Judith Watt v Intercultural Management Services Pty Ltd
[1996] IRCA 65
•29 February 1996
DECISION NO: 65/96
C A T C H W O R D S
INDUSTRIAL LAW - UNLAWFUL TERMINATION - period of PROBATIONARY EMPLOYMENT - unsigned and unconcluded written CONTRACT OF EMPLOYMENT - whether term of PROBATIONARY EMPLOYMENT contained in written CONTRACT OF EMPLOYMENT enforceable - whether DOCTRINE OF ESTOPPEL applicable - VALID REASON
Industrial Relations Act 1988 ss.170CC, 170DC, 170DE(1), 170DE(2)
Industrial Relations Regulations Reg. 30B(1)(c)
CASES: May & Butcher Ltd v The King [1934] 2 KB 17
The State of South Australia v The Commonwealth of Australia
108 CLR 130
Summergreene v Parker 80 CLR 304
The Crown v Clarke 40 CLR 227
The Commonwealth of Australia v Verwayen 170 CLR 394
Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd
(1988) 14 NSWLR 523
Nicolson v Heaven & Earth GalleryPty Ltd (1994) 57 IR 50
Cooper v Darwin Rugby League Inc (1994) 57 IR 238
Selvachandran v Peteron Plastics Pty Ltd, (unreported), Northrop J., No. VI 1322R of 1994, 7 July 1995
JUDITH WATT v INTERCULTURAL MANAGEMENT SERVICES PTY LTD
No. VI 3682 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 29 February 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3682 of 1995
B E T W E E N :
JUDITH WATT
Applicant
AND
INTERCULTURAL MANAGEMENT SERVICES PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 29 February 1996
THE COURT ORDERS THAT:
Within 14 days of the date of these orders the respondent pay to the applicant the sum of $13,153.85 compensation.
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 3682 of 1995
B E T W E E N :
JUDITH WATT
Applicant
AND
INTERCULTURAL MANAGEMENT SERVICES PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 29 February 1996
REASONS FOR JUDGMENT
The applicant seeks compensation alleging that in terminating her employment on 23 June 1995 the respondent contravened Division 3 Part VIA of the Industrial Relations Act 1988 (the Act) and, in particular, sections 170DE(1), 170DE(2) and 170DC thereof.
Whilst conceding that it did terminate the applicant’s employment on 23 June 1995 the respondent relies on section 170CC of the Act and Regulation 30B(1)(c) of the Industrial Relations Regulations arguing that the applicant is excluded from the operation of Subdivisions B, C, D & E of Division 3 Part VIA of the Act because she was serving a reasonable period of probation determined in advance. If unsuccessful on this jurisdictional point the applicant also argues that the termination was lawful on its merits.
The matter proceeded over four days of hearing with the following witnesses called to give evidence:
by the applicant
(i) The applicant; and
by the respondent
(i) Elizabeth Louise Lane (Lane)
(ii) Lorraine Winnifred Allan (Allan)
(iii) Susan Johnston (Johnston)
(iv) Dallas Stephens (Stephens)
(v) Maree Lund (Lund)
BACKGROUND
The applicant is 56 years of age having spent the better part of her working life as an educationalist and teacher. She was Director of Studies at Korowa Anglican Girls’ School before taking up a position for some nine years as Principal of Morongo Girls’ College. In November 1994 Morongo closed and the applicant sought alternative employment.
The respondent operates a student exchange program placing Australian students at international locations and foreign students in Australia through a number of cultural exchange programs. The respondent employs some fourteen staff who look after its inbound and outbound student programs. Lane is the founder of the business and a director of the respondent carrying the title of National Director. The offices of the business, located in Pearcedale, are attached to Lane’s private residence. It would be fair to say that Lane kept a close eye on all aspects of the programs created by her in 1983; evidenced by her requirement that copies of all outgoing correspondence be left for her perusal.
The respondent’s operation involves the movement of some 750 students each year; requiring careful liaison with affiliate organisations overseas, schools (the source of future exchange business), parents and host families, just to mention a few.
The applicant first became aware of the respondent’s organisation in her role as Principal of Morongo when the respondent sent representatives to her school to promote the respondent’s programs and some of Morongo’s students applied to join the various programs offered. Otherwise, the applicant had no direct contact or association with the respondent until she saw two advertisements appearing in the Age newspaper on 21 January 1995 (Exhibits A1 and A2) seeking applicants for the positions of “Public Affairs Director” and “Programs Manager”. The advertisements were placed in the newspaper by Quest Personnel, a recruitment agency performing staff recruitment work for the respondent since 1992; such work including the interview of applicants for positions before sending them to the respondent for further interview.
It was Lane’s evidence that the position of Director of Public Affairs was created by her to hand over part of her own duties in public relations to someone who could draw both the inbound and outbound departments together and take advantage of the source of new host families provided by the parents of the outbound students.
A principal of Quest Personnel, Allan gave evidence that she did not originally interview the applicant for the position of Director of Public Affairs however she was in contact with the applicant, advising her after her first interview with Lane that she had not been successful in obtaining the Director of Public Affairs position offered and applied for. She also told the applicant that Lane was still interested in the applicant and that a position may become available in the future. This led to some continuing contact between Allan and the applicant between February and April 1995.
When the applicant was interviewed by Lane for the position of Director of Public Affairs she was given a job description and during a long interview lasting more than an hour they discussed the exchange programs and the nature of the organisation. The applicant recalled that at the time of the first interview Lane was uncertain about the position she would have available.
At that first meeting there was no discussion of any written terms of employment and certainly no discussion of any requirement that any position offered be subject to a three month period of probationary or trial employment.
The applicant continued to seek employment elsewhere until either she telephoned Allan or Allan telephoned her asking the applicant if she was still interested in a position with the respondent. This call came about because the person hired by the respondent in February 1995 had not been suitable.
The position of Director of Public Affairs was not readvertised, the only arrangement being that the applicant was to be reinterviewed by Lane on 5 April 1995.
The second interview took place at the respondent’s premises with further but not exhaustive discussion of the items referred to in the position description given to the applicant (Exhibit A3). It is apparent that during this interview there was some detailed discussion of the remuneration package; namely $50,000 per annum and the entitlement to a fully maintained vehicle. It was agreed that the respondent’s Business Manager, Johnston, who is also Lane’s daughter, joined the interview towards its conclusion to discuss superannuation and car allowances with the applicant.
No written contract was available at the interview however the applicant did make notes on the position description document, indicating to the Court that these notes were made whilst there was general discussion on various parts of the document as well as matters not referred to in the document such as holidays.
