Joanne Margaret Milner v Amtron Australia Pty Ltd

[1994] IRCA 173

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - alleged failure of applicant to get on with others - no valid reason - termination on the grounds of sex - sexual harassment - reinstatement impracticable - compensation.

Industrial Relations Act 1988, ss.170DE, 170DF and 170EE.

Prince -v- Rentokil Pty Limited, unreported, Parkinson JR, 11 November 1994

JOANNE MARGARET MILNER -v- AMTRON AUSTRALIA PTY LIMITED

NO. VI 1433 of 1994

Before:     STAINDL JR

Place:      MELBOURNE

Date:       20 DECEMBER 1994

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1433 of 1994

BETWEEN:

JOANNE MARGARET MILNER
Applicant

AND

AMTRON AUSTRALIA PTY LIMITED
Respondent

MINUTES OF ORDER

20 December 1994  Judicial Registrar Staindl

THE COURT DECLARES:

That the termination of the Applicant’s employment by the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988.

THE COURT ORDERS:

1. That the respondent pay to the applicant compensation of $5,000.00.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1433 of 1994

BETWEEN:

JOANNE MARGARET MILNER
Applicant

AND

AMTRON AUSTRALIA PTY LIMITED
Respondent

REASONS FOR JUDGMENT (EX TEMPORE)

20 December 1994  Judicial Registrar Staindl

On 24 August 1994, Joanne Robertson (formerly Milner) filed an application in the Industrial Relations Court pursuant to section 170EA of the Industrial Relations Act. The application arose out of the termination of her employment by Amtron Australia Pty Limited (“Amtron”).

Amtron sells electronics components.  Its head office is in Sydney but it has a branch office in Melbourne.  In January 1994 the applicant was employed on a part-time basis to do receptionist/secretarial work.  In about May/June 1994 she was asked to work full-time.  She agreed to this.

Soon afterwards the applicant was asked to go to Sydney to learn the office procedure there.  She spent two days in Sydney and upon her return to Melbourne implemented several changes.  The most significant change affecting the company's Melbourne sales staff was the change to the filing system.  This essentially involved the sales staff being responsible for their own filing of documents, although a copy of some documents was also to be kept in a centralised filing system.

John Grant was and is Amtron's internal sales representative in Melbourne.  As such he spent a considerable time in the office.  Soon after this change was introduced he asked the applicant what she was going to do, “Sit on her arse and do nothing all day.”  It may be that the language used was considerably stronger than this, but it is sufficient for present purposes to note.  Whatever the actual words used they were said in a provocative and nasty manner.  The applicant was upset by their use and an argument ensued between her and Mr Grant.  During this incident Andrew Derrick was present, he was acting as a senior sales consultant and was therefore supervising the applicant and Mr Grant.  Because of this incident the applicant and Mr Grant were spoken to concerning the need to “get on” within the office, and were told that if the conflict within the office continued then one of them would have to go.  I note at this point that nothing further was said to Mr Grant, even though according to Mr Derrick it was Mr Grant's statement which led to the incident so described.

I turn next to deal with an incident which occurred on 19 August 1994. Mr Grant, Steven Duncan, Jim Allan and the applicant were present in the office for much of the afternoon, although Mr Allan was absent for some of that period.  At times Mr Allan read from a book of jokes that had been left in the office.  It is clear to me that the three men were being boisterous, raucous and that there was a deal of swearing involved.  However, it goes further than that.  The applicant gave evidence that Mr Grant said that he had no trouble getting women:  he then said words to the effect of, "you don't care what they say, you just turn them over and stick it to them in their arse".  Mr Grant vigorously denied this conversation, but I do not accept his evidence.  In general I find that he was not being frank with the court.  The applicant states that Mr Duncan was present during this conversation, although he could not recall such words being used.  However, he did recall some conversation about going to a nightclub and “trying our luck”.  It seems to me on balance that it was unlikely that Mr Allan was present during this conversation. On the balance of probabilities I find that the words as alleged by the applicant were used and that a reasonable person would have anticipated that the applicant would be offended, humiliated or intimidated by their use.  The applicant said to Mr Grant and others that they were in the office, or not at the pub, in such a way as to show her disapproval of their conversation.  She also complained by telephone on that day to Mr Robert Hastings, Amtron's General Manager in Sydney.

The applicant complained to Mr Derrick about the men swearing in the office.  Mr Derrick spoke to Mr Hastings and a decision was made that the applicant's employment would be terminated.  From the company's point of view this incident was said to be, "the straw that broke the camel's back".  Although this decision was made on Monday, 22 August, 1994 the applicant was not told about it until Wednesday, 24 August 1994, when a cheque representing her termination pay arrived from Sydney.  The respondent's case was that the applicant had been dismissed for two reasons, the first relating to the ongoing conflict within the Melbourne office;  and the second reason concerning the applicant's work performance.

