Jan Anton Anthonisz v J. Molyneux T/As the Design, Building and Furnishing Company (Aust) Pty Ltd

[1995] IRCA 710

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - failure to give NOTICE OF TERMINATION

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - HARSH, UNJUST OR UNREASONABLE - failure to give NOTICE OF TERMINATION

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - VALID REASON

Industrial Relations Act 1988 (Cth): s170de

JAN ANTON ANTHONISZ v. J. MOLYNEUX T/AS THE DESIGN, BUILDING & FURNISHING COMPANY (AUST) PTY LTD

WI 1017 of 1995

CORAM:  MADGWICK J
PLACE:    PERTH

Date of Hearing:     13 October 1995

Date of Judgment: 13 October 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
PERTH
DISTRICT REGISTRY

No. WI 1017 of 1995

BETWEEN  JAN ANTON ANTHONISZ

Applicant

AND   J. MOLYNEUX T/AS
   THE DESIGN, BUILDING & FURNISHING COMPANY (AUST) PTY LTD
  Respondent

CORAM:  MADGWICK J
PLACE:    PERTH
DATE:     13 OCTOBER 1995

MINUTES OF ORDER

THE COURT ORDERS THAT

1. The respondent to the proceedings and to the application for review pay to the applicant the sum of $370 by way of damages on account of failure to give notice.

2. The notice of motion be otherwise dismissed.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
PERTH
DISTRICT REGISTRY
  No. WI 1017 of 1995

BETWEEN  JAN ANTON ANTHONISZ
  Applicant

AND  J. MOLYNEUX T/AS
   THE DESIGN, BUILDING & FURNISHING COMPANY (AUST) PTY LTD
  Respondent

CORAM:  MADGWICK J
PLACE:    PERTH
DATE:     13 OCTOBER 1995

REASONS FOR DECISION DELIVERED EXTEMPORE
REVISED FROM TRANSCRIPT

MADGWICK J: This matter concerns a claim by Mr Anthonisz that the Design Building and Furnishing Company (the employer) dismissed him in circumstances invalid under s 170de. Contrary to the view taken of the transactions by the learned Judicial Registrar, I think that the employer did in fact terminate Mr Anthonisz’ employment.

Resignation or Dismissal?

The two issues in this case concern, firstly, whether Mr Anthonisz resigned or was in fact dismissed and, secondly, whether the circumstances were such as to render the dismissal harsh, unreasonable or unconscionable.  I think it probably was the case that, on the day before the respondent, through Mrs Molyneux, terminated Mr Anthonisz’ employment, she was persuaded, out of sympathy for a person she could actually see was well-motivated, to give him another try. It is also likely that Mr Anthonisz could see that things were not going well and that Mrs Molyneux was overall very dissatisfied with what was going on.  Mr Anthonisz himself was frustrated;  he felt unappreciated by Mrs Molyneux;  he felt that he had talents to offer that it was in her interests to use but she would not use them;  he may indeed, and I think probably he did, mutter words about resignation in an incautious way having regard to his position with the Commonwealth Employment Service, but in a natural way.

Nevertheless, I have no doubt but that Mrs Molyneux was at the end of her tether.  She had become increasingly distressed.  She was dissatisfied with Mr Anthonisz’ performance in the job, although I think she could see that it was not the case of a person wilfully or lazily setting himself on a course of not doing the work:  it was that he was in a sense too intelligent for the job and had too much successful organising experience in his own background to be able to fit into the very dreary role of telemarketing.  I think she wanted him to go.  I think she made this clear to him and I think that in the end, in deference to her wishes, he went.  Whether by way of face-saving, possible misapprehension of his position with the Commonwealth Employment Service, or for any other reason, he did use words to the effect of “I resign” or “I will resign” or “I will go then”.  As a matter of fair characterisation of the facts, that does not detract, in my mind, from the proposition that this amounted to a termination of his employment at the initiative of the employer.