At the end of the interview it was agreed that the applicant was to be offered the position with a starting time after the Easter holiday on Tuesday, 18 April 1995. Because of the imminent holiday period there was also an arrangement that a contract be delivered to the applicant’s home beforehand. Lane told the Court that she then spoke to either Allan or another person at the employment agency, Jill Graham (who was the agency contact named in the advertisements) and instructed the person she spoke to to telephone the applicant “... and we will make an offer to her and gave her (the agency person) the specifications of the offer”. When asked by her Counsel, Mr McDonald, what the specifications of the offer were Lane replied “$50,000 plus a car”.
Allan’s evidence was interposed during Lane’s testimony with the consent of Mr Lacy, the applicant’s Counsel. I considered Allan to be a witness of credit, however, her evidence suffered from the not uncommon difficulty of failing to recall all the actual conversations alluded to but believing certain matters did occur and reconstructing events from those matters. For instance, when Allan was asked to say when it was she contacted the applicant to let her know that the respondent wished to reinterview her, Allan said, “Working back I can. I understand that Judith started in early, or in April, and because I know she started after Easter, I figured that the discussions I had with her must have been prior to Easter which was in early April”. Allan agreed in cross-examination that she could not recall exactly when the abovementioned discussion occurred. She also told the Court that she had a discussion with Lane which she believed occurred after the reinterview of the applicant but before Easter when Lane told her that she wanted to employ the applicant. In that conversation they allegedly discussed a trial period of employment both because this was a standard procedure with the respondent’s placements and also because Allan was concerned about the applicant starting in the position of Director of Public Affairs when the previous employee had been unsuitable.
Allan could not remember when, what date, day or time she spoke to the applicant or even who initiated the conversation during which Allan allegedly indicated that there would be a trial period of employment and that it was in both parties’ interests that there be one. Allan alleges that the applicant did not respond to this advice when it was given to her.
Allan agreed that in her agency business she has many discussions on trial periods and, indeed, she usually told potential employees of the respondent that there was a trial period. When told that the applicant categorically denied any conversation with Allan between the date of the applicant’s reinterview on 5 April 1995 and 18 April 1995, much less any discussion of a trial period of employment with her, Allan attempted to rationalise the position by saying that it was common courtesy and usual for people to call the agency to tell them that their application had been finalised with the employer. She did however agree that there was no obligation on the person applying for the job to do this and, more importantly, she agreed that because she could not give a precise date the applicant could be correct when she says that she did not have a conversation with Allan between 5 April 1995 and 18 April 1995.
The applicant in any event conceded that prior to commencing her employment she received and read the written contract of employment containing as it does a term providing for a three month period of probationary employment.
Insofar as there is a dispute about the terms of the contract of employment, Allan’s evidence, if accepted, only confirms that the applicant was on notice that the respondent wanted to engage her on a trial basis. Because Lane failed to refer to any discussion of a trial period with Allan and further because of Allan’s tendency to reconstruct rather than rely on actual recall, I have not accepted that it is more probable than not that the conversation alleged to have taken place took place at all or was engaged in in the period before the applicant commenced her employment.
THE WRITTEN CONTRACT
On either 11 or 12 April 1995 a letter of offer and an accompanying contract and position description were delivered to the applicant’s home. She says that she read the documents and attempted to telephone Lane to discuss some concerns she had with the terms of the written contract. An answering machine responded to her call and, because it was a holiday period, she did not leave a message for Lane.
Exhibit A4 contains a copy of the letter of offer dated 11 April 1995 which says -
“Dear Judith,
We enclose herewith our offer of employment. If agreeable please return one copy of the contract to us.
We would like to take this opportunity to welcome you as a valued member of our organisation.
Yours faithfully
Betty Lane,
Director”
The position description is incorporated in the contract and it is important to note that the position description was altered in a number of ways following the interview. The offer of employment was for a position as Director of Public Affairs commencing on 18 April 1995. The clauses of the written contract of concern in this proceedings are clauses 2, 8.1 and 8.2 set out as follows:
“2. PROBATIONARY PERIOD
During the first three months of your employment with the Company, you will be employed on a probationary basis (“the probationary period”). During the probationary period this contract of employment may be terminated by either party on not less than 5 days notice in writing. In the case of notice by the Company, it may, at its election, pay 5 day’s salary in lieu of notice.”
8.1 Annual Leave
(a)The Employee is entitled to 4 weeks’ paid annual leave on the completion of 12 months of service and proportionally less for any lesser period. This 4 weeks annual leave entitlement is cumulative.
(b) Annual leave shall be taken not more than 2 weeks’ at a time.
(c)The time at which leave is taken must be agreed at least 3 months in advance with the Company to enable the National Director sufficient time to make alternative arrangements to cover the Employee’s absence.
8.2 Sick Leave
(a)The Employee is entitled to 38 hours of sick leave per annum, non-cumulative”
It was not contested by the respondent that the question of probationary employment was not raised by it directly with the applicant at any stage prior to the applicant commencing employment. Neither is it contested that on her attendance at work on Tuesday, 18 April 1995 for the first time the applicant responded to Lane’s query as to whether she had received the contract by confirming that she had and stating that she wished to discuss a couple of the terms of the contract. It is not clear whether she then identified these areas of concern as being annual leave and sick leave. Lane was too busy to have any discussion there and then, arranging to see the applicant on the next day. That appointment was cancelled and they met on Friday, 21 April 1995 some days after the applicant had commenced her employment as Director of Public Affairs. At that meeting there was discussion of the annual leave and sick leave entitlements because the applicant sought to be able to take all her leave in one period and also sought cumulative sick leave entitlements. There were discussions of other matters including discussion of a change of title for the applicant from Director of Public Affairs to Deputy Director. It was alleged by the applicant that this change of title was suggested by Lane. I found Lane’s evidence on this matter unconvincing as she first said that she would not have agreed to that change and then went on to suggest that they may have discussed the change in title. She also attempted to suggest to the Court that such a change did not come about and she did not know of it being implemented at any stage. This is inconsistent with her obvious interest in and knowledge of the affairs of the business with copy correspondence passing over her desk bearing the changed position title. On balance I accept the applicant’s evidence on this change. The significance of the change lies more in the fact that the parties agreed to a change from the position title in the written contract rather than in any apparent alteration of the applicant’s duties.