The respondent relied on the two incidents outlined above as evidence of the applicant's difficulty relating to other employees.  In particular, it says that the applicant was warned in respect of the first incident.  However, as I have previously noted, the first incident was one which was initiated by Mr Grant.  Likewise, the second incident was one in which Mr Grant was blameworthy, not the applicant.  On this basis this does not constitute a valid reason for the applicant's dismissal.

The applicant's work performance was strongly criticised.  It was said that she failed to take and pass on telephone messages accurately; failed to file documents in the correct file, or filed them out of order;  and that she was both slow and inaccurate in her typing.  It seems to me that much of the criticism of the applicant was unfair.  It was said that these criticisms related to her performance of duties when she was part-time and then when she was made full-time.  If there had in fact been substantial problems with the applicant's performance of her duties in the first half of 1994, then it seems extraordinary to me that she would then be appointed full-time with no direction as to her improving her performance.

It may well be that there were some difficulties with the applicant's performance of her duties, especially in relation to the taking of telephone messages.  However, she was never formally warned or counselled about such alleged failings.  She was not given an opportunity prior to being dismissed to have her say about the alleged failings.  In my view the reason relating to alleged poor work performance is not a valid reason for terminating the applicant's employment.

One further point should be made about the circumstances of the applicant's dismissal.  At the time of her dismissal she was not given a reason for it.  The respondent says it did not want to upset her.  I might say that in most circumstances dismissing someone without a reason is likely to be more upsetting than providing a reason, but be that as it may, a court will regard with suspicion reasons for a dismissal only advanced after the dismissal.  In fact the applicant's mother rang Mr Derrick shortly after the applicant's dismissal to enquire of the reasons.  She was told that the applicant's work was not up to scratch.  When questioned further on this, Mr Derrick said that the applicant gave the wrong phone numbers, used the computer for her own purposes, and used the fax machine to send messages to friends.  There was no challenge to this evidence and it is noteworthy that the second and third of these reasons were not mentioned by the respondent's witnesses in their evidence (nor was the applicant cross-examined about them).  Rather than there being any incident which could be said to be the straw that broke the camel's back, it seems to me that the respondent was clutching at straws.

I have found that the respondent did not have a valid reason for dismissing the applicant.  In the circumstances of this case I also find that the dismissal was harsh, unjust or unreasonable, although it is perhaps unnecessary to make such a finding.

It was also argued by the applicant that the termination of her employment was contrary to section 170DF. Insofar as is relevant that section provides:

170 DF(1)“An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

(a)
.
.
.
(f)        race, colour, sex; etc.

Although the argument was not developed before me, there does seem to me to be some force in the applicant's contention.  I have earlier found that a reasonable person would have anticipated that the applicant would be offended, humiliated or intimidated by what occurred on 19 August 1994.  The language of this finding relates to section 28A of the Federal Sex Discrimination Act 1984.  Given this finding it seems to me that there is a causal connection between this conduct and the applicant's dismissal following her complaint.  It follows that the termination of employment was for reasons which included the reason of sex.  In my view it is up to an employer to rebut this reason and it has failed to do so in this case.

The person who apparently made the decision to dismiss the applicant, Mr Robert Hastings, was not called to give evidence. Given the lack of argument on this point I do not deal with it further, but there is a useful discussion of sub-section 170DF(1) in the case of Prince -v- Rentokil Pty Limited, a decision of Judicial Registrar Parkinson, dated 11 November 1994, in case number VI397 of 1994.

I turn now to the question of a remedy. The applicant gave evidence that she did not seek reinstatement, the dismissal had upset her greatly and she had been seeing a psychiatrist and having nightmares as a result. Given these factors I have formed the view that reinstatement is impracticable. I next consider the question of compensation pursuant to section 170EE(2) and (3). The applicant earned $400 per week: in a 6 month period her remuneration would have been likely to have been $10,400. From the time of her termination to date she has earned the sum of $2885.50. This income was earned from doing temporary receptionist/secretarial duties. Mr Lacy who appeared for the applicant conceded that this amount should be taken into account and that the amount of compensation should be $7514.50, although this makes no allowance for future income which may be earned by the applicant. In the circumstances I am of the view that the sum of $5000 is an appropriate amount of compensation to be paid. However, I add that I do not necessarily accept the basis of Mr Lacy's calculations.

I further note that there was some limited evidence of mental distress caused to the applicant by her dismissal.  It seems to me that it is possible that that is something that could be taken into account when making an order as to compensation.  However, I have not taken it into account in this case as I did not have sufficient evidence to form any such assessment.  Accordingly the order of the court is that the respondent pay to the applicant the sum of $5000 by way of compensation.

I certify that this and the preceding five (5) 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:  

Solicitors for the Applicant: Counsel for the Applicant:	Macpherson & Kelley Mr Lacy
Solicitor for the Respondent: Counsel for the Respondent:	Abbott, Stillman & Wilson Mr Robinson
Dates of hearing:	16 & 19 December 1994
Date of Judgment:	20 December 1994