Jina Sklivas and P. & R. Melbourne Sock Shop

[1994] IRCA 94

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 347/1994

B E T W E E N:    JINA SKLIVAS

AND:    
  P. & R. MELBOURNE SOCK SHOP

COURT:              CHANCELLOR JR

PLACE:               MELBOURNE

DATE:                  2 NOVEMBER 1994

REASONS FOR JUDGMENT

This is an application pursuant to Section 170EA of the Industrial Relations Act 1988 by Jina Sklivas
in respect of the termination of her employment by P. & R. Melbourne Sock Shop at the Chadstone Shopping Centre.

The applicant sought employment by leaving her particulars at the respondent’s Chadstone store and was subsequently interviewed by the Area Manager, Dianne Tonna, when a position became available.  Mrs. Sklivas worked successfully on a Friday night for two hours and was then employed for a three week trial period from 14 February to 7 March 1994.  The Chadstone Sock Shop was managed by Marianne Barlabas.  She was newly promoted to the position having previously been employed by the respondent as a sales assistant.  It appears that the company had no specific training days, training course or written training material and no specific job guidelines or description.  The applicant’s training was essentially of an “on the job” type by discussion and demonstration and provided mainly by Marianne and also by Dianne.

The evidence indicates that the applicant worked well during the training period.  Dianne said that the applicant was quite capable, responsible and had the ability to sell.

Mrs. Sklivas was employed from 7 March 1994 on a full-time basis as a shop assistant and was paid approximately $380.00 gross per week.

The applicant and Marianne worked Monday to Friday 9:00 to 5:30 and alternated Thursday night, Friday night and Saturday work.  A part-time sales assistant, Virginia Russell commenced employment shortly after the applicant and worked on Thursday and Friday nights and Saturdays.

Mrs. Sklivas remained in full-time employment for approximately eight weeks before being terminated by the respondent on 28 April 1994.  Taking into account absences due to illness and holidays the applicant actually worked a little more than six weeks following her full-time employment.

Section 170DE of the Act states that an employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employees capacity or conduct.

Section 170EDA sub-section 1(a) of the Act places the onus on the employer to prove that a valid reason or valid reasons existed.

The evidence of Dianne Tonna was that one to two weeks after 7 March 1994 she noted the lingerie in the shop was untidy, invoices were in the wrong spot and the shop was not neat in appearance.  She was concerned that Marianne was not telling Jina what to do and asked Marianne to speak to Jina.  Shortly thereafter Marianne was ill and Dianne felt that Jina was responsible enough to look after the store by herself.  Later Marianne complained to Dianne that she was left to do everything on her own and Dianne decided to find out for herself “what the problem was”.  It was then that Dianne had what has been described as a “counselling session” with Mrs. Sklivas on a date said to be either 11 April or approximately 15 April.  From Dianne’s description of events it seemed that the purpose of the discussion was to make inquiries of Jina in order to understand “what the problem was” and it seems to have been the first occasion on which Dianne had specifically sought the applicant’s version of events.

Dianne’s evidence was that she referred to teamwork, balancing the till and coming in early to learn the till, being late back from lunches and the method of approaching customers when discussing matters with the applicant.

In her evidence Mrs. Sklivas denied that any specific matters were raised during the course of the discussion.  I am unable to accept that evidence and I find that the applicant’s blanket denial that any of the matters were raised is inconsistent with the circumstances in which the discussion occurred.

In evidence in chief Dianne said that she indicated to Mrs. Sklivas that she was not satisfied with the applicant’s performance and that the applicant was back on a two week trial.  However, in cross examination Dianne admitted that she could not remember the exact words and appeared uncertain as to the content of the discussion, although she felt that the applicant understood.  In her evidence Mrs. Sklivas denied that she had been warned that her performance had to improve.

Given Dianne’s uncertainty and given that the purpose of the discussion initially seemed to be exploratory in nature, I find that Dianne did not provide the applicant with a clear warning during the course of the discussion.  In my view the discussion cannot be fairly described as a counselling or warning session.

In cross examination Dianne expressed the view that Jina was no longer a “team player” but agreed that it was difficult to accurately describe a “team player” and agreed the only instruction she gave was to ask them to work together.