There were discussions of other matters at the abovementioned meeting, however, concentrating only on the contractual issue for the moment, the upshot of the meeting with Lane on 21 April 1995 was that there was no agreement by Lane to altering the written terms of the contract in the manner sought by the applicant. Indeed, the parties remained in a position where there was no consensus on these two issues. It was alleged by the applicant and this was not seriously contested by Lane that the applicant was asked to draw up a “statement” concerning each proposal which Lane would give consideration to.
The applicant never signed the written contract. She did draft the “statement” (Exhibit R1) but because Lane was unavailable and when asked was too busy to set aside time to speak to her the document was never given to Lane nor was it the subject of any further discussion between them.
Again, just keeping to one side matters concerning the applicant’s conduct or performance during the currency of her employment to 23 June 1995, the applicant having failed to obtain an audience with Lane to discuss the terms of her contract of employment, on 20 June 1995 wrote a letter to Lane (Exhibit A9) and left it in Lane’s in-tray. The letter made the following request:
“Dear Betty
I request a time for a private interview with you, of least one hour’s duration, by 5.00pm Friday 23 June 1995, to discuss and clarify
(i) the duties expected of me which were outlined verbally and in writing at the time of my appointment as Deputy Director in April 1995, and
(ii) the terms and conditions of the employment contract proposed between Intercultural Management Services Pty Ltd ACN 006 869 861 and myself. These terms and conditions were also outlined verbally and in writing at the time of my appointment but have yet to be mutually agreed to and finalised by our signatures.
All attempts to arrange a meeting following my verbal requests to discuss both of these matters have met with refusal on your part to make an appointment time. It has therefore become necessary to make this request in writing.
I am available at your convenience, at a reasonable time, in or out of office hours.
Sincerely
Judith M Watt”
As it turned out by 5.00pm on Friday, 23 June 1995 the applicant was no longer employed by the respondent. The written request for an opportunity to amongst other things discuss the terms of the applicant’s employment so enraged Lane she was driven to spend two hours after midnight typing the most extraordinary diatribe as a response. The full effect of the response can only be gained from reading it in its entirety:
“Mrs. Judith Watt
Dear Judith:
Finally sorting out my morning mail at 1900, I was appalled at your outrageous request for an hour of my time, with a deadline attached! Do we live on the same planet? Are we both in Australia? Both work for the same organisation? Share the same room? Where are you? Where have you been?
Do you ever look at the diary? at the Priorities for the week? Have you no sensibility as to what is happening around you? When I have taken on the IB Manager’s job, when we have all been overwhelmed with the responsibility of taking up the failure of the Inbound Department for several weeks to fulfill obligations, when the Outbound Department has been unable to meet its quota of appointments, presentations, recruits, when I have had to postpone three essential overseas trips, when SCCE has been exploited by dishonest employees and Local Coordinators, when I have been unable to fulfill all the goals set by myself for the National Director, when I have been putting in 140 hours a week to do your job and mine and the Inbound Director’s, when I have patiently been putting out fires lit by incompetent employees, you complain about my not discussing your employment contract and demand an hour of my time with a deadline! I have to say this is insensitive, thoughtless, and incredibly selfish. I now have to take time to reply to you.
You must be aware of the backlog of essentials on my desk. You must be aware of your inability to help me! Can you plan the presentation for the MLTAV? Can you train our Group Leader to Russia? Can you negotiate the forward exchange contracts for the FF? Can you even make an international phone call? Can you set priorities? Can you realise it is essential to let a student in Germany know that she is leaving today? Can you tell a potential participant whether or not the meeting is in Glen Waverley or Mt.Waverley? Can you type? Can you argue with the Post Office about their service? Can you even order the lunches; we do have to eat. Can you keep to our critical time path, write the newsletters, supervise the temps, etc. And especially, can you see that we meet our goals (so we can stay solvent) for outbound students and inbound host families? Can you answer one simple enquiry on the phone? How could you train others to do any of that? Can you represent us to the public? Can you be sure that all the information dissemination is correct and perfect?
How do you go finding an organisation to quote a tour to Italy? Your shocking performance in attempting to put together a quote for a university program in Australia was naive and dangerous. After spending a week of your time on the quote, you expected us to gross $500 for the whole project which would have taken several more weeks of our time and involved several salaries for that period. And your informal approach was frightening: looking at ads for apartments in the Melbourne newspaper, writing up a touristy description for university academics, etc.
I have tried to be tolerant, I have tried to find something you could do for us. But I have to keep reminding myself that we hired you at a top salary for SCCE, with a car! How do you think we all feel, to see you sitting there trying to learn the keyboard, not knowing how to use the fax, the phone, the photocopier, using the Admin Dept like a secretarial or clerical pool, asking them to find phone numbers for you, to bail you out on so many things, givng (sic) people erroneous information, not understanding airline procedures, still not au fait with our programs, procedures, policies, so naive about the business/administrative world.... Your so-clean desk with nothing urgent on it, when we are sinking mentally and physically under the pressure from parents, students, overseas, government regulations, airlines, etc.. You don’t seem to know any of this is happening, OR YOU DON’T SEEM TO CARE OR WOULDN’T YOU FIND SOME WHAT TO HELP?
We expected you to bring some knowledge, some skills to us. You seem to expect us to teach you! If we had hired you as an Admin Asst., we would have expected more knowledge, more skills.
All of us at S.C.C.E. know that I could never deputise the Director’s job to you. You have not brought enough administrative, travel, negotiating, public relations, international experience, cross-cultural, people, financial, marketing, time-management, entrepreneurial, historical, geographical, and other skills or knowledge with you. It is not our task to teach these to you; there are others in the workforce who could supplement what we have here now.
I am sure you have skills and knowledge which are needed in the educational field. Make your life more pleasant and honest. Give those skills where they are needed and appreciated. You are holding us back; you are preventing us from replacing you with someone who will help us. We are carrying too much of a burden without that extra help. And to see you not helping us is too much of a burden for all of us.
We want the students to arrive on time! We want it so badly we will work on it to get them here. We want to fulfill our contracts, our responsibilities. With a very few exceptions, we are working hard to make things right here. You don’t even seem to know what is going on.
In the middle of the worst schedule anyone could have every seen, you demand an hour of my time. When? You must see me hiring people to do my shopping, feed me. You must hear me telling my own family I don’t have time to help them. That I can’t attend meetings I have worked for years to be able to ‘reap the fruits” and I can’t even get there! You must see me not even able to get to the doctor, to get the dying dog to the vet, to hire someone to pick the flowers... You want to discuss your contract. I can’t believe it.
