James Quinn v West Savoy Theatres
[1995] IRCA 637
•29 November 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether RESIGNATION or termination - whether PROCEDURAL FAIRNESS - whether VALID REASON for termination - REMEDY
INDUSTRIAL RELATIONS ACT 1988 Ss 170CB, 170DB, 170DC, 170DE, 170EA, 170EDA, 170EE
Pannell v Brummer (1972) AILR
Francesca v Prime Security (1994) AILR
Mohazab v Dick Smith Electronics Pty Ltd, unreported, IRCA No. 221/95, Wilcox CJ, 1 June 1995
Nicol v ABC, unreported, IRCA No. 479/95, Boulton JR, 8 August 1995
Brown v Mirboo North and District Bush Nursing Aged Care Inc., unreported, IRCA No. 457/95, Parkinson JR, 11 September 1995
Ciampa v Licandro, unreported, IRCA No. 294/95, Parkinson JR, 30 June 1995
Marchesi v Mitsubishi, unreported, IRCA No. 141/94, Murphy J, 14 December 1994
Stewart v Pullin (1994) 58 IR 322
APESMA & Sparre v David Graphics Pty Ltd, unreported, IRCA No. 410/95, Wilcox CJ, 12 July 1995
Appleby v Darbay, unreported, IRCA No. 312/95, Parkinson JR, 6 July 1995
Winter v Australian National Hotels Limited, unreported, IRCA No. 574, Lee J, 25 October 1995
Aitken v CMETSWUA - WA Branch, unreported, IRCA No. 352/95, Lee J, 7 August 1995
JAMES QUINN -v- WEST SAVOY THEATRES - WI 95/1453
BEFORE: RITTER JR
PLACE: PERTH
DATE: 29 NOVEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1453
BETWEEN: JAMES QUINN
- Applicant
AND: WEST SAVOY THEATRES
- Respondent
MINUTE OF ORDERS
BEFORE: RITTER JR
PLACE: PERTH
DATE: 29 NOVEMBER 1995
THE COURT ORDERS THAT:
The termination of the employment of the applicant contravened Sections 170DB and 170DE of the Industrial Relations Act 1988.
The respondent shall pay to the applicant $950 in damages pursuant to Section 170EE(5) of the Industrial Relations Act.
The respondent shall pay to the applicant the sum of $9,433.50 in compensation pursuant to Section 170EE(2) of the Industrial Relations Act.
The respondent shall pay to the applicant the sum of $4,600 which was not but ought to have been paid to the applicant pursuant to his contract of employment.
The respondent shall pay to the applicant each of the amounts referred to above within 21 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 ) No. WI 95/1453
BETWEEN: JAMES QUINN
- Applicant
AND: WEST SAVOY THEATRES
- Respondent
BEFORE: RITTER JR
PLACE: PERTH
DATE: 29 NOVEMBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988 ("the Act") for compensation arising from the alleged termination of the employment of the applicant, by the respondent, in contravention of a section or sections of Division 3 of Part VIA of the Act. Reinstatement is not sought.
In addition, there was a claim for amounts not paid to the applicant which ought to have been paid to him by the respondent pursuant to the contract of service by which the applicant was employed. Whilst this was a live issue at the commencement of the trial, the parties resolved it during the course of the hearing. It was agreed that the respondent owed the applicant $4,600 and that an order should be made at the appropriate time that the respondent pay this amount to the applicant.
Mr Schapper, who appeared for the applicant, submitted that the respondent terminated the employment of the applicant and that such termination was in contravention of the provisions of the Act. In particular, it was contended that Section 170DB of the Act had been contravened in that the respondent terminated the applicant's employment without giving the period of notice required by Section 170DB(2). Further, it was contended that the applicant's employment had been terminated without the applicant having been given the opportunity to defend himself against allegations relating to his conduct or performance under Section 170DC; and that the employment was terminated without a valid reason in contravention of Section 170DE of the Act.
The principle defence of the respondent was that the applicant's employment had not been terminated by the respondent, but that the applicant had resigned. In the alternative, the respondent submitted that if the applicant's employment had been terminated it was for a valid reason, the applicant's conduct, and the applicant had been given an opportunity to defend himself against the allegation made, thus satisfying the requirements of Sections 170DE and 170DC of the Act. Mr Kavenagh, for the respondent, conceded however, that if the applicant's employment had been terminated by the respondent then the period of notice required by Section 170DB(2) had not been given.
THE FACTS
Evidence was given by the applicant in support of his case and Mr Tonnie Button and Mr Mark Coleman gave evidence on behalf of the respondent. The following is a summary of the facts. Most of the facts were not in dispute, subject to some differences between witnesses in emphasis and recollection.
The applicant was employed at Club X, an establishment owned by the respondent. Club X had premises in Barrack Street and James Street in Perth and in Dog Swamp but the applicant primarily worked at the Barrack Street location. The applicant described the Barrack Street establishment of Club X as comprising an adult bookshop, cinema, live peep show, erotic video viewing in private booths and a gay lounge.
