James Tolevsky v Ziadon Pty Ltd (t/as Giorgio Hair Studio)

[1995] IRCA 76

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1252 of 1994

BETWEEN:

JAMES TOLEVSKY
Applicant

AND

ZIADON PTY LTD (T/AS GIORGIO HAIR STUDIO)
Respondent

REASONS FOR JUDGMENT

8 March 1995  Judicial Registrar Staindl

James Tolevsky (“the applicant”) wishes to pursue a career as a hairdresser.  In order to become qualified as such he needs to complete an apprenticeship of 4 years or to complete an approved course in hairdressing followed by employment in a hairdressing salon of 1,000 hours.  He adopted the second option and undertook a course over a period of a year for which he paid $8,500.00.  He completed this course on 13 July 1994.

Prior to the completion of this course the applicant commenced working on a part time basis with Ziadon Pty Ltd which traded as Giorgio Hair Studio (“the respondent”).  The applicant worked at the respondent’s Northland salon for most Saturdays between 19 February 1994 to 14 July 1994.  The evidence discloses that he worked on 20 Saturdays during this period.

As the applicant neared the end of his course he enquired about the possibility of full time work at Giorgio Hair Studio.  In early July 1994 he approached Maria Konstan, who along with her husband ran Giorgio Hair Studio.  Although there is some dispute about what was said in the discussion it is common ground that the applicant commenced full time employment with the respondent on 14 July 1994.

Period Of Probation Or Qualifying Period Of Employment

It was forcefully argued by Mr Lacy, counsel for the respondent, that the applicant was excluded from the operation of Part VIA, Division 3 of the Act. He referred to s.170CC which provides that:

“The regulations may exclude specified employees from the operation of specified provisions of this Division.  An exclusion has effect only if:

a)it is permitted by paragraph 2, 4 or 5 of Article 2 of the Termination of Employment Convention; and

b)in respect of an exclusion permitted by paragraph 2 of that Article - it is limited in such a way as to provide adequate safeguards as mentioned in paragraph 3 of that Article.”

The Termination of Employment Convention is set out in Schedule 10.  Article 2 allows for the exclusion of categories of employed persons from the provisions of the Convention.  This includes:

“2(b)workers serving a period of probation or a qualifying period of employment determined in advance and of reasonable duration;”

Regulation 30B carries this exclusion from the Convention into effect.  In so far as is relevant it provides that the following employees are excluded from the operation of Division 3:

“30B(1)(c)an employee serving a period of probation or a qualifying period of employment, if the duration of the period or the maximum duration of the period , as the case requires:

i)is determined in advance; and

ii)is reasonable, having regard to the nature and circumstances of the employment;”

Mr Lacy argued that the applicant was serving a “qualifying period” within the meaning of this regulation.  He said that this phrase must be read as meaning something different to a period of probation and that its meaning was a period during which a qualification was attained.  He submitted that by the use of the term “qualifying period” Parliament must have meant something different to a period of probation.  This was particularly so given the reference in the Regulation to the “duration of the period or the maximum duration of the period”.  The phrase “the duration of the period” was said to apply to the phrase “period of probation” and the phrase “maximum duration of the period” applies to the phrase “qualifying period of employment”.

In view of the decision I have come to on the facts of this case it is unnecessary for me to decide this question.  However I do note the statutory enjoinder in s.170CB of the Act to the effect that an expression has the same meaning in Division 3 as in the Termination of Employment Convention.  S.170CB is applicable to regulations made under the act which are referable to Division 3.  See Andersen -v- Umbakumba Community Council (1994) 126 ALR 121. Accordingly reference needs to be made to the Convention which I have earlier quoted.

In construing a Convention Von Doussa J. said in Andersen’s case (above) at p.124:

“The rules which govern a national court when construing an International Convention which has been enacted into Australian domestic law are more liberal than the traditional canons of construction of the English common law.”

Before deciding this issue I would require further argument about the rules governing the construction of a convention.  In any event, as noted earlier I do not find it necessary to decide this issue.

In my view the evidence demonstrates that the applicant was employed on a period of probation.  That is the way Mrs Konstan saw it and it was the way that the applicant understood it.

In an affidavit sworn by Mrs Konstan she states that:

“On Saturday 2 July 1994 I said to James (the applicant) I would offer a full time position on probation trial period with terms of employment as per employment agreement.”

Furthermore in the same affidavit she states that on Thursday 14 July 1994:

“ ... James commenced employment on the basis that he was on a trial basis employment agreement.”

The evidence discloses that the applicant was given a copy of the employment agreement on the morning of 14 July 1994.  This agreement showed the commencement date as being 14 July 1994 followed by the phrase “subject to a trial period of 25 weeks”. There had been some discussion in early July between the applicant and Mrs Konstan concerning the number of hours required for the applicant to become qualified as a hairdresser.  The period of 25 weeks was obviously designed to allow the applicant to complete his 1,000 hours of work (at the rate of 40 hours per week).  However this fact does not make such a period a qualifying period.  At all times it was characterised as a probation period and I am satisfied that this is how the parties considered it.