I will give you an hour after you find host families for the remaining six or nine (you should know!) students for July, the 33 remaining for August (or haven’t you learned how to do reports or read them?), after the presentations are ready for MLTAV, after the flights are rationalised, after the contracts are renewed with 15 affiliate for 1996, after the Procedural, IB, OB, LC, Schools, Handbook is finished, after the SE Asian inbound groups have been rationalised, after the fees have been set for 1996, after the outbound goals have been doubled, after all those newsletters have been written and published, after the Year 13 brochure is in the schools, after the airport schedules have been corrected, after the working holiday, interneships, au pair programs are in place, .... Have all the visas been sent? Have all the 30/6 reports to the Educations Depts. in all six states and two territories been done? How about the next edition of the POINTER -- due to be at the printer Monday?
Look at Priorities for the week of June 19th. What does it say BL is doing June 22, 23, and 24? And what is listed under “Executive”? Who is covering the airports? Are the grids correct? When does it start?
I ask you to attend to several of these by June 23rd.
I honestly cannot find one thing on your Position Description that you have done. I no longer believe that you have the experience to do any of these things. It is not our role to teach you; we do not have the time nor would it be successful.
I can’t convey how disappointed I am. But the lack of assistance has been quite detrimental to S.C.C.E. as the results show. It is difficult for us to see you so ‘out of water’. Please consider all of these things.
I regret that you caused me to take a very valuable two hours to roll this off. I had to give up meeting our precious host families last night (I guess you weren’t interested) and I gave up St Kevin’s tonight (a film of S.C.C.E. students in the U.S.A. in my home town and dozens of happy excited parents and students about to go) to prepare for an important appointment Friday, Saturday, and Sunday. Now I am further behind. And immensely disillusioned and disappointed.
I will expect you to meet several of the Priorities’ goals by June 23rd.
Betty”
Lane did concede that it would have taken her less than two minutes to tell her employee that she could not give her time sought for an interview and to make an arrangement for a convenient time. The letter is an irrational and neurotic response to a reasonable request in circumstances where earlier oral requests had not been successful and as Lane was well aware the contract had not been executed. Sadly Lane lacked the self awareness to concede that the time she spent on her reply and the resentment expressed in that reply was disproportionate. In making these comments I have borne in mind the absence of any evidence of direct criticism of the applicant’s performance or counselling about her performance prior to the letter dated 21 June 1995. The applicant was “stunned and amazed” when she received Lane’s letter. My rhetorical response is who wouldn’t be?
Undoubtedly there were events in the weeks preceding the correspondence prompting the applicant to query the duties expected of her. These included being instructed to collect the staff lunches. This entailed obtaining a list of orders and driving some ten kilometres to the nearest food outlet. This duty was not part of her job description and, taking into account Lane’s brooding resentment which manifested itself in Lane’s letter of 21 June 1995, whatever frustration she felt arising out of the applicant’s performance was initially displayed in the delegation of menial tasks to the applicant; in itself a form of humiliation metered out by an employer who appears to have had neither the time nor the skill to communicate properly with the employee.
To defend this proceeding the respondent relies on the written terms of contract. It does this even though it accepts that the contract was never signed after being sent to the applicant with the accompanying letter of offer and, more importantly, even though from the first day the applicant attended for work the question of the negotiation and acceptance of at least two essential terms of the contract were not agreed upon.
It was urged by the respondent that the terms of the written and unsigned contract were accepted by the applicant once she commenced employment on 18 April 1995 and any agreement to discuss her queries concerning clauses 8.1 and 8.2 might amount to a variation or amendment of the contract in the future.
The contractual question is an important issue both because the applicant seeks to avoid the consequences of the probationary term contained in the written document; not being the subject of any query or discussion on the commencement of her employment, and, further, because it raises the question of what terms applied to the applicant’s employment if the written contract is avoided in whole or in part.
Offer and acceptance are just two of the basic notions underpinning the law of contract. In this case there is clearly an offer contained in the letter of 11 April 1995 with the mode of acceptance requiring the return of one of the contract documents, presumably signed. The applicant wanted the job offered but she did not accept the offer in its entirety and, on presenting for employment on 18 April 1995 signified her non-acceptance by pointing to the fact that the contract was not signed and there were aspects of the contract which were not acceptable to her. This led to the arrangements for further discussion that week; such discussion not resolving the issue and still leaving at large agreement on at least two terms of the contract.
On the contractual question the applicant relied on a number of authorities the effect of which are that for there to be an enforceable contract there needs to be a concluded bargain; that is to say one where all that is necessary to be settled between the parties is agreed. (See May & Butcher Ltd v The King [1934] 2 KB 17 at page 21, and The State of South Australia v The Commonwealth of Australia 108 CLR 130, and Summergreene v Parker 80 CLR 304 at pages 312 and 313). In its decision in The Crown v Clarke 40 CLR 227 the High Court of Australia reiterated that without consensus no contract can exist; acceptance being as essential as offer in establishing consensus (see page 234 of that decision).
Because each case must be decided on its facts it is necessary to ask what would constitute acceptance in the present case. The respondent would have the Court construe the applicant’s conduct in commencing employment as an indication of acceptance in law. To do so, however, would be to ignore the applicant’s clear indication to the respondent that she had not abided by the mode of acceptance prescribed by the offer in returning one copy of the contract, the intention being that it would be returned signed, and that she did not accept or agree to two essential elements of the written contract; attempting instead to negotiate these matters further. Clearly it was open to the respondent to have insisted on the execution of the written contractual terms, and as the employer it was in a better position than the employee was and usually is to do this, or at the very least negotiate and conclude the terms of the written contract thereby binding both parties to a concluded bargain.
In the absence of written terms of agreement the question arises as to what terms, if any, should be implied? The respondent argues that the terms of the written contract were agreed to save for two clauses to be negotiated and such terms as were agreed to included the probationary term; therefore these terms should apply to the employment relationship because they were not disputed. The contractual document makes much of being an entire contract (see clause 14) and requires any amendment to be agreed to and be in writing (see clause 12). Where there is no concluded agreement to execute the document in the form it is given to the employee it would be extraordinary for the Court to then dissect the unexecuted written agreement removing from it the parts that are not yet determined and enforcing those parts either agreed to orally or which have not been the subject of any disputation. This would amount to a de facto enforcement of a bargain yet to be concluded. In fact where the written agreement fails because there is no concluded and binding agreement and the parties embark on a course of conduct giving rise to mutual obligations the Court may look to any oral agreement acted upon but not necessarily forming part of the written contract; for instance the agreement to hire the applicant at a remuneration of $50,000 per annum and a motor vehicle and any terms implied by law, in this case terms implied in the relationship of employer and employee.
