wage during the period of the employment is, by my calculation, $328.00. I have used this amount in determining the amount of compensation and damages. The amount of compensation to be ordered is $656.00. The applicant is also entitled to an amount of damages consequent upon the failure of the respondent to accord the requisite amount of notice pursuant to s170DB of the Act. That is an amount of $ 328.00. The Orders of the Court will be in those terms.

I certify that the preceding six (6) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate      :          

Dated             :          2  May  1997

APPEARANCES

Counsel appearing for the applicant        :          Mr. A. McDonald
Solicitors for the applicant  :          McDonald & Murholme

Counsel appearing for the respondent     :          Mr. P. Ginnane

Solicitors for the respondent  :          J.M. Smith & Emmerton

Date of hearing  :          11  February  1997