The applicant said that he had been employed by Club X for 4½ to 5 years with breaks in the employment. His most recent employment with Club X commenced in about August 1993. It was agreed that this employment continued until 20 March 1995.
The applicant described himself as having been a shop assistant whilst employed at Club X. He elaborated that his duties included selling of the reading materials and other services provided at Club X, maintaining and settling the cash registers, at times cleaning the viewing booths, bagging books, ordering stock and also some duties normally done by the then State Manager, Mr Button, such as banking, at times when Mr Button was absent.
When the applicant was employed by the respondent he was advised that he would be paid wages pursuant to the appropriate award. I was advised by the parties that the relevant award was the Shop and Warehouse Assistants' Award published in Volume 72 of the W.A. Industrial Gazette at page 2401 as amended.
During his last period of employment, the applicant worked three shifts per week at Club X. These were on Saturday, Sunday and Monday. In total he would work a 23 or 24 hour week, working various hours over the three days worked.
The Barrack Street establishment was open between 9.00 am and 12 midnight on six days of the week and between 12.00 pm and 8.00 pm on Sunday, although it seems that at times the hours were 12.00 pm to 7.00 pm on Sunday. At times the applicant's hours of employment involved the opening and/or closing of Club X at Barrack Street. The applicant described that there were various tasks which it would be necessary for a person opening or closing Club X to complete including dealing with security measures, counting of three different cash floats and switching on or off projectors and machines. The applicant estimated that on average this would involve 15 minutes' work before or after the closing of the shop as the case may be. On a few occasions, when there were no cleaners present at closing time, the applicant would have to clean the individual booths. When this occurred, the total time taken in performing duties after the closing of the shop was 40 minutes or longer.
The applicant said in his evidence that during most of his employment at Club X he was not able to take a meal break because he was the only person employed as a Shop Assistant at the premises during his shifts. He said that towards the end of his employment there was, at times, another person able to take over his duties whilst he had a meal break. However, for the majority of the time he was employed at Club X he could not take a meal break. The applicant said that the subject of meal breaks was raised many times with Mr Coleman, his immediate superior, and Mr Button. However, the response was that he could not have such a meal break as if he took a meal break the other employees at the James Street and Dog Swamp premises would also want meal breaks.
I was informed by Mr Schapper that the Award entitled an employee in the circumstances of the applicant to a meal break. The respondent did not assert that Mr Schapper was incorrect in this submission.
The applicant also said that he was not paid for the time he spent at work in opening and closing the shop, before and after the nominated time for the premises to close to customers. This also became an issue between the applicant and the representatives of the employer.
The applicant said that initially he was paid at the rate of time and a half the normal hourly rate for work on Sundays. However, in about January 1995 Mr Button and Mr Coleman came to the applicant's residence for a social drink. They explained that the applicant had been paid at the wrong rate for working on Sundays and that in future he would be paid at the rate of double the normal hourly rate. The applicant was then paid at this rate for work on Sundays from January 1995 to the cessation of his employment. The applicant said that he raised with Mr Button the issue of being back-paid for the work done on Sundays for which he had not been paid at the correct rate. The applicant said that Mr Button told him that there was no chance of this and had laughed it off.
On Saturday 18 March 1995 Mr Button and Mr Coleman attended at the residence of the applicant for another social drink. During the course of the evening there was a discussion concerning the issues of the meal break, payment for work done before and after the opening and closing hours of the shop and back pay for the time worked on Sundays before the applicant was paid at twice the normal hourly rate. It is common ground that the applicant became quite emotional during the course of that evening. The applicant says that Mr Button rejected his claims.
On Sunday 19 March 1995 the applicant was working at Club X on a shift which involved closing the premises. It is common ground that the applicant closed the premises to customers at fifteen to twenty minutes before the nominated closing time. It is also agreed that in doing this the applicant asked a regular customer to leave the premises. The applicant said that he did this as he needed to close the premises to members of the public at this time to enable him to complete his duties and leave the premises on the hour; he being only paid for work up to that time. The applicant acknowledged that Mr Button had told him previously not to close the premises to customers prior to the nominated time. However, this was a point of dispute between the applicant and Mr Button from time to time. The applicant's position was that if the premises remained open to members of the public until the appointed hour then he would have to work for approximately fifteen minutes after that hour to complete his duties and he was not being paid for this period of time. He therefore felt entitled to close the premises to members of the public early so that he would be able to leave the premises at the time at which he ceased being paid.