One thing is obvious from the evidence and that is that there was never any oral or written agreement on the part of the applicant to a period of probationary employment before or after receipt of the written contract incorporating such a term. In making this observation I have kept in mind the applicant’s concession that she knew that the term was in the written contract sent to her for execution.
In furtherance of its contention that the terms of the written contract should be enforced the respondent argued that the doctrine of estoppel applies in this case and called upon the Court to, in the words of High Court in The Commonwealth of Australia v Verwayen 170 CLR 394 at page 413, “... prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold from suffering detriment in reliance upon the assumption as a result of the denial of its correctness.”
The respondent contends that the respondent relied on the assumption that there was a binding and concluded contract of employment at least in respect to the period of probation and has relied on that assumption to its detriment; thereby attracting the protection of the doctrine of estoppel. I can see no factual basis for bringing this doctrine into play. There was never any assumption on the part of the respondent that the written agreement had been signed or that the applicant agreed to all the terms of that agreement. On the contrary, the respondent was always on notice that some of the terms of the written agreement were not concluded and the document had not been signed. Indeed, Lane conceded that the Business Manager had reminded her at some stage after the applicant’s employment had commenced that no signed document had been returned to the respondent. Lane made, as it turns out, an incorrect assumption that the applicant was engaged on the basis of the terms contained in the unsigned agreement; such assumption being more to do with her ignorance of the need to conclude the contractual agreement rather than reliance on any representation, assurance or inaction on the part of the applicant inducing this assumption.
The respondent also provided the Court with a copy of a decision of the New South Wales Court of Appeal in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523. In that decision the Court held that, notwithstanding the failure or refusal by a property developer to execute a printed contract submitted by architects working on the property developer’s property, assent to the printed contract could be inferred from the whole of the circumstances of the dealings between the parties. The Court further made a finding to the effect that if an offerree with a reasonable opportunity to reject an offer of goods or services takes the benefit of them under circumstances which indicate that they were to be paid for in accordance with the offer it is open to the Court to find that the offer was accepted according to its terms.
An analysis of the abovementioned decision suggests it is clearly distinguishable. In the Empirnall case the contractual arrangements between the parties were already on foot when one party submitted a pro-forma contract for execution being informed by a representative of the other party that that document should be sent to them notwithstanding a comment that the person to whom it was being sent never signed contracts. Without going into the facts of that case in detail it is apparent from the decisions of the Appeal Court Judges that where a party to whom a written contract is sent for execution is silent in the sense that there was no response other than to proceed with the performance of the contract to develop the site, making payments without any further comment on the written document, the Court is able to infer implied acceptance by considering all the relevant facts and circumstances of the case. In the present case silence is not an issue. There was clearly an attempt to renegotiate some of the terms of the contract and these negotiations were incomplete even after nine weeks of employment.
On the basis of the abovementioned matters I find that there was no concluded written agreement as at the date of termination and certainly no agreed or implied term for probationary employment of some three months.
THE APPLICABILITY OF REGULATION 30B(1)(c)
Regulation 30B(1)(c) of the Industrial Relations Court Regulations states:
“30B(1) Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D, and E of Division 3 of Part VIA of the Act.
(a) ...
(aa) ...
(b) ...(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;
(d) ...”
Mr Lacy argues that in the absence of a concluded contract there could not be a period of probation determined in advance. Inasmuch as I have found that there was no concluded written contract between the parties as at the date of termination and there are no facts from which the Court could conclude that a period of probation was even the subject of agreement between the parties at any time before the applicant commenced employment, there is no basis for saying that probationary employment and the duration of the period of probation was agreed to. The use of the word “determined” rather than “agreed” in the sub-regulations gave rise to the argument that it is not necessary for the employee to agree to the period of probation. Notwithstanding the imprecise use of language the only credible way to interpret the regulation is to say that any decision by an employer to impose a period of probationary employment must be made by the employer at least prior to the employment commencing. When one considers the word “determine” in the context of Regulation 30B, it relates back to the duration of the period of probation and the need for this to be settled or decided in advance. In other words, the duration of the period of probation must be decided upon and the reasonableness of the period of probation as determined is assessed with regard to the nature and circumstances of the employment.
For there to be probationary employment and a period of probation determined in advance incorporated into the relationship of the employer and employee, this can only occur as a consequence of statute, implication by law or agreement by the parties to the contract of employment. There is no statutory requirement, implication by law or evidence of a concluded bargain giving rise to a probationary period of employment, even though the employer may have gone so far as to have determined or decided the period before the applicant commenced her employment.
The applicant took the argument one step further in also arguing that if a term of probationary employment was found to apply to this employment relationship, such period of three months was unreasonable having regard to the nature and circumstances of the employment. Rather than plumping for a lesser period it was asserted that the seniority of the position, the responsibilities carried and Lane’s own claim that one needed at least three months to acquaint oneself with the needs of the business all favour the view that a reasonable period was greater than three months. If this is so the exclusion found in Regulation 30B should not be applied. In support of an argument in favour of a longer period the applicant harkened back to her time at Morongo where new teaching staff were given a twelve month trial period to enable them to be both suitably inducted into the ways of the school as well as have their performance assessed.
In Nicolson v Heaven & Earth GalleryPty Ltd (1994) 57 IR 50 Chief Justice Wilcox had occasion to consider the matters relevant to determining the reasonableness of the period of probation. His Honour concluded at pages 58 and 59 of that decision that:
“Whether or not the stipulated period is reasonable, is a matter that has to be determined by the person hearing the case, as an exercise of judgment. The judgment should be based on the proved objective facts, not on someone else’s opinion. 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 extend 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 who 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 extent 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 per year. See s 170CD of the Act.”
The position held by the applicant is not one that can be easily compared with that of a teacher at an educational institution. I accept the respondent’s argument that the role was essentially a marketing one where, although the applicant was the second most senior member of the relatively small staff group, she was nonetheless quite closely overseen by Lane whose desk was a matter of metres from her desk. Accordingly, I find that a three month period of probation would be justified in all the circumstances of this case had it also been the case that the parties agreed to probationary employment and a period of probation was determined in advance.
Finally, it was submitted by Mr Lacy that apart from determining the reasonableness of the period of probation it was necessary to determine whether it was a genuine probationary period. This was because the written contract if applicable provided for termination of the contract on either party giving the other five days notice.