Dianne also agreed that she always regarded Jina as being responsible, that she knew how to sell and that she was left in charge of the store on several occasions right up until termination.

Asked why she had terminated Jina, Dianne said that the applicant was not working together with Marianne as a team and the store was never in order.  Dianne had concluded that the applicant was the problem.  Dianne said that she did not consider that Marianne might be the problem and accepted that Marianne was teaching Jina properly.  I must say that I am not sure how she reached that conclusion, and if she reached it before the discussion with the applicant, then it seems to have been reached without full consultation.

Marianne Barlabas gave evidence that the sock shop at Chadstone was a small shop and that after the initial trial period she and Jina worked in close proximity, regularly did things together and constantly talked over things.  She gave evidence that Jina failed to come in fifteen minutes early to learn the till and said that Jina’s basic selling technique was fine but that she did not have a good product knowledge.  Marianne said that Jina took lunch breaks that were two, three or five minutes too long and once twenty minutes.  She said that Jina made errors with telephone messages and sometimes didn’t use samples.  Marianne described what she called a “counselling session” with Jina on 6 April 1994 which was held during a quiet period in the store.  Marianne said:  “I went through everything again with Jina, we had to work a bit harder and also need to know how to prepare the till.”

In her evidence Mrs. Sklivas said she had no recollection of such a counselling session.

Given that Marianne and Jina were regularly involved in one to one discussions I can see how there might be a great deal of difficulty in distinguishing between what was training, what was general daily discussion in relation to the shop and what was allegedly counselling.  In the circumstances, I find that the applicant was not aware that “a counselling session” had taken place.

Marianne gave evidence that following the discussion on 6 April 1994 Jina’s behaviour did not change.  This was also the situation following Dianne’s discussion session on 11 April 1994.  There was no improvement over the next two weeks and Dianne and Marianne made the decision to terminate Mrs. Sklivas.

In cross examination Marianne provided a list of concerns with Jina including: (a) constantly being two, three or five minutes late which she felt became a serious matter: (b) not coming in fifteen minutes early to do the till: (c) not helping enough with re-stocking: (d) once leaving credit slips beside the till: (e) not being a team player.  Marianne said that although they were all small things they didn’t work within a working environment.  However, as I indicated previously I am of the firm view that Mrs. Sklivas was not made aware of the fact that what seemed to be relatively small matters were becoming such significant matters to Marianne.

Virginia Russell gave evidence that she felt she was left on her own in the store longer than she should have been by Jina and that Jina would leave the store to do her own shopping.  She said that Jina and herself balanced the till a couple of times on the Saturday morning and that Jina opened anc closed the store on the Saturdays.  Neither Marianne nor Dianne gave Jina’s alleged lack of supervision of the store as a reason for her termination.

Mrs. Sklivas gave evidence that although she had some difficulty in the beginning she learnt from her mistakes.  At one time a person from the shopping centre complex did a spot check of her performance and was very impressed.  The applicant said that she ran the shop on alternate Thursday and Friday nights and alternate Saturday’s and felt that Marianne was pleased with her performance.  Mrs. Sklivas recalled only three particular areas of complaint.  Dianne indicated to her that she didn’t like the way Mrs. Sklivas approached some customers so a change was made.  Marianne complained on one occasion about getting back late from lunch.  There was also one complaint about misplaced invoices but that didn’t happen again.  Mrs. Sklivas said that she had no idea that her job was at risk and that she might be sacked.  She was shocked and distressed by her termination.

In cross examination Mrs. Sklivas basically denied all suggestions that her work or performance may have been unsatisfactory.  In particular, she denied that she had left Virginia alone in the shop apart from her normal breaks, and denied that Marianne had been critical of her performance.

In my opinion the respondent has failed to satisfy the onus that it had a valid reason or reasons for termination.

On the respondent’s own evidence Mrs. Sklivas was responsible, she knew how to sell and she was regularly left in charge of the store.  There was no evidence that she contributed to any drop in sales or loss of customers or loss of status of the store.  The reasons given by Dianne and Marianne for the termination do not seem to justify such severe action.