The applicant is a qualified school teacher. He said in his evidence that on Monday 20 March 1995, before he was to start work at 4.00 pm, he contacted Highgate Primary School to be put on their relief teaching list. He said that within the hour he received a telephone call back saying that there would be work for him the following day at the primary school. The applicant said that he contacted the primary school because he was not happy with the fact that he had not and was not being paid what he felt he was entitled and thought that Mr Button would find a reason to sack him. He said that due to the different hours of school teaching and working at Club X he would be able to do both jobs if necessary. He wanted to see if he could make a living out of relief teaching.
That applicant said that he felt he might get sacked because he was making an issue over his working conditions with Mr Button. He said that Mr Button had, at times, been behaving in an aggressive and intimidating way towards him, and had seen him act in a similar manner towards other staff members who had been sacked not long afterwards. He said that Mr Button would make a big issue out of trivial things such as how a book had been bagged.
The applicant said that he commenced making his claims about working conditions in earnest in about January 1995 and that the claims had been made with reasonable frequency after that.
As stated above, it is agreed that the applicant's employment ceased on 20 March 1995. On this date the applicant was due to commence work at 4.00 pm. It is agreed that earlier in the day the applicant was telephoned by Mr Button who requested him to start work before 3.00 pm. Mr Button requested this because Mr Coleman who was working on the shift before Mr Button, had an eye infection and had an appointment to go to the doctor. After briefly considering the matter, the applicant advised Mr Button that he would not be prepared to commence work early.
It is common ground that when the applicant arrived to commence work at the Barrack Street premises that day at 3.30 pm, Mr Button was present. The applicant's evidence was that there was a greeting and that Mr Button referred to the applicant as "Mr Quinn". The applicant said it was unusual for Mr Button to refer to him in this way and that Mr Button's mood was cold and authoritative. The applicant said that there was then a discussion about Mr Button contacting the head office of the respondent in Melbourne about the issue of back pay for Sunday work. Mr Button replied that he had not had time to do this and that he would do it in his own time. The applicant said that Mr Button raised the issue of the closure of the premises the previous evening. The applicant said that he told Mr Button that he was only paid to 8.00 pm so he had closed the shop at 7.45 pm. The applicant's evidence was that Mr Button then said that he had had enough, that the applicant was not to start at him and that Mr Button said "I'll have your keys, James". It was agreed that the significance of the handing over of the keys was that the applicant would no longer be employed at Club X.
The applicant's evidence was that he understood that he had been sacked by Mr Button. The applicant's evidence was that he collected his belongings and gave Mr Button the key and told him that it would be the last time he bullied him. He then left the premises.
Mr Button's version of the events of 20 March 1995 was different. Mr Button said that he worked at the Barrack Street premises on the morning of 20 March 1995. He said that a regular client came downstairs and asked him why he had been asked to leave the premises at 20 minutes before the nominated closing time of the premises the previous evening. Mr Button said that he told the client, “You couldn’t have”, but the client reiterated that he had been. Mr Button said he then told the client that he would see the applicant about it when he came in.
Mr Button's evidence was that when the applicant arrived at work that day at about 3.30 pm he put his bag in the staff room and then came to the front counter where Mr Button was working. There was a greeting but then nothing was said for a few minutes. Mr Button said that he could tell that the applicant was not in a good mood. Mr Button's evidence was that the applicant then said he was owed back pay. Mr Button said that he told the applicant that he would see "Ken" (a director of the respondent in Melbourne) about that. Mr Button's evidence was that he then asked the applicant about the customer having to leave the premises before the appointed closing time the previous evening. Mr Button's evidence was that the applicant said that as he wasn't employed after the hour, he had no intention of working one minute past it. Mr Button's evidence was that he then said "Don't start this shit with me. If you're not happy give me the keys". Mr Button said that the applicant then walked around and banged his keys on the counter, said "I'll never be bullied by you again" and then left the premises.
It is common ground that the applicant did not return to Club X and that there was no oral communication between the applicant and Mr Button after the applicant left Club X on 20 March 1995.
The applicant wrote a letter to Mr Button dated 27 March 1995 (Exhibit 1). Although not absolutely clear, the letter appears to be making a claim for the amounts the applicant had not been paid, but was entitled to be paid, for working on Sundays from 21 April 1994 to December 1994. Further, the letter stated that, "I have enjoyed my association with this company, however when I requested meal breaks, paid overtime for extra hours worked and back pay for times I was not paid the minimum Award rate, I was unfairly dismissed by you on March 20". The letter also said that a copy of it was being sent to Dale (the paymaster in Melbourne), "so that he can be aware of the situation".
Mr Button did not reply to the letter of the applicant but sent it to the head office of the respondent in Melbourne with a note to Dale (Exhibit 2). The note was very brief. It did not make any comment on the observation in the letter that the applicant had been dismissed. The only possible reference to the fact of the termination of the applicant's employment, in the note, were the words, "closing store early". In cross examination, Mr Button initially said that this was written on the note as a reminder to himself. However, upon further questioning he simply said that he could not offer a reason as to why he had written this on the note. Mr Button said in his evidence that he did not send any other note or letter to Dale concerning the letter that he had received from the applicant. There was no evidence that Mr Button made any further communication with the head office in Melbourne concerning the letter sent to him by the applicant.