Mr Lacy argued that the words “the maximum duration of the period” do not as a matter of construction relate to the period of probation but only to the qualifying period of employment referred to in the regulation. On this construction he reasoned that the period of probation was not a genuine one because it was subject to termination by either party during the period of probation. The Court was referred to the decision of His Honour Justice Northrop in Cooper v Darwin Rugby League Inc (1994) 57 IR 238 where it was decided that a contract purporting to be one for a specified period of time; thereby excluding the employee from the operation of subdivision B of Division 3 Part VIA of the Act, was not a contract for a specified period because it contained provision for termination before the expiration of that period by either party on notice or the employer for the misconduct of the employee.
Paragraph 2 Article 2 of the Convention Concerning Termination of Employment at the Initiative of the Employer (see Schedule 10 of the Act) provides that:
“A member may exclude the following categories of employed persons from all or some of the provisions of this Convention:
(a) ...
(b)workers serving a period of probation or a qualifying period of employment, determined in advance and of reasonable duration;
(c) ...”
The Article says nothing of the duration of the period or the maximum duration of the period; being as they are an interpolation of the legislators.
Even if it is accepted that on a proper reading of Regulation 30B(1)(c) of the Industrial Relations Regulations the words “the maximum duration of the period” only apply to an employee serving a qualifying period of employment, it does not necessarily follow that (unlike contracts for specified periods of time) there is an inherent contradiction in there being a period of probation which the parties to the contract of employment can agree may be terminated on notice within the period of probation.
The rationale behind excluding from the operation of the unlawful termination provisions of the Act contracts of employment for a specified period of time and contracts where an employee serves a period of probation is not analogous. The former providing as it does the opportunity for both employers and employees to contract for limited periods of employment and the latter giving the employer the opportunity to test the quality of the employee’s performance over a reasonable period of time before being committed to, in many cases, an indefinite period of employment.
VALID REASON AND OPPORTUNITY TO RESPOND TO PERFORMANCE RELATED CRITICISMS
Lane’s letter of 21 June 1995 may well have been accepted by the applicant as a clear repudiation of her employment contract; requesting her as it did to give her skills “where they are needed and appreciated” and to stop preventing the respondent from replacing her with someone who would help the respondent. Notwithstanding the bluntness of the message conveyed the applicant continued her employment that day without any discussions with Lane about the contents of the letter or, indeed, any discussion of her request to meet and amongst other things finalise the terms of her contract of employment. Insofar as the letter contained criticism of the applicant’s conduct or performance in a number of areas of activity there was no occasion between the date of receipt of the letter and the date of termination affording the applicant the opportunity to defend herself against the allegations made.
On 22 June 1995 it was the applicant’s uncontested evidence the Outbound Co-ordinator asked her to assist in interviewing students going overseas because one interviewer was unavailable. Whilst interviewing a student in the company of another interviewer the applicant recalled that Lane “burst” into the room and instructed her to return to the main office to help look after the telephones because the administration people were “snowed under”. Lane informed the applicant that it was not her job to be doing the interviewing and that she should be back at the main office. On my reading of the position description originally supplied to the applicant (see Exhibit A3) and the amended document appended to the written contract of employment (see Exhibit A4), it was clearly comtemplated that her duties would involve her in the recruitment of students to travel overseas and the overseeing of the interview process.
Lane did not as with many other incidents deny that the event took place so much as she attempted to represent her behaviour on each occasion as being behaviour that was reasonable and tempered in the face of the applicant’s overwhelming incompetence.
As a witness Lane prevaricated and was generally unconvincing. On the other hand, the applicant impressed me as a straightforward witness who did not attempt to embellish or overstate the difficulties she encountered with Lane. On the whole I have accepted her evidence as being the more reliable of the two.
On 22 June 1995 it appears that Lane left a written and rather cryptic instruction in the applicant’s in-try to make certain travel arrangements (see Exhibit A11) specifically instructing the applicant not to delegate the task because “Everyone is involved in essential work”. The applicant’s evidence is that she did not receive the written instructions until much later in the day. In any event, Lane took the opportunity to again write on the evening of 22 June 1995 (see Exhibit A12) a long and detailed criticism of the applicant’s conduct and her performance in a number of areas stating:
Dear Judith:
Once again, I am sorry to have to point out that your performance today was not productive for SCCE. It was very frustrating for the staff that, when we asked for and counted upon your help, you ignored our requests, failed to realise priorities, and again, set up backwards even in our daily routine.
It was assumed you would continue in your daily bookings of schools for Jennifer’s presentations. This has not been done for days by you! The recruitment figures reflect this neglect.
We have given up expecting you to share these presentations.
Once again, since students are arriving in a few days without host families, we asked your help. It is uppermost in every staff member’s mind; you don’t even know what is going on with the not-placed students! Instead of following all the requests and directions I gave you, I could not find you this morning. About 0930, it was determined you were nterviewing (sic) a student -- one of the jobs to be done by other than office staff. Since we were down two staffers, I asked you to help answer the phones so Dallas could get the school requests, visa forms, HF confirmations out in Mignon’s absence. You told me you did not know how to use the phones!
I had given you a note re finding a HF for Lans-Hebrard. After a few hours, I found you had not “got to it”; you were busy doing references which someone had given you to do when we did not know what to give you to do. I ask you, “How was this helping our effort to get the students here and well-placed?”
More time elapses. I ask you if you have determined the viability of my lead in Cairns for the above student. You don’t know what I am talking about since you have not read my memo marked “Urgent”. When I tell you to read the memo which tells you to urgently contact Jenny T., you phone Jennifer next door! Priorities JUdith (sic); what are they again this week (and every week for the past two months)?
You must be aware that about 85 host families are phoning us wanting to know arrival times. The information is finally ready. Did you care? Were you concerned about it? Did you know what was holding it up? I ask you to ensure that it will be mailed and mailed properly today! You answer that you “can only do one thing at a time”. Everyone who applies for a job here gets my speech on being an air traffic controller and being able to keep 100 projects safely in control at once. You, especially, assured me that you could!
I ask you to supervise this important mailing. Later I find you collating the mailing with the Temp. That is not supervising the mailing. Are you sure all the confirmed HF got it? How? And how will you be sure that the new HF will get the info in time? (Do you know when the students arrive and why?)
Well, the HF would have never received the mailing if I had not come back to the office and found the envelopes sitting on a desk at 1600; the mail is picked up at 1530! I am sorry to have to tell you that supervising a mailing is not effective if it is not mailed! As all the staff know, the final steps are the most important: faxing it to the interstate staff before their participants receive it/putting our file copy away, posting it on the bulletin board/ and giving a copy to each staff member and putting the surplus away where it belongs. Don’t worry, I did that!