Probation Period:  Determined In Advance

The applicant argued that the 25 week period was:

A.not determined in advance; and

B.not reasonable, having regard to the nature and circumstances of the employment.

There was some conflict in the evidence concerning when the applicant was told of the 25 week trial period.  I am satisfied that he was aware in advance that there would be a trial period, although he may not have been aware of the length of that period until he turned up to commence full time work on 14 July 1994.  Whether or not this satisfied the requirement that such period is determined in advance is a nice question.  It was submitted by Mr Fehring, Counsel for the applicant, that offer and acceptance in respect to the contract of employment had occurred earlier, ie when Mrs Konstan had offered the applicant the job and the applicant had accepted it.

On the other hand Mr Lacy submitted that even if I found that there was no agreement between the parties as to a period of probation, nevertheless Mrs Konstan herself had determined that period, and this was all that was necessary.  I do not accept that this is all that the legislation requires:  in my view the requirement that the period be determined in advance must include as a minimum that both parties are aware of such a period.  However I am inclined to the view that the facts in this case would satisfy the requirement that the period was determined in advance, although because of my finding on a subsequent issue, I have decided to rule that the applicant is not excluded from the Court’s jurisdiction.  It is therefore not necessary to make an actual finding on whether the probation period was determined in advance.

Probation Period:  Requirement That It Be Reasonable

Under Regulation 30B(1)(c)(ii) the period of probation must be reasonable before an applicant is excluded from making an application pursuant to section 170EA.  In my view a period of 25 weeks in the circumstances of this case is not reasonable.  I refer to what His Honour Wilcox CJ said in Nicolson -v- Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 242:

“Probably the most important consideration, in determining what is a reasonable period, will be the nature of the job.  In the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not extent beyond a week or two.  In the case of a person employed in a marketing or managerial position, working with little or no direct supervision and whose quality of performance cannot be immediately apparent, it may be reasonable for an employer to specify a probationary period measured in months.  Circumstances will vary from case to case; the size, location and mode of operation of the employer being relevant factors, along with the personal characteristics and circumstances of the employee.  The legislature has not prescribed the maximum extend of a reasonable period.  It is not for me to do so.  but I suspect that an employer will rarely be able to justify a period exceeding two or three months, in the case of an employee to whom Pt VIA now applies; that is, an award employee or a non‑award employee whose wages do not exceed $60,000.00 per year.  See s.170CD of the Act.”

In this case the applicant was working under fairly close supervision.  The actual salon is equivalent in size to a small sized retail shop, and Mr or Mrs Konstan would readily have been able to view the applicant at work.  The results of his work were, in most cases, immediately apparent.  Accordingly, in my view a 25 week period of probation is clearly excessive.  It follows that this Court has jurisdiction to hear this matter.

Circumstances Of Termination Of Employment

It will be recalled that the applicant commenced full time employment on 14 July 1994.  Thirteen days later, on 27 July 1994 he was rung at home by Mrs Konstan.  Initially he was out, and when he returned Mrs Konstan’s call a discussion ensued during which his employment was terminated.

Let me say at the outset that in general terms it is undesirable that a person’s employment be terminated in a telephone conversation.  It is a limited means of communication. In most cases it does not allow for participation or observation by any other persons except the two participants on either end of the phone.  It invariably happens (as in this case) that the contents of the conversation are disputed by the participants.  Further it is not generally conducive to full explanations being given, or investigations being made.  This is of particular significance in this case.

The reason why Mrs Konstan rang the applicant at home was because she had just had a complaint (by phone) concerning a perm done by the applicant on the previous Saturday.  She asked the applicant about the chemicals and process used on this client.  He gave her the details and it would seem that from his description there was nothing untoward about his treatment.  It is surprising that this is then used as a basis for the dismissal.  Further investigations should have been conducted as to whether or not any blame is attached to the applicant.  The applicant then rang Mrs Konstan back about 15 minutes later.  He said he had written details of the treatment down.  This referred to cards kept on customers who had attended the salon before and had some treatment.  It was normal for the details of any chemical treatment to be recorded on this card.  Given this,. it seems to me that it was incumbent on Mrs Konstan to check this card prior to terminating the applicant’s employment.

I am satisfied that Mrs Konstan also made reference to other complaints during the initial phone call.  This referred to an incident where the mother of a school-boy was angry at the haircut which had been given to her child.  It also referred to the applicant failing to use a plastic wrap for chemical work as compared with a fabric wrap.  I deal with each of these matters.

On Saturday 16 July 1994 two boys came into the studio.  The applicant was asked to do a “flat-top” haircut on his client.  He knew he could not do this type of haircut but I am satisfied that he decided he would at least go as far as he could.  He cut off too much hair and made it impossible to do a proper flat-top haircut.  Mr Franco Nappo, a fellow hairdresser, had to finish off the cut as best he could.  The child’s mother was upset at the haircut as it more closely resembled a crew cut rather than a flat-top.  My findings in relation to this incident involves rejecting the applicant’s evidence that the mother was not upset at the haircut, but at her child for asking for a flat-top cut.  I will have more to say about his evidence later in these reasons.  I also add in respect to this incident that I reject much of Mrs Konstan’s evidence about it.  Although at times I have preferred her evidence to that of the applicant, nevertheless, her evidence was unsatisfactory in other areas.