After the cessation of the applicant's employment with the respondent, he obtained some relief teaching with the Education Department of Western Australia. The respondent tendered a schedule which set out the days worked and payments received by the applicant from the Education Department between 21 March and 6 October 1995 (Exhibit D). On 20 August 1995 the applicant wrote to the Education Department applying for temporary teaching positions within 20 kilometres of Perth City in the primary teaching area (Exhibit 3). The applicant received a letter from the Education Department of Western Australia on 28 September 1995 appointing him as a full time teacher at Montrose Education Support Centre (Exhibit 4). The effect of this appointment was that the applicant is now a full time temporary teacher rather than a relief temporary teacher.
There are some other matters of fact which need to be mentioned.
Mr Button wrote a letter to the applicant dated 2 February 1995 (Exhibit 5). The letter was on Club X letterhead. Omitting formal parts the letter reads:
"It has come to my attention that you are not banking correctly.
You have been employed with this company for approximately four years and after this amount of time you should know the correct procedures.
Your attitude also needs to improve vastly - for example, you feel there is one way for James and one way for everybody else. This is not the case and you will be required to follow all procedures correctly.
This is your first written warning after many verbal warnings. A copy of this has been placed on your staff file."
The letter was signed by Mr Button as State Manager. It was given to the applicant by Mr Button. The applicant said that when he opened the letter and read it he said that it was petty and put it in the bin. The applicant said that he could not understand what the reference to banking procedures was, although he conceded that there were times when the till was out small amounts and that Mr Button had become anxious about this. The applicant said that when the till was out it was mostly in favour of the respondent. The applicant said that he did not know what caused Mr Button to write such a letter but that he believed that the letter was written by Mr Button to cover himself in case he sacked the applicant. The applicant explained that Mr Button and Mr Coleman had been on a course where they had been informed of the procedures which should be followed in sacking a person. He said that he gained this information from talking to Mr Button and Mr Coleman.
Mr Button, in his evidence, explained the background to the letter being written in the following way. Mr Button said that the applicant had had his ups and downs as an employee during his latest period of employment with the respondent, commencing in 1993. Mr Button said that at times he was a good employee but at other times he was, "a pain". He said that numerous times he had spoken to the applicant concerning his attitude and that in February 1995 he gave him the letter which was Exhibit 5.
When asked about the reference in the letter to many verbal warnings, Mr Button said that he had numerous discussions with the applicant about the "running of the company". When asked to give examples of warnings given to the applicant he said that there had been discussions about the applicant making sure that the monies received balanced at the end of his shift. Mr Button also said that he had discussions with the applicant about his attitude in the sense that he perceived that the applicant wanted one rule for him and another rule for the other employees of the respondent.
Mr Button also said that there were discussions about the applicant not closing the premises to customers before the appointed closing time.
Mr Button also acknowledged that the question of meal breaks was a point of disagreement between himself and the applicant.
Another specific incident about which evidence was given was as follows. The applicant said that one night he was working with another employee, Adam Wilson. A customer had asked for change and had handed over a $50 note. A $50 note was then seen on the counter at the cashier's desk. The applicant said that the customer asked whether the $50 note was his change or whether it belonged to the shop. The applicant said he was not sure but told the customer "it belongs to us". The applicant and Mr Wilson remained unsure whether the $50 was the customer's or should have been in the till. It was placed in the till and agreed that if, at the end of the shift the till was over $50, then they would split the money half each. At the end of the shift, on their calculations, the till was $50 over and they divided the $50 between them. The next morning Mr Coleman spoke to the applicant. He said that he had done the banking and the till was $50 under what it should have been. The applicant said that he explained to Mr Coleman what had happened and that he and Mr Wilson must have incorrectly counted the contents of the till. After some discussion about whether Mr Button should be informed, Mr Coleman said that no-one else needed to know about the matter if the money was replaced. The applicant said he then borrowed $50 from one of the female performers and put the amount in the till. Mr Button was then not told about the incident. The applicant said that Mr Coleman had said that he should not have not taken the $50 but as he was a good worker he deserved a second chance. The applicant stated that this incident occurred on a date later than when he was given the letter dated 2 February 1995.
Mr Coleman also gave evidence about this incident. His evidence about the conversation between himself and the applicant was not in dissimilar terms to that of the applicant. Mr Coleman's evidence was that he said to the applicant that his behaviour was not acceptable and that he could be terminated for what he had done. However, because Mr Button was going on holidays and because the applicant was a friend of his, he would give him the benefit of the doubt. He said he believed the applicant to be an honest person who would not have stolen from his employer.