Probation period

Turning to the other issue, I think there probably was discussion of a probation period.  I think it was probably said that this would be 3 months, but I have no doubt that, particularly in relation to such personally trying work as telephone sales work, it is quite unreasonable to suggest a probation period of 3 months.  I think that any employer would be well able to form a view about an employee’s suitability to be kept on in considerably less time than that. I do not find that the work was subject to any reasonable probation period and hence I think that the employee is entitled to claim the protections of the Act. 

The two relevant protections are that he was entitled to one week’s notice and that, if the dismissal was harsh, unjust or unreasonable, he is entitled to compensation at large in respect of the termination of the employment.

Harsh, Unfair or Unreasonable?

The employee has failed to establish to my comfortable satisfaction of mind that there was anything harsh, unfair or unreasonable about the termination of the employment. 

I think it is quite plain that Mrs Molyneux, herself a lady of a capacity for forceful expression, had done her best to make clear to Mr Anthonisz the area of her dissatisfaction. 

Mr Anthonisz in his evidence was not always a shining model of credibility.  It is just not believable that, as he claims, the alleged nightly-prepared log sheets were as they appear in his affidavit and that, as he said here, they were exact copies of the original.  A further revealing matter was the account, which Mr Anthonisz accepted from Mrs Molyneux, of what happened in relation to a painter and potential customer to whom Mr Anthonisz spoke. That account makes it clear that he had told a lie, perhaps a white lie but nevertheless a lie, to his employer about why a potential customer of that employer was not interested in advertising and  that he had assumed through dispiritedness that he was able to deduce, without the potential customer’s saying so, that he could hardly afford to advertise because his business was going poorly.  In fact, the man told Mrs Molyneux in effect that he did not propose to advertise because his business was going sufficiently well that he had no need to be advertising in her journal.

Mr Anthonisz is a man of considerable intelligence, of considerable artistic and organisational achievement in the past and it is a terrible thing that he has been out of paid work for as long as he has, but the plain fact is that he did not suit Mrs Molyneux, who was running a small business.  He was alive with ideas to help her.  She herself did not regard those ideas as particularly helpful. She believed that she was more than capable of running her own business.  She resented his suggestions as being beyond the station of the position in which he was engaged, if I can use old-fashioned language.  She did not appreciate them.  Further, he had not managed to make one sale.  She knew, however, that he was working hard, that he would go home and work up sales pitches overnight and bring them in and present them proudly, and she did her best to help.  There were odd things about his manner that also upset her and I think that she did her best in a reasonable way to cope with the position.  As Mr Anthonisz himself recognised, it is an unreasonable proposition to expect of employers, particularly small employers who have to work very closely with their employees, that they be nursemaids.

Mrs Molyneux also did not suit Mr Anthonisz.  He thought that she had no great capacities as a business woman, that she had no particular understanding of the difficulties of a telemarketing venture for salespeople such as himself, that she showed no insight or imagination in determining how her commercial ends in relation to this venture could be achieved.  He resented her rejecting his advice and suggestions.  But it was her business and her money that was potentially at risk and she was entitled not to accept his suggestions and advice.  He believed, wrongly I think, that she held him in contempt as a human being.  I think she did not.  I think she could see, as could anyone , that this was a man of intelligence who was not at the time in a position that suited both sides of the engagement, employer and employee, and I think that she did her best.

Her own credit is not unassailable.  I have been less than impressed with her clinging to the straw that Mr Anthonisz resigned, with a view to trying to extricate her company from liability in relation to these proceedings. 

However, all in all, I think that it comfortably appears that there was nothing at all harsh, unjust, or unreasonable about this dismissal, and accordingly the application will fail on that account.

There should, however, have been given one week’s notice to Mr Anthonisz.  It is common ground that this was not was given.  The wages were $370 per week.

Orders

I therefore order that the respondent to the proceedings and to the application for review pay to the applicant the sum of $370 by way of damages on account of the failure to give notice.  Otherwise, the notice of motion is dismissed.

I certify that this and the preceding 5 pages are a true copy of the Extempore Reasons for Decision of His Honour Justice Madgwick.

Associate:  

Dated:       29 January 1996

APPEARANCES

Applicant:Self

Respondent:          I Molyneux on behalf of The Design, Building & Furnishing Company.

Date of hearing:     13 October 1995