Now what is the next step in notifying these IB participants?
With regret, I learn that you were not able to place any of our last-minute emergencies.
Although you denied that I had asked you to do any other urgent things today, I find the attached note was also ignored. Now, how is Ted going to be the chaperone for the FNQ group if he can’t get there? That was an emergency, and still is! I will ask you to tell all the overseas affiliates and the students that their trip that they came around the world for is cancelled because you failed to pay for the rooms today! And you did not even check, as requested, with those bookings to see if they had the names. This is a serious business, promising rooms and travel and components and not doing anything about it when requested. Try to recoup this on Friday!
I hoped you could help Susan today by taking over the routine job of distributing faxes, ensuring that ones sent had gone through, not letting any mistakes be made here. You could not do that, forgot, ignored it, or would not admit you did not know how to check sending or receipt. Quite a few were stuck on memory; the schools were closed before they received them. Another day lost in getting the visas confirmed. Not very cooperative.
Unfortunately, after you left, we discovered that you still do not admit that you do not know how to use the database, and much irreplaceable information has been destroyed. Instead of using F7 when you wish to search for another name, you have been typing the second name over the first one, destroying our ability to search ever again for the first record.
As you know, I won’t be available tomorrow. I hope I will come back to some placed students, assistance with some of our workload dilemma, confirmed bookings in FNQ. Also lots of assistance with the OB, and partial preparation Of POINTER, which has to be mailed early next week. JL won’t be in either. Just keep making those bookings as well as finding HF!
I asked you to fill in time sheets, so we could point out to you how to best make your time here productive. I did not receive those at 1700. Please be sure I do on Friday.
sincerely,
Betty Lane”
The abovementioned letter was left in an envelope in the applicant’s in-try for collection by her on Friday, 23 June 1995. However, her employment was terminated well before she had the opportunity to read the letter which she took with her after she was terminated without being afforded the opportunity to defend or explain her position on any of the complaints contained in the letter.
The event precipitating the applicant’s summary dismissal occurred on the evening of 22 June 1995. On that evening the applicant was rostered to take the company mobile telephone to deal with calls coming into the student exchange office overnight. At approximately 11.30pm she fielded a telephone call from the parents of an exchange student in Japan informing her that their daughter had been “thrown out” of her host family home and was presently staying with and being cared for by one of her school teachers. Whilst the parents were upset it is the applicant’s uncontested evidence that after discussion with her they agreed that nothing more could be done until the morning. The applicant told them that she would deal with the problem when she arrived at work. Because she was responsible for taking the calls the applicant considered contacting Lane but deemed it unnecessary in all the circumstances. On her arrival at work on the morning of 23 June 1995 the applicant heard Lane, as she described it, “shrieking” the applicant’s name. She was confronted by Lane who accused her of being irresponsible because she had not contacted Lane once she had been informed of the problem with the student in Japan. The applicant claims that because of the “shrieking” and the angry accusations made she had little or no opportunity to respond and explain her conduct. In any event, shortly thereafter without being asked for any explanation Lane demanded the return of the applicant’s company car keys and arranged for a taxi to take the applicant home. Within five days the applicant received from the respondent a note offering her “best wishes” and five days’ pay in lieu of notice.
The respondent sought to justify the summary dismissal of the applicant by relying on her failure to follow what it described as the procedure for dealing with “emergency” phone calls where an employee is rostered to have the mobile telephone overnight.
The respondent’s witnesses other than Stephens who was not asked any questions on this matter all asserted that there was a procedure known at least to the staff with the use of the mobile telephone requiring the staff member with the overnight custody of the telephone to refer all emergency calls to Lane at whatever time of night these calls were received. This was because Lane has access to telephone numbers of overseas affiliates to enable her to deal with any threat to the security of an exchange student.
It would be fair to say that neither side disputed that the circumstance where the student is ejected from the care of their host family in a foreign country is a serious one. I did not understand the applicant’s evidence to be that she was anything but aware of the need to deal with the situation because in taking the mobile telephone she understood that she was responsible for attending to the calls to take the pressure off Lane where there was 24 hour telephone access to the respondent. However she denied ever being present at a staff meeting at which it is alleged that Lane informed staff that all emergency calls had to be referred to her (Lund also recalled being told at some stage that if Lane was unavailable the emergency was to be referred to Johnston) because she needed to initiate contact with her affiliates to take steps to protect the student. Regrettably even with volumes of paperwork and procedural directives this particularly important matter was not committed to writing. Exhibit A18 is the respondent’s procedures handbook containing a section on office procedures and telephones. Nothing in this manual refers to the alleged procedure in the case of night calls classified as “emergencies”.
Lund commenced her employment with the respondent on 14 March 1995 and recalled a meeting early in the piece when she and other staff were instructed on the use of the telephone. Johnston referred to an instruction given at a staff meeting when the telephone was obtained some nine to ten months earlier; that is to say March or April 1995 and Lane spoke of mentioning the procedure at staff meetings. Johnston claimed to have recalled seeing the applicant in attendance at the alleged meeting, however, none of the witnesses were able to give any real indication as to when the meeting occurred leaving open the possibility that it took place before the applicant commenced employment.
I conclude from the remarks contained in Lane’s correspondence to the applicant on 21 and 22 June 1995 that she did not expect to give nor did she offer any specific training or induction to the applicant whom she regarded as a senior appointment. This is consistent with the applicant’s evidence that she was left to find her own way on many matters to do with the respondent’s office procedures and methods of performing the tasks required of her. It is also consistent with the applicant’s complaint that she was not really fully aware of the kinds of circumstances the respondent now says it treated as an emergency and the respondent’s reasons for passing all calls of the kind involving a student thrown out of a host family home to Lane or, if Lund’s evidence is accepted, Johnston, who was junior to the applicant in the office hierarchy.
The applicant clearly understood the need to deal with the incoming calls and because the parents were comfortable with the fact that their daughter was staying with one of her teachers and further knowing that the girl had problems for some time in her exchange the applicant felt that the student was safe with her teacher overnight. More importantly, as the Deputy Director she was required by Lane to show initiative and to apply her own judgment and skill in the performance of her job. In this case, having had discussions with the student’s parents who appear to have been pacified by her she judged the matter to be under control. Whilst conceding that the applicant was required to show initiative and to exercise judgment in the performance of her job Lane told the Court that she had not given the applicant responsibility for dealing with emergencies. The position descriptions broadly defining her duties and her seniority in the organisation suggest otherwise.