In his evidence, Mr Coleman also mentioned that there was an occasion when he opened Club X after the applicant had closed the premises the night before. He found that the front float of $150, which would normally be made up by small denominations to give the shop change, simply had three $50 notes in it. Mr Coleman said that he raised this with the applicant who said that he had been unable to work out the float after a long day and so had simply left three $50 notes in it. Mr Coleman told the applicant that it was unfair to expect someone to open the shop with three $50 notes in it. The applicant denied this incident in cross examination. I accept Mr Coleman's evidence that the incident occurred and that the applicant had a genuine failure to recall the matter which may have seemed unimportant to him. In cross examination, Mr Coleman said that apart from these matters he had no other complaints about the work of the applicant and that he had been working with him from late 1993.
Most of the relevant parts of Mr Button's evidence have been set out above. In addition to what is set out above, Mr Button stated in cross examination that the applicant could be a good worker when he wanted to be. He confirmed that three areas of dispute between him and the applicant were the issues about meal breaks, being back paid for work on Sundays which had not been paid at double time and payment for starting and finishing work before/after the appointed opening and closing time of the premises. Mr Button stated that he had reached the stage where he had switched off to the applicant's claims concerning these matters. He agreed that on his version of the events on 20 March 1995 that he said to the applicant in effect that if he was not happy that he should leave the employment. He confirmed in cross examination that he said this knowing that the applicant was not happy and knowing that the applicant was, at least on that day, going to remain unhappy with the situation. He also confirmed that the effect of his comment to the applicant was that if the applicant continued to disagree with him on those issues, he should give him the keys.
Finally, in answer to a question that I asked Mr Button, he said that as long as there were no customers in the premises, a person in charge of the premises could close the premises to members of the public five to ten minutes early.
TERMINATION OF EMPLOYMENT
The first issue to determine is whether the respondent employer terminated the applicant's employment. It was submitted by the respondent that I should accept Mr Button's evidence as to the terms of the conversation with the applicant on 20 March 1995, that led to the applicant leaving the premises. The respondent submitted that if I so accepted Mr Button's evidence, then the applicant had resigned from his employment and Section 170EA of the Act did not apply.
For relevant purposes, the Act does not define "termination of employment". However, Section 170CB of the Act states that an expression has the same meaning in Division 3 of Part VIA of the Act as in the Termination of Employment Convention, 1982. In the Convention the terms "termination" and "termination of employment" are stated to mean "termination of employment at the initiative of the employer".
The respondent's argument is that if I accept the evidence of Mr Button, in that he said to the applicant that if he was not happy he could hand over his keys, the respondent gave the applicant a choice as to whether or not to resign. Further, that in handing over his keys and leaving the premises, the applicant exercised his choice to resign. The applicant's evidence, as set out above, was that Mr Button indicated that he had had enough of their disagreements and demanded the keys. Clearly, if the applicant's evidence is accepted then the termination of employment occurred at the initiative of the employer.
I have not found it easy to resolve the difference between the evidence of the applicant and Mr Button concerning the conversation on 20 March 1995. In the end, however, it may be that there is little difference between them. On Mr Button's version he said to the applicant that (in effect) if he was not happy he could leave the respondent's employment. It was clear to Mr Button that the applicant was not happy, because of the disagreement over the remuneration he was receiving. Further, it was clear to Mr Button that the applicant was not going to be happy whilst the three primary areas of dispute were not resolved in his favour. Accordingly, in the circumstances, saying to the applicant, "If you are not happy, then give me your keys", is very close to saying, "Give me your keys". This could then be seen as a termination of employment at the initiative of the employer.
It is not necessary to finally determine this, however, as I find that, on balance, I accept the evidence of the applicant about the conversation with Mr Button on 20 March 1995.
I make this finding for the following reasons:-
(a)In my opinion, having regard to his demeanour and all other relevant factors, the applicant was a witness of truth. Whilst his evidence was at times not entirely clear and coherent, I find that this was largely due to the stress of the situation of having to give evidence rather than any attempt not to tell the truth. I find that his recollection of the conversation with Mr Button on 20 March 1995 was clear and credible.
(b)In the letter from the applicant to Mr Button dated 27 March 1995, the applicant alleges that he has been unfairly dismissed. Mr Button sent this letter to the head office of the respondent in Melbourne without commenting on the allegation that the applicant had been dismissed. If the applicant had resigned, as Mr Button contended in his evidence, I would have expected Mr Button as State Manager of the respondent, to have pointed this out to the respondent when forwarding the applicant's letter to Melbourne. The only comment that Mr Button makes in his note to Dale which could be about the allegation of being unfairly dismissed is, "closing store early". As set out above, Mr Button's ultimate position was that he did not know why he had written this on the note to Dale. However, I agree with the submission made by Mr Schapper that the reference to "closing store early" was a reference to at least one of the reasons why the applicant had been dismissed. Mr Button's answer that he had no idea why he had written "closing store early" on the note to Dale, together with his change of evidence on this point, were both unsatisfactory aspects of his evidence.