The respondent submitted that the applicant was not prepared to take directions or instructions, but as I have said there seems to be a very grey line between training, general discussion in the shop and instruction or direction and on the evidence I am not prepared to find that Mrs. Sklivas disobeyed directions or instructions.

The respondent submitted that the applicant failed to meet the required standards or improve her performance after counselling.  In my opinion it was not made sufficiently clear to her that she was being counselled, admonished or asked for improvement and I reject that submission.

I do take the view that once her three week trial period expired that Mrs. Sklivas was not putting in the same degree of effort as she had previously.  Her denials of most of the matters put to her seemed contrary to the overall evidence and I am certainly of the view that there is some merit to the proposition  that she had a high opinion of her own methods and capabilities and was reluctant to listen.  However, in my opinion there was not sufficient in the applicant’s capacity or conduct to constitute a valid reason for dismissal.

In the alternative, I also find that having regard to the employee’s capacity and conduct the termination was harsh, unjust or unreasonable.  In Byrne and Frew v Australian Airlines Ltd 1994 120ALR page 274 the full Federal Court had to consider whether a termination was “harsh, unjust or unreasonable” in breach of an Award.  The Court held that a lack of procedural fairness was “unreasonable” and amounted to a breach of the Award.  The test to be applied is an objective one.

In the current case I do not believe that the respondent adequately investigated the applicant’s capacity and conduct, in particular given Marianne’s inexperience as a manager and given that she was responsible for training the applicant.  For example, a round table discussion between Dianne, Marianne and Jina may have greatly assisted all three parties.

Further, I am satisfied that the applicant was not given a warning which made it sufficiently clear to her that her continuing employment was in jeopardy.

The obvious solution would have been to provide a written warning notice.  A written warning forces the employer to articulate the shortcomings it perceives in the workers conduct, capacity or performance and gives the employee certain knowledge of what is being alleged and what is required.  If termination of employment is being considered then that can be clearly spelled out.

Section 170CA of the Act has as one of its objects to give effect, or give further effect, to the Termination of Employment Recommendation 1982.  Paragraph 8 of the Recommendation states: “the employment of a worker should not be terminated for unsatisfactory performance unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform her duties unsatisfactorily after a reasonable period of time for improvement has elapsed.”

This provides, at the very least, the indication that a written warning is required.

I therefore find that the respondent’s termination of the applicant was in breach of Section 170DE of the Act.

For similar reasons I find that the respondent has breached Section 170DC of the Act by terminating the employee’s employment for reasons related to the employee’s conduct or performance without having given the employee the opportunity to defend herself against the allegations made, the evidence failing to indicate that allegations were either formulated or put to the applicant.

The applicant sought reinstatement, but the manner in which she gave her evidence in this regard was not entirely convincing.  She conceded that she was concerned about the respondent’s attitude towards her.  The respondent submitted that reinstatement was not a practical remedy.  The Chadstone store was a two person store and for whatever reason Marianne and the applicant had some considerable difficulty working together in what was a very small shop area.  There seems to have been a breakdown in the working relationship.  Marianne is still the manageress of that store and there is now another full-time employee.  The respondent has three other shops in the metropolitan area and these are currently fully staffed with only two or three full-time people in each shop.  Geographically these are a considerable distance from the applicant’s home and inconvenient for the applicant.  Taking these factors into account I do not feel that reinstatement is practicable.

In my opinion the applicant should be compensated for her unlawful termination.  Although the applicant has not yet resumed work the evidence concerning her efforts to find work is very limited.  Both parties agreed that she was responsible and knew how to sell.  Allowing her some time to recover from the initial shock of her termination, I believe that a period of three to four months to find alternate employment would be a reasonable allowance in all the circumstances and provides a fair basis for awarding compensation in this case.

ORDERS

1. I declare that the termination by the respondent of the employment of the applicant contravened Division 3 of Part VIA of the Industrial Relations Act 1988.

1. I order that the respondent pay compensation to the applicant in the sum of $6,000.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of Judicial Registrar Chancellor.

Associate  :              
Date  :              2 November 1994
Appearances:
Counsel for the Applicant                 :              Mr. S. Stuckey
Counsel for the Respondent             :              Mr. B. Shaw
Date of Hearing  :              24 October 1994

Judgment  :              2 November 1994