Kay Nicol v Australian Broadcasting Corporation
[1995] IRCA 479
•8 Aug 1995
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CONSTRUCTIVE DISMISSAL - REMEDY - WHETHER REINSTATEMENT IMPRACTICABLE - MANNER OF ASSESSMENT OF COMPENSATION
INDUSTRIAL RELATIONS ACT 1988 , ss170EA, 170DE, 170EE
Schuck v IPEC Transport Group QGIG 1 October 1993 p 317
Nicolson v Heaven & Earth Gallery (1994) IRCR 199
Perrin v Des Taylor Pty Ltd Moore J 10 March 1995
Cox v South Australian Meat Corporation von Doussa J 13 June 1995
Messervy v Maldoc Pty Ltd Wilcox CJ 30 June 1995
KAY NICOL v AUSTRALIAN BROADCASTING CORPORATION
No. QI94/0224
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE 8 AUGUST 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI94/0224
QUEENSLAND DISTRICT REGISTRY
BETWEEN: KAY NICOL
Applicant
AND: AUSTRALIAN BROADCASTING CORPORATION
Respondent
MINUTE OF ORDERS
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 8 AUGUST 1995
THE COURT ORDERS THAT:
1. The application be allowed.
2. The respondent pay to the applicant the sum of $23,547.00 within 14 days of today.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 94/0224
QUEENSLAND DISTRICT REGISTRY
BETWEEN: KAY NICOL
Applicant
AND: AUSTRALIAN BROADCASTING CORPORATION
Respondent
BEFORE BOULTON JR
PLACE: BRISBANE
DATE: 8 AUGUST 1995
REASONS FOR JUDGMENT
The applicant commenced employment with the respondent on 26 September 1988. She tendered her resignation on 20 October 1994, her resignation taking effect on 4 November 1994. Her initial engagement was as a publicity/public relations officer grade 3, radio division of the respondent, in Queensland.
The particular duties of that position appear in KN 1 to exhibit A1, an affidavit sworn by the applicant. They are as follows:
Responsible for the planning, preparation and dissemination of metropolitan radio publicity, regional and SRRN publicity; and implementation of national radio publicity campaigns for the State.
Liaise with local management on publicity promotions issues in the branch; maintain professional contact with all relevant local media.
Supervise the production of promotional material ensuring that it is complimentary to on-air presentation/promotions.
Supervise the work of subordinate staff, and attend to related administrative matters. Control budget expenditure and submit estimates.
Assist Manager Radio on corporate/public relations matters; act as co-host for official functions when appropriate.
Ensure that staff skills are developed as fully as possible.
Apply Corporate EEO policies.
The most important of them, in the applicant's eyes, was the first. The applicant was the senior publicity officer for the ABC radio network in Queensland.
The applicant's engagement was renewed a number of times. Her initial appointment expired on 31 December 1990. It was renewed for a further two year period. On 28 September 1992 the applicant signed a contract of employment with the respondent for a period from 1 January 1993 to 31 December 1994. That agreement contained an option on the respondent's part to extend the applicant's engagement for a further period of two years.
In carrying out her duties, the applicant undertook the following tasks:
Planning and implementing marketing strategies for each network together with the associated publicity and promotions.
Liaising with managers of ABC stations and departments in Queensland.
Coordinating and exchanging ideas with marketing colleagues throughout Australia.
Liaising with television and print media through press releases, media kits, press conferences and functions.
Launching ABC initiatives such as new stations, programs and presenters.
Building professional associations between ABC radio, corporate, arts and community organisations.
Supervising on-air promotions and scheduling.
Creating and organising special events such as the Queensland Rural Woman of the Year Award and the ABC Picnic in the Park.
Administering the ABC marketing budget for Queensland and supervising both a promotions officer and administration officer.
Reporting to the federal head of publicity regularly and to the Queensland ABC radio manager daily.
I heard a considerable body of evidence directed on the one hand, to the applicant's perception that the duties and responsibilities of her position were progressively eroded by her employer, and on the other, the respondent's denial that this had happened. I observed the applicant in the witness box for about a day and a half. Generally, I preferred the applicant's evidence, in the absence of key players for the respondent (to which matter I will return), which leads me to make a number of findings of fact, which hereafter follow.