(c)The applicant's evidence that Mr Button said to him that he had had enough, "don't start at me, I'll have your keys", seems to fit the state of mind that Mr Button had reached. Mr Button admitted that he had switched off to the applicant's claims. This, coupled with his annoyance at the applicant asking a customer to leave the premises fifteen minutes before closing the previous evening, could well have led him to speak to the applicant in the way alleged by the applicant.
The respondent submitted that I should not accept the applicant's evidence because it was vague in places. Whilst this may be so, I attribute this to the matters referred to in (a) above. Further, he was not vague about the conversation with Mr Button on 20 March 1995, a matter which was obviously important to him.
The respondent also referred to the evidence the applicant gave about his diaries in support of the submission that I should not accept the applicant's evidence. During the course of his evidence, the applicant mentioned that he had kept a personal diary which included in it some matters potentially relevant to these proceedings, including hours worked for the respondent. In cross examination the applicant said that the diaries were burnt at the hour of 1.00 am on the morning of the hearing. Whilst this may at first seem odd, the applicant explained that he had burnt the diaries at this time because it was the anniversary of the death of his partner. He also explained that the diaries contained personal details. I accept the applicant's explanation as to the destruction of the diaries.
The respondent also pointed to the fact that the diaries were not included in the applicant's affidavit of discovery. The applicant explained this by saying that he did not include the diaries in the affidavit of discovery as he did not think the diaries themselves proved anything because diary entries could always be falsified. He said that he did not think that the diaries were relevant. The affidavit verifying list of documents sworn by the applicant on 3 October 1995 was tendered by the respondent as Exhibit A. Whilst the applicant's assessment of the necessity to include the diaries in the list of documents was not legally correct, I accept his explanation that he did not think the diaries needed to be included in the list. In this regard I note that there was no attempt by the applicant to try to hide the fact that he had the diaries. He freely and frankly, in my view, gave evidence about them.
I also make mention of another submission made by Mr Schapper. Mr Schapper submitted that whether one accepted the applicant's or Mr Button's version of the conversation on 20 March 1995, I should find that there had been a termination at the initiative of the employer. His submission was that in the circumstances, Mr Button's actions would have constituted a repudiation of the contract of employment by the employer entitling the employee to treat the contract at an end and leave the employment immediately. In that sense, Mr Schapper submitted that there was a constructive dismissal. In support, Mr Schapper submitted that the respondent had refused to pay for all of the time worked by the applicant as an employee, in that it was not paying the applicant for the time that he spent before and after the opening and closing times of the premises attending to duties connected with his employment. Further, the respondent had indicated that it would not pay the applicant the back pay he was owed when his wages for Sundays had been based on an incorrectly low rate. Further, that the respondent, through Mr Button on 20 March 1995 indicated that the situation was not going to change, that the applicant's claims were, "this shit", and if the applicant was not happy he could leave the employment of the respondent. Mr Schapper submitted that the employer was saying to the employee in effect that "we are not going to pay you according to the contract and don't bother asking for this; if you don't like it leave the employment".
Mr Schapper submitted, as stated above, that if the applicant then left his employment, there was a constructive dismissal. In this regard he referred me to Macken, et al, The Law of Employment, Third Edition, 1990, page 215, Pannell -v- Brummer (1972) AILR paragraph 585 and Francesca v Prime Security (1994) AILR paragraph 81. These were not authorities, however, as to the legal position under the amended Industrial Relations Act 1988
On the other hand, Mr Kavenagh submitted that any termination of employment which occurred because of a resignation by an employee could not be considered to be a termination at the initiative of the employer. In effect, he submitted that there was no jurisdiction in the Court to grant relief where there had been a constructive dismissal. In support of this proposition he referred me to the authority of Mohazab v Dick Smith Electronics Pty Ltd, unreported, Industrial Relations Court of Australia No. 221/95, Wilcox CJ, 1 June 1995. In my opinion, this decision does not stand for so broad a proposition as suggested by the respondent. In my opinion, Mohazab simply holds that, on the facts of that case, the employee exercised a free choice to resign and so therefore could not be said to be terminated at the initiative of the employer; see for example pages 7 and 8 of the Chief Justice's reasons.
Further, there are a number of authorities of this Court which accept that a termination of employment at the initiative of the employer can be constituted by what is often termed a constructive dismissal. By way of illustration I refer to Nicol v ABC, unreported, IRCA No. 479/95, Boulton JR, 8 August 1995, Brown v Mirboo North and District Bush Nursing Aged Care Inc, unreported, IRCA No. 457/95, Parkinson JR, 11 September 1995, Ciampa v Licandro, unreported, IRCA No. 294/95, Parkinson JR, 30 June 1995, Marchesi v Mitsubishi, unreported, IRCA, No. 141/94, Murphy JR, 14 December 1995, Stewart v Pullin (1994) 58 IR 322, APESMA & Sparre v David Graphics Pty Ltd, unreported, IRCA No. 410/95, Wilcox CJ, 12 July 1995, Appleby v Darbay, unreported, IRCA No. 312/95, Parkinson JR, 6 July 1995 and Winter v Australian National Hotels Limited, unreported, IRCA No. 574, Lee J, 25 October 1995.