The parents did not give evidence and there was certainly no evidence of any complaint from them as to the applicant’s dealings with them; nor was there any suggestion that any harm had befallen the student because of the applicant’s failure to contact Lane. Lane found out about the call by listening to her answering machine messages at 5.00am in the morning and some hours later sent the applicant packing without the benefit of any real or meaningful discussion of her conduct.
The respondent carries the burden of showing that first it had a policy of referring emergency calls to Lane, that such policy was known to the applicant and, further, such policy was one precluding the applicant from exercising any judgment or initiative in the matter whatsoever. I am not satisfied on the evidence of the respondent’s witnesses that it was made clear to the applicant that under no circumstances was she to exercise any initiative or judgment in these matters, given the requirements of the position descriptions and her seniority in the organisation.
Even if for the purpose of this proceeding the applicant by her action breached a known policy in respect to student safety, there remains the question of whether such a breach justified summary dismissal. There was no investigation of the event or any balancing of its actual consequences as opposed to the possibilities envisaged by the respondent. I am not satisfied that the event alone constituted misconduct or conduct of such a serious nature that it warranted dismissal or summary dismissal.
Lane alleged that her decision to terminate the applicant was a gradual one being made finally on the morning she learned that the applicant had, in her view, not followed the emergency telephone procedure. The evidence of the applicant is that in the weeks preceding the termination she was delegated tasks which were clearly not part of her job description and certainly not senior duties. This is why her letter of 20 June 1995 sought amongst other things to discuss the duties expected of her. The respondent’s behaviour in the weeks prior to her dismissal and the torrent of criticism contained in the letter of 21 June 1995 is consistent with the belief expressed by Lane in her evidence that the applicant was not so far as Lane was concerned able to perform the tasks required of her at the level expected by Lane. This observation says nothing about the reasonableness of the criticisms or those expectations.
The respondent’s correspondence on 21 and 22 June 1995 is also consistent with the desire to, as Mr Lacy put it, “shame” the applicant into leaving the respondent’s organisation, however, the events on the evening of 22 June 1995 caused Lane to lose her temper and decide to bring the employment to an end forthwith.
Accordingly, I am satisfied that the reason for termination was the alleged failure to comply with the company procedure on the evening of 22 June 1995. Because of my findings on the facts set out above such a reason cannot support a finding that the reason precipitating termination was a valid one in the sense that it was sound, defensible or well-founded (see Selvachandran v Peteron Plastics Pty Ltd, (unreported), Northrop J., No. VI 1322R of 1994, 7 July 1995 at page 6).
The allegations of poor performance contained in Lane’s correspondence broadly cover the allegations raised at hearing in support of the respondent’s contention that the applicant lacked the competence and the skills to perform the job and these matters collectively justified the termination of her employment or at the very least militated against any finding that the termination was a harsh or unreasonable one.
I have considered each of the matters itemised in the correspondence already set out in my reasons for judgment and the evidence of the witnesses on matters ranging from the use of the computer to the preparation and calculation of quotes for travel. The applicant, not surprisingly, steadfastly denied any allegation of incompetence in respect of each matter raised and, in most instances, pointed to the lack of any induction or training period when commencing the new position.
I am satisfied on the evidence that because of Lane’s belief that the applicant did not and should not at her level of seniority require any assistance in properly familiarising herself with the respondent’s work practices and needs and, further, because Lane showed a marked intolerance for people who do not work at the same hurried (or should I say harried) pace as herself, the applicant from time to time was not able to or was not in a position to meet and understand the demands being made of her. This finding, however, should in no way be construed as meaning that in each instance alleged the applicant was shown to have failed in her performance. For instance, whilst I accept that she may have from time to time had difficulties with the operation of her computer, the respondent’s evidence failed to establish that it was more probable than not that on each occasion the computer needed to be turned off and rebooted the person responsible for this interruption to the day’s activities was the applicant.
REMEDY
From what has already been said it is apparent that there were breaches of the Act by the respondent and, in particular, breaches of section 170DC and section 170DE of the Act.
In Nicolson v Heaven & Earth Gallery Pty Ltd, notwithstanding the employee’s failure to convince the Court that he was not a probationary employee at the time of termination His Honour, Chief Justice Wilcox went on to find that there was a breach of section 170DC of the Act in that the respondent had not identified the areas of poor performance and given the employee the opportunity to defend himself against these allegations in the period preceding the termination. As His Honour noted at pages 246 and 247 of his decision had he proceeded to judgment on the question of this breach of the Act it would have been necessary to consider what would have been likely to occur if there had been no breach.
On the evidence before him the Chief Justice noted that one of the operators of the respondent’s business had formed a strong view that the applicant was “not the person for the job” and, if His Honour had reached the question of compensation, he would have assessed it on the basis that a procedural irregularity had deprived the employee of his chance of returning his employment.
In the present case the correspondence alone demonstrates a strong antipathy on the part of Lane towards the applicant; this antipathy having already manifested itself in the weeks preceding the termination through the delegation of menial tasks to the applicant, the next most senior employee in the organisation. It would be naive to ignore the effect of such intolerance on the part of the employer on the long-term prospects of the position even if procedural and substantive fairness were observed in the termination process.
The abovementioned observation impacts on both the practicability of reinstatement and, in the alternative, compensation. There was no claim made pursuant to section 170DB of the Act because of the belated payment of notice monies after the applicant had left the respondent’s employment.
So far as reinstatement is concerned this was not sought primarily because since 11 December 1995 the applicant has been gainfully employed as the Chief Executive Officer and Warden of the Graduate Union at the University of Melbourne. Her salary is $65,000 per annum and exceeds that received from the respondent, which included the motor vehicle, and was agreed to be worth $57,000 per annum.
Taking into account the applicant’s new position and the other circumstances referred to above I am satisfied that reinstatement is impracticable. I am further satisfied that compensation should be limited to three months’ remuneration of $13,153.85 to allow for the possibility of the parties overcoming the difficulties encountered in a procedurally and substantively fair manner but also to allow for a real prospect of the applicant’s employment being lawfully terminated sooner rather than later.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
Within 14 days of the date of these orders the respondent pay to the applicant the sum of $13,153.85 compensation.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding thirty-three (33) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 29 February 1996
Solicitors for the Applicant: Phillips Fox
Counsel for the Applicant: Mr Brian Lacy
Solicitors for the Respondent: Corrs Chambers Westgarth
Counsel for the Respondent: Mr Michael McDonald
Date of hearing: 18, 19, 23 & 24 January 1996
Date of judgment: 29 February 1996
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