The second matter involves the use of plastic wraps instead of fabric wraps.  The applicant conceded that on one occasion he had been told to use a plastic wrap:  this was because when chemical work was being done (such as perms or hair-colouring) it was important that a plastic wrap be placed around a client’s shoulders.  This was to ensure that the chemicals did not get onto the client’s skin or clothes.

I find that the applicant was spoken to on two occasions about the use of plastic wraps when chemical work was being done.  The first occasion may well have been before he commenced full time employment and on the second occasion Mrs Konstan remonstrated with him quire severely.

The main criticisms of the applicant are that:

1.He tried to do a flat-top haircut when he did not know how to do them;

2.He wrongly used fabric wraps for chemical work despite being told not to.

3.He performed an unsatisfactory perm on a man who then complained.

In my view these criticisms should have been addressed by proper counselling and training.  The applicant was quite inexperienced, being at the beginning of his course of practical training, and in my view the respondent did not have a valid reason for terminating the applicant’s employment.

There is a further significant failing on the part of the employer.  The contract of employment (referred to earlier in reference to the trial period) which was signed by the applicant includes a clause 21 which is titled “Company Rule Book”.  The cluse is numbered in a strange manner but in sub-clause (1.VII) is the following:

“For any misdemeanour incurred by staff, one verbal and two written warnings will be given.  Warnings may be varied depending on the seriousness of the action.  If the employee is still disobeying company rules, they can be dismissed.”

There was a singular failure by the respondent to follow its own disciplinary procedure.  It could be argued that one - perhaps two - verbal warnings were given to the applicant prior to dismissal.  No written warnings were given.  A breach of a disciplinary procedure in such a fundamental manner will almost always lead to a finding that the dismissal was harsh, unjust or unreasonable.  That is the situation here.

Remedy

I turn then to the question of remedy.  In his initial application the applicant did not seek reinstatement.  He advised the respondent on or about 14 December 1994 that reinstatement was now sought.  Meanwhile the respondent had employed someone else, although that person has left and another person employed.  In my view an employer should be able to rely upon the applicant’s statement that he does not seek reinstatement and employ someone else.  It would be unfair if that person had to lose their employment because the applicant had a change of heart.  This finding leads me to the view that in this case reinstatement is impracticable.

Compensation

The basis of my findings as to impracticability is also important in considering the question of compensation.  Reinstatement is the primary remedy under the Act.  Where the applicant does not seek reinstatement he/she should not necessarily expect to be compensated for loss of wages on an ongoing basis.

In this case the applicant says that he has received only a very small amount of income since the date of his dismissal, apart from unemployment benefits.  He was cross examined about the jobs for which he has applied and then was asked whether he had ever advertised for work.  He denied advertising for work.  When confronted with a newspaper advertisement he conceded that he had placed advertisements in a local paper advertising himself as a “qualified hairdresser” who does “mobile home/work visits”.  In light of his denial that he had ever advertised for work the fact of the advertisement is significant.  Secondly, he admitted he was not a qualified hairdresser and thirdly he stated that he did not own a car (and hence his reason for seeking other work in only a limited geographic area).  I do not think the applicant was being frank in his evidence and I am unsure as to what income he received during the period since dismissal.

In the circumstances of this case, limited compensation only is appropriate.  The applicant’s weekly wage was $414.00 per week.  In my view the appropriate amount of compensation is $2,500.00.

I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl.

Associate:

Dated:               8 March 1995

Counsel for the Applicant:	Mr I. Fehring
Solicitor for the Respondent: Counsel for the Respondent:	Messrs Phillips Fox Mr B. Lacy
Dates of hearing:	8, 9, 10 & 16 February 1995
Date of Judgment:	8 March 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1252 of 1994

BETWEEN:

JAMES TOLEVSKY
Applicant

AND

ZIADON PTY LTD (T/AS GIORGIO HAIR STUDIO)
Respondent

MINUTES OF ORDER

Judicial Registrar Staindl

THE COURT ORDERS THAT:

1. That the respondent pay the applicant compensation in the amount of $2,500.00 within 21 days.

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

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - qualifying period or employment - period of probation - probation period not reasonable - no valid reason for termination - reinstatement no sought initially - other persons employed - reinstatement impracticable - compensation.

Industrial Relations Act 1988, ss.170CC and Regulation 30B(1)(c)

Andersen -v- Umbakumba Community Council (1994) 126 ALR 121

Nicolson -v- Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233

JAMES TOLEVSKY -v-      ZIADON PTY LTD (T/AS GIORGIO HAIR STUDIO

NO. VI 1252 of 1994

Before:  STAINDL JR

Place:    MELBOURNE

Date:     8 MARCH 1995