I note that Parkinson JR in Brown v Mirboo North and District Nursing Aged Care Inc at page 7 said the following in a case where an enrolled nurse resigned from his employment after his request for extended leave to see an ill relative overseas had been rejected:-
"This is not a circumstance where there were contractual or other entitlements in the applicant to the leave which, in their breach by the respondent, would entitle the applicant to treat the contract as having been terminated by the respondent and thus a constructive dismissal having occurred."
By analogy, it could be said that the respondent in this case was, by refusing to pay the applicant in accordance with the contract of employment, breaching the contract, and thus entitling the applicant to treat the contract as having been terminated. Therefore, according to Parkinson JR, a constructive dismissal would then have occurred.
I also refer to Winter v Australian National Hotels Limited, cited above, at page 14. There Lee J referred to the respondent, either actually or constructively, "bringing the employment relationship to an end by failing to remove the condition it had imposed, being a condition that departed from the terms of the contract of employment, and by withdrawing from Winter the opportunity to be employed under that contract". Again, it can be seen that these comments could apply by analogy to the situation which had occurred in this case. It should also be noted, that the respondent admitted during the course of the proceedings that it ought to have paid the applicant for the total hours worked, including the, on average, fifteen minutes before and after the closing time of the premises and that the applicant was entitled to back pay for the underpayment for work on Sundays prior to January 1995.
Therefore, whilst I do not have to determine Mr Schapper's submission that there was a termination at the initiative of the employer, on either version of the events on 20 March 1995, I do say that, in my opinion, there is some force in the submission.
TERMINATION IN BREACH OF THE ACT
As stated above, on balance, I accept the applicant's version of the events on 20 March 1995 and accordingly find that the applicant's employment was terminated at the initiative of the employer.
It follows that the employer terminated the employment of the applicant without giving to him the period of notice required by Section 170DB(2) of the Act. It was agreed that the required period of notice was two weeks. The respondent did not argue that the applicant, if terminated, did receive this period of notice and did not argue that it was not required not to give such a period of notice due to Section 170DB(1)(d).
Accordingly, I find that there has been a contravention of Section 170DB(1) of the Act.
I next refer to the alleged breaches of Section 170DC and Section 170DE of the Act.
Both sections require me to make a finding as to the reason why the employee's employment was terminated. In my view, taking into account all of the facts, the respondent terminated the applicant's employment for the following reasons:-
(a) Prior dissatisfaction with the performance of the applicant.
(b)The applicant asking the customer to leave the premises of Club X about fifteen minutes before the nominated closing time of the premises on 19 March 1995
(c)The applicant continuing to make claims to Mr Button for meal breaks, to be paid for time worked before and after the nominated opening and closing time of the premises and to be paid for Sundays worked where the pay had not been calculated properly in accordance with the Award.
In so far as Section 170DC is concerned I find that matters (a) and (b) referred to above did relate to the employee's conduct or performance. He was given the opportunity to defend himself against the allegations made, although with respect to (b), that opportunity was only immediately prior to the termination. However, I do not find that there has been a contravention of Section 170DC.
Section 170DE(1) states that an employer must not terminate an employee's employment unless there is a valid reason or reasons connected with the employee's capacity or conduct. I find in this case that one reason that the employer terminated the employment was because of the applicant's ongoing and insistent claims as referred to in (c) above. On the facts of this case, this was not a matter connected with the employee's capacity or conduct. Therefore, Section 170DE(1) has been breached. In addition, I find that matters (a) and (b), referred to above involve a breach of the Act. This is because although termination for reasons (a) and (b) may be for valid reasons, apart from subsection 170DE(2) of the Act, the termination was at least harsh, unjust and unreasonable in my opinion.
Termination for reasons (a) and (b) would at least have been harsh, unjust and unreasonable in my opinion.
Whilst it was apparent to the applicant that the respondent was dissatisfied with some aspects of his employment performance, the performance and the dissatisfaction had not reached a level where one could say it was reasonable for the employer to terminate the employment. Further, although in asking the customer to leave fifteen minutes before the nominated closing time of the premises the applicant knew that he was acting contrary to the directions of Mr Button, I find that the termination of the employment is nevertheless harsh and unjust for the following reasons:-
(a)The employer was aware through Mr Button that the applicant was at times closing the premises to members of the public prior to the nominated time. Indeed, Mr Button conceded that employees had a general discretion to close the premises, when there were no customers in it, five to ten minutes earlier than the nominated time. The applicant had not been warned that if he closed the premises early and asked a customer to leave that he would be terminated for such conduct.
