Janet Bendall and Brackley Park

[1995] IRCA 46

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2135 of 1994

BETWEEN:

JANET BENDALL
Applicant

AND

BRACKLEY PARK PTY LTD
Respondent

REASONS FOR JUDGMENT (EX TEMPORE)

23 February 1995  Judicial Registrar Staindl

Lee Freedman trains race horses.  He is a director of a company known as Brackley ParK Pty Ltd and it is through this company that Mr Feedman sought to hire a personal assistant in late 1994.

In September of that year he contacted a personnel agency known as Alectus.  As a result of this the position of personal assistant was advertised in ‘The Age’ with a salary of $40,000.00 per annum.  The applicant Janet Bendall replied to this advertisement and was subsequently interviewed on two occasions for the job.  At the second interview there was some discussion about the salary and it was agreed that she would be paid $45,000.00 per annum together with superannuation.

By letter dated 4 October 1994 the respondent offered the applicant the job.  The starting date was nominated as Monday 7 November 1994 following the Melbourne Cup carnival in Melbourne.  The applicant was asked to sign a copy of this letter and return it to acknowledge her acceptance of the offer of employment.  She did this.

The applicant’s personal circumstances need to be mentioned.  She is almost 43 years of age and is a single parent with an 8 year old daughter.  The job with the respondent was attractive to her because there was a deal of flexibility about her hours of work.  She was told by Mr Freedman that she would be able to leave at 4:00pm each day to pick up her daughter and complete her work at home of an evening.

At about the same time as the applicant was first interviewed for her job with the respondent she was also interviewed for a job in the Premier’s office at a salary of $37,000.00 per annum.  She was offered this job and accepted it although at the time said she had been interviewed for another job and would accept it if it were offered to her.  She was employed in the Premier’s office for a period of 5 weeks and I accept that this was both permanent and secure employment.  She gave notice in this job once she was told that she had been successful in her job application with the respondent.  She finished up work there on 21 October, ready to start in her new job on 7 November.

On Friday 4 November Mr Freedman contacted Ms Horsfall from the personnel agency Alectus and accused her of making public the fact of the applicant’s appointment.  I note at this point that the agency and the applicant were aware that someone was occupying the position to which she was to be appointed but they  had been told that this person was to be moved.  Although there was nothing to suggest to me that Alectus had made the fact of the appointment public, it does not seem to me to be a matter of great importance given that the applicant was to commence work there the following Monday.

In any event Mr Freedman told Ms Horsfall that he did not want the applicant to commence there the following Monday.  Further telephone conversations occurred between Ms Horsfall and Mr Freedman but they led nowhere.  Late on the Friday afternoon Ms Horsfall had contacted the applicant and told her of the telephone call from Mr Freedman.

After a weekend filled with worry and uncertainty the applicant attended for work in the company of her solicitor on the Monday morning.  Mr Freedman said that he was not  going to change things around and that “the whole thing’s a balls-up”.  She was told that this decision had nothing to do with her.  There was some discussion about compensation to be made to the applicant but no settlement eventuated.  The applicant then lodged an application in this court pursuant to s.170EA of the Act.

The respondent called no evidence in this case.  It conceded that its actions were harsh and unreasonable (at least from the applicant’s point of view).  In my view this was a very sensible concession to make.  Although one could perhaps postulate circumstances which are worse than the present, the circumstances here created great anxiety and disruption to the applicant.

The respondent submitted that it had a valid reason for terminating the applicant’s employment on the basis of its operational requirement.  It was argued that as there was someone still employed in the applicant’s position then the operational requirements of the respondent meant that her employment contract had to be terminated.  Although the evidence that someone was still employed in the applicant’s position was based only on Mr Freedman’s statement that he was not going to change things around, I am prepared to accept that this is the case.  Nevertheless I am of the view that the respondent’s submission on this point fails.  The respondent contacted a personnel agency seeking a personal assistant.  The applicant was interviewed on two occasions concerning her appointment.  She was appointed by the letter of 4 October.  During all this time someone was apparently employed in the position to be filled by the applicant.  In these circumstances I do not see how the respondent can then argue that its operational requirements necessitate the termination of the applicant’s employment because there is already someone in her position.

However, the concession made by the respondent that the dismissal was at least harsh pursuant to subsection 170DE(2) leads to the finding that there was no valid reason for the termination of the applicant’s employment.

The applicant did not seek reinstatement, on the basis that any trust between her and Mr Freedman had completely broken down.  I have some sympathy to the applicant in this attitude, especially in the context where she was to be employed as his personal assistant.  However the circumstances in this case of the respondent also influence me:  my finding that there was still someone employed in the position to be filled by the applicant is significant in me deciding that in this case reinstatement is impracticable.

Compensation

The applicant’s salary was $45,000.00 per annum together with superannuation of $1,800.00, a total of $46,800.00.  The applicant has been unemployed since 7 November 1994, a period of about 3½ months.  She has registered with 5 employment agencies and has herself applied for other jobs.  Although it was suggested in submissions on behalf of the respondent that she had not applied for jobs of a secretarial nature for which she might be qualified, she was not cross‑examined on this.  If the principle relating to mitigation of loss applies to cases in this area, then in my view the respondent has clearly failed to demonstrate that the applicant has so failed to mitigate.

Mr Shaw for the respondent submitted that the amount of compensation should be equivalent to what would constitute reasonable notice in the applicant’s circumstances.  In a previous decision, I have discussed the relevance of periods of notice to the question of compensation under the Act.  (See Sargeant -v- Regent Press Pty Ltd (15 February 1995, VI196 of 1994)):  I adhere to my views in that case and find the common law period of notice to be of little assistance in this case.

The factors which can be taken into account in awarding compensation have not been spelled out by the legislature.  Decisions of this Court have given weight to a great variety of considerations.  The factors I take into account in this case are the significant period during which the applicant has been unemployed and her future uncertainty in this regard, her relinquishing of a secure job in order to take up this position, the lack of any pay in lieu of notice and her personal circumstances.  I assess the compensation to be awarded at $20,000.00 and allow a stay of 21 days for the payment of this amount.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of Judicial Registrar Staindl as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:

Dated:  23 February 1995

Solicitors for the Applicant: Counsel for the Applicant:	Home Wilkinson & Lowry Mr Lawrence
Solicitor for the Respondent: Counsel for the Respondent:	Arthur Robinson & Hedderwicks Mr Shaw
Dates of hearing:	23 February 1995
Date of Judgment:	23 February 1995

CATCHWORDS

INDUSTRIAL LAW - *

Industrial Relations Act 1988, ss.*.

*Cases

* -v- *

NO. VI * of *

Before:     * JR

Place:      MELBOURNE

Date:       *

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2135 of 1994

BETWEEN:

JANET BENDALL
Applicant

AND

BRACKLEY PARK PTY LTD
Respondent

MINUTES OF ORDER

23 February 1995  Judicial Registrar Staindl

THE COURT ORDERS THAT:

1. That the respondent pay to the applicant compensation of $20,000.00.

2. That there be a stay of 21 days in respect to such payment.

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