The applicant was competent in the performance of her duties. A Mr Buchanan, ABC radio manager from a time before the applicant's engagement to about July 1992, attested to that, as did a Ms Hamilton, who was for a few years (1989 to December 1991) federal head of publicity and promotions for the respondent. The applicant was functionally responsible to Ms Hamilton. Of her, that is of the applicant, Mr Buchanan said, in March 1993, it is rare to find such an outstanding publicist, while Ms Hamilton said the applicant was an exceptional publicist.
Radio 4QR had a significantly important role in publicity campaigns for ABC radio in Queensland. For overall ABC radio campaigns it was vital to involve 4QR. It is the flagship station for the ABC in Queensland. A state publicist had to have vital involvement with it. 4QR had a significant role in generating contacts and profile for someone in the applicant's position.
I accept that while the applicant's duties made her responsible for the overall management of publicity for 4QR, regional radio and national networks, from about May 1992 the respondent's managers began a progressive erosion of these duties. Of significance was the creation in June 1992 of a 4QR promotions manager. From that time, the applicant's duties concerning promotions for 4QR ceased. She was replaced by a person with technical training, and no relevant experience in the promotions area.
The background to the change just outlined is that a Mr Milne was appointed to the position of 4QR manager in February 1991 until August 1993. A Ms McCosker was acting 4QR manager for periods during early 1993, and then from after Mr Milne ceased until June 1994. These two and the applicant did not get on. The applicant felt that Mr Milne was derisive and derogatory towards her. If he did not oppose her ideas, he was frequently negative about them. The applicant also swore that Mr Milne established the impression that he, rather than the publicity department, was responsible for public relations within 4QR.
In June 1992, Mr Milne stated at a meeting of the applicant and others that he was using the applicant's contacts and ideas so he could carry out 4QR promotions without reference to the applicant. The applicant subsequently raised this diminution of her role but her superiors did not act to check it.
Mr Milne seems to have been a source of discontent also for a number of ABC employees other than the applicant. The applicant complained to her superiors on further occasions about Mr Milne's treatment of her.
In about May 1993 Mr Milne began withdrawing technical support from the publicity department. This meant the applicant could not longer produce the full complement of on‑air promotions for 4QR and other networks. Again, the applicant raised the matter with her superiors but Mr Milne's actions were not countermanded.
On 7 October 1993 the applicant approached her state manager, by Email, in order to clarify the issues causing her concern. These included her dealings with the acting 4QR manager (Ms McCosker). She concluded by referring to the incidents therein described as an ongoing problem. The state manager, Mr Skyring, responded with a series of directives which the applicant felt further eroded her duties of employment.
The applicant received an Email from Ms McCosker of 9 November 1993 in which criticisms were made of her, and which she felt did nothing to clarify her role in respect of 4QR.
I pause to record that I am emboldened in the findings I have made thus far by the absence from the witness box of both Mr Milne and Ms McCosker. Mr Skyring, too, did not give evidence but he was, at trial, working in Austria.
In April 1994 the applicant met with Mr Chapman, Acting General Manager, Metropolitan Radio Stations. She outlined her problems to him and he said that the 4QR manager appointment would have to be sorted out before its marketing was. At a subsequent meeting, in July 1994 with Mr Chapman and a Mr Cullen, the new 4QR manager, the applicant was told that the 4QR promotions officer would work directly with the 4QR manager and not her.
In about July 1994 the applicant discussed her work problems with a Mr Fromyhr, head of the human relations section of the respondent. His response was that he had seen positions advertised in the public service every week and that would be her best bet. The applicant was left with the impression that her employer would prefer she left its employ rather than it address inconsistent management directives to the publicity department and her.
In about May and June 1994 the applicant had approached management requesting part‑time employment, or a redundancy package. She did this because of her superiors' failure to clarify her duties. These requests were denied, with her superior suggesting she should reconsider her future employment with the ABC, and think long and hard about her options.
In July 1994 the applicant presented a draft of duties she considered appropriate to her position and that of the marketing department. Her previous conduct, and this draft, revealed that she had never accepted the reduction of her involvement with and responsibility for 4QR publicity. Management did not advise her whether or not this proposal was acceptable.