(b)The applicant was only being paid to work to the hour on 19 March 1995. The applicant asked the customer to leave at about fifteen minutes before the hour so that he could attend to his other required duties and leave his employment on the hour.
(c)The actions of the applicant should be seen in the context of the ongoing dispute between the applicant and the respondent about being paid for work done before and after the nominated closing time of the premises.
(d)According to Mr Button, this was the first time that the applicant had asked a customer to leave the premises before the nominated closing time of the premises.
In making the above findings I have applied the onus of proof as set out in Section 170EDA of the Act.
Accordingly, I have found that there has been a contravention of Section 170DB and 170DE of the Act.
REMEDY
The primary remedy available under Section 170EE of the Act is reinstatement. Pursuant to Section 170EE(2), it is only appropriate to award compensation where the Court thinks that reinstatement is impracticable. In this case, the applicant is not seeking reinstatement. It was not argued by either party that reinstatement would be practicable. In all the circumstances of the case I am satisfied that this is so.
Section 170EE(5) states that in respect of a contravention of Section 170DB constituted by the termination of employment of an employee, the Court may make an order requiring the employer to pay to the employee an amount of damages equal to the amount of the compensation which, if it had been given by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section. Pursuant to Section 170DB(4) the amount of compensation instead of notice must equal or exceed the total of any amount that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period. As stated above, the period of notice in this case is two weeks. I was informed by the parties that the applicant's gross wage per week at the time of the termination of the employment was $475.00. Accordingly, two weeks' wages would equal $950. I therefore find that the respondent should pay to the applicant the sum of $950 by way of damages pursuant to Section 170EE(5) of the Act.
The question of the compensation to be paid for a breach of Section 170DE is referred to in Section 170EE(2) of the Act. This section states, in summary, that if the Court thinks that reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate. Section 170EE(3) states that in working out the amount of the compensation, the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment. However, Section 170EE(3) states that the amount of the compensation must not exceed the amount of remuneration that would have been received by the employee in respect of the period of six months that immediately followed the day on which termination took effect if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect. There is a further limitation in Section 170EE(3)(b) which is not applicable to this case.
As stated by Lee J in Aitken v CMETSWUA - WA Branch, unreported, IRCA No. 352/95, 7 August 1995,
"The Court will consider the detriment occasioned to the employee by the employer's contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences."
I find that, but for the actions of the employer which breached the Act, the applicant would have been likely to remain in the employment of the respondent. Whilst, prior to his termination, the applicant had sought and obtained one day of relief teaching, the applicant stated that his intention was to find out whether he could make a living from relief teaching before making any decision about leaving the employment of the respondent. Exhibit D sets out the days worked by the applicant with the Education Department from 21 March 1995 to 19 October 1995. This schedule indicates that, to use the applicant's words, he could not have made a living from relief teaching up until 21 August 1995. In that week, the applicant had three days of relief teaching, which was followed by eight weeks in a row of full time teaching. With respect to each of the weeks up to 21 August 1995, there were only two occasions when the applicant received more than one full day of work in a week. Most often the applicant only received one or half a day's employment each week from the Education Department. The applicant could have worked the days of employment that he worked with the Education Department and continued to work for the respondent. This is because of the hours that he worked with the respondent being on Saturday and Sunday and on Monday from 4.00 pm until 12 midnight. I note that in the period 21 March to 21 August 1995 that the applicant only worked on four Mondays for the Department of Education and on only one of these was it a full day.
Due to all of the above and subject to what is said below I think it is appropriate to compensate the applicant for the full amount that he would have earned from his employment with the respondent from 21 March 1995 to the time when he gained more regular employment with the Department of Education, being 21 August 1995. This period is a period of 21.86 weeks. As stated above, I was informed that the applicant's gross weekly wage at the time of his termination was $475. Therefore the amount of lost wages totals $10,383.50. However, I believe that in the circumstances of this case the amount of $950.00, awarded for the contravention of Section 170DB of the Act, should be deducted from this amount in assessing compensation. This is because the applicant will already receive this sum for the breach of Section 170DB. I do not think it reasonable to award the applicant compensation for this two week period for which he is already being compensated by way of damages. Therefore, the amount of compensation to be awarded for the breach of Section 170DE totals $9,433.50.
Finally, there will be an order that the applicant be paid the sum of $4,600 by the respondent, as agreed by the parties during the course of the hearing.
I will make an order that each of the amounts ordered to be paid to the applicant be paid within 21 days of the date of the order.
I certify that this and the preceding 23 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ritter.
Associate
Date:
Counsel for the applicant: Mr D Schapper
Solicitors for the applicant: D H Schapper
Counsel for the respondent: Mr T Kavenagh
Solicitors for the respondent: Kavenagh & Co
Hearing date: 6 & 7 November 1995
Judgment date: 29 November 1995
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