On or about 26 September 1994 the applicant had a discussion with a Mr Wurth, Manager, ABC Radio Queensland, in relation to renewal of her contract. He said that he was pleased to have her on board. She had also spoken with a Mr Suprain, her federal functional head, the previous week, and he had said he did not want to lose her.
I consider that a renewal of the applicant's contract, to run from the expiration of her then contract, would have eventuated, had the applicant not resigned.
In October 1994 the applicant learned that Ms McCosker was to be appointed the acting manager of 4QR Radio while the manager was on leave. Given her previous dealings with Ms McCosker, this appears to have been the final straw. It caused the applicant to tender her resignation.
Constructive Dismissal:
I accept that the erosion of the applicant's duties and responsibilities, the failure of management to clarify the role of the marketing department, the long standing difficulties that department and she had experienced with working with Ms McCosker and the comments from managers about her future all contributed to the applicant's feeling that she was obliged to resign.
The respondent's conduct was such as to make the applicant feel obliged to resign - Schuck v IPEC Transport Group QGIG 1 October 1993 page 317. A constructive dismissal occurred. It follows that there was a termination of the applicant's employment at the initiative of her employer, which termination was unlawful, there being no valid reason or reasons for it within the meaning of subsection 170DE(1) of the Industrial Relations Act 1988.
Remedy:
On the applicant's behalf it was submitted that there were unacceptable problems or embarrassments or real prospects of a serious effect on productivity or harmony at the respondent's workplace were the applicant to be reinstated - Nicolson v Heaven & Earth Gallery (1994) IRCR 199 at 210. Given the background to the applicant's resignation and the staff with whom the applicant would have to resume close working contact, I agree that reinstatement is impracticable.
I have earlier found that the probabilities are, had she not resigned, the applicant would have been contracted to the respondent for a further two years from 1 January 1995. The evidence is that the applicant's gross salary at termination was $47,094 per annum. I do not have evidence of the value of any other remuneration paid to her. Since termination, the applicant has had casual work with the Royal Flying Doctor Service which has yielded about $3578, and a baby club consultancy which yielded a gross amount of $670. Since mid-March 1995 she has worked on a consultancy basis for three days per week with Turnbull Fox Phillips. This has produced gross earnings of $6018. She has been unable to obtain full-time employment.
The proper way to assess appropriate compensation is first to make an assessment of compensation for loss of the job, independently of subsection 170EE(3) of the Act. If the amount so assessed exceeds the maximum therein postulated, the maximum figure should be allowed - Moore J in Perrin v Des Taylor Pty Ltd 10 March 1995, von Doussa J in Cox v South Australian Meat Corporation 13 June 1995 and Wilcox CJ in Messervy v Maldoc Pty Ltd 30 June 1995. I take subsection 170EE(3) to mean that the maximum in respect of any employee is six months remuneration; for an employee not employed under award conditions, the maximum payable is the lesser of six months remuneration or $30,000 (the latter figure as adjusted - para 170EE(4)(b)).
I consider that the appropriate amount of compensation, by reference to the remuneration the applicant would have received, or have been likely to have received, if the termination had not occurred, is an amount that exceeds the caps imposed by subsection 170EE(3). Accordingly, I award the applicant the sum of $23,547, the equivalent of six months remuneration.
Having found a termination of employment in breach of the Act, I consider it unnecessary for me to deal with the alternative claim for damages for wrongful dismissal in the accrued jurisdiction of the court.
The parties delivered written submissions after the trial proper had concluded, the trial dates having been almost completely taken up with the calling of evidence. The last of those submissions was received by the court by mail on 7 July 1995.
The orders I make are:
The application be allowed.
The respondent pay to the applicant the sum of $23,547 within 14 days of today.
I certify that this and the preceding TWELVE (12) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 8 August 1995
Counsel for the Applicant: Mr Logan
Solicitor for the Applicant: June Anstee & Associates
Appearing for the Respondent: Mr Burrows
Date of hearing: 6,7 and 8 June 1995
Receipt of last written submission: 7 July 1995
Date of judgment: 8 August 1995
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