Khoury v Elite Real Estate T/As Town and Country Real Estate and Kaltoum
[1998] IRCA 26
•30 June 1998
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW – TERMINATION OF EMPLOYMENT – VALID REASON FOR TERMINATION – not a valid reason for termination of applicant – CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND – no opportunity given by Respondent to respond to allegations of poor performing – REINSTATEMENT IMPRACTICABLE – Applicant now in secure employment – language after Termination wholly offensive to former employer -COMPENSATION – assessed on basis of period without work – no amount included for distress shock and humiliation of manner of termination – NOTICE OF TERMINATION not given – WAGES IN LIEU OF NOTICE not paid – PERIOD OF NOTICE – statutory period allowed of one week – EVIDENCE – lapsing by witnesses into first language without interpreter present – PRACTICE & PROCEDURE – no action taken on allegation that Subpoenaed witnesses not called as may harm business of respondent – Respondent resiled from earlier evidence.
Workplace Relations Act, 1996 (Cth) (formerly known as Industrial Relations Act 1988 (Cth)
ss 170DB, 170DC, 170DE(1)
Evidence Act 1995 (Cth) s 30
Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch (“Aitken”) (1995) 63 IR 1 at 9, Lee J
Gerard Westen v Union des Assurances de Paris (Madgwick J, 17 December 1996, unreported, decision no.660/96)
Burazin v The Blacktown City Guardian Pty Ltd (Full Court, IRCA, 13 December 1996, unreported, decision no.606/96)
Marlin –v- V Sahade Holdings t/a Crystal Carwash Café (McILwaine JR, 15 January 1998, unreported decision no. 2/98)
John Ronald Robson v Webb Bros Pty Ltd (McIlwaine JR, 8 April 1998, unreported decision no.13/98)
Singh v Vellios (McILwaine JR, 4 June 1998, IRCA decision no. 21/98)
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Perrin v Des Taylor Pty Ltd (1995) 58 IR 254
Lidell v Lembke T/A Cheryls Unisex Salon (1994) 56 IR 447
May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112
Paz v Mack trucks (McILwaine JR, IRCA 13 September 1996, unreported, decision no.668/96)
JULIE MARIE KHOURY V ELITE REAL ESTATE T/A TOWN & COUNTRY REAL ESTATE AND ELIE KALTOUM
NI 2324 OF 1996
MCILWAINE JR
SYDNEY
30 JUNE 1998
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIANEW SOUTH WALES DISTRICT REGISTRY No. NI 2324 OF 1996 BETWEEN: JULIA MARIE KHOURY
ApplicantAND: ELITE REAL ESTATE T/A TOWN & COUNTRY REAL ESTATE AND ELIE KALTOUM
Respondent
MINUTES OF ORDER
Judicial Registrar:
MCILWAINE Date of Order:
30 JUNE 1998 Where Made:
SYDNEY
THE COURT DECLARES THAT:
The Respondent has contravened section 170DB of the Act in that wages for one week was not paid in lieu of the period of notice required by the Act.
The Respondent has contravened section 170DE(1) of the Act in that it did not have a valid reason for the termination of the employment of the Applicant on 8 October 1996.
The Respondent has contravened section 170DC of the Act.
It is impractical to reinstate the Applicant in any position with the Respondent.
It is appropriate to award compensation to the Applicant in the sum of seven thousand, seven hundred and fifty dollars ($7,750).
The Court orders that:
The Respondent pay to the applicant within fourteen days the amount of three hundred and ten dollars ($310).
Any sum paid within fourteen days to the Australian Taxation Office, which the Respondent is obliged to pay on behalf of the applicant, or which can lawfully be made on her account, in respect of the sum ordered in paragraph 6 shall be pro tanto satisfaction of the obligations of the Respondent under these declarations and orders.
The Respondent pay to the applicant within twenty one days the amount of seven thousand seven hundred and fifty dollars ($7.750).
Any sum paid within twenty one days to the Australian Taxation Office, which the Respondent is obliged to pay on behalf of the applicant, or which can lawfully be made on her account, in respect of the sum ordered in paragraph 8 shall be pro tanto satisfaction of the obligations of the Respondent under these declarations and orders.
LIBERTY TO APPLY
Liberty granted to Elite Real Estate Pty Ltd trading as Town and Country Real Estate or Mr Elie Kaltoum to apply by Notice of Motion in accordance with the rules within twenty one days to the court for Mr Elie Kaltoum to be released from further obligation as a party.
Kate Benson
Associate to Judicial Registrar
McILwaine
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 2324 of 1996
BETWEEN:
JULIA-MARIE KHOURY
APPLICANTAND:
“ELITE REAL ESTATE PTY LTD T/A TOWN & COUNTRY REAL ESTATE AND ELIE KALTOUM”
RESPONDENT
BEFORE:
MCILWAINE JR
DATE:
03/07/97
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application by Julia-Marie Khoury for relief in respect of the termination of her employment under Division 3 Part VIA of the Industrial Relations Act 1988 (Cth) (“the Act”), now titled the Workplace Relations Act 1966 (Cth).
In her claim, Ms Julia-Marie Khoury (“the applicant”) describes her former employer as Mr Elie Kaltoum (“Mr Kaltoum”) of shop 5/1-9 Palmer Street Parramatta. The remedies sought by the applicant are reinstatement and compensation. There was evidence presented that the correct respondent in the case should be “Elite Real Estate Pty Ltd T/A Town and Country Real Estate”.
The application, dated 19 October 1996, was received by the Australian Industrial Relations Commission on 13 November 1996. The Court has a certificate issued by Justice Munro of the Australian Industrial Relations Commission dated 11 December 1996 in the following form:
“In accordance with subsection 170DE(1) of the Workplace Relations Act 1996, the Commission hereby certifies:
(i)that it has been unable to settle this matter by conciliation within a reasonable period, and
(ii)that the parties in this matter, having been invited to elect to have the matter dealt with by consent arbitration, have not so elected.”
There is no objection made to the certificate by either party. The applicant was not given a written notice of termination and so no question arises as to the application being out of time. The application is properly before the Court.
HEARING
On the first day of the hearing, Mr Wilson of Counsel represented the applicant. On the second day of the hearing, the applicant appeared without legal representation. Mr Hawach, solicitor, appeared for the respondent.
BACKGROUND
The applicant was born on 16 June 1978 and states that the work performed for her employer was “Property Manager”. The applicant started work for the respondent on 1 October 1996 and the last day she worked was 8 October 1996. The brief summary of reasons given for termination by the applicant in her application is:
“I was working at Richardson & Wrench, Parramatta, when I bumped into Elie Kaltoum one day, he asked me to come into the office an interview (sic) about a vacancy he had available, I went to interview 2 times and he practically begged me to work for him, he offered me a better position and a better wage, he also told me he wants me to be a long term employee. I excepted (sic) the position and started on the 1/10/96 at approximately 9 10 am. Elie called me into his office and told me that: “I spoke to my accountant and my accountant said that I can’t afford to pay you. But your (sic) most welcome to work for the experience.”
The applicant left school at 16 and at the time of ceasing to be employed by the respondent was 18 years of age. Her two-year employment history is chequered with a few positions; however, this is unexceptional for a person of her age who left school in year 10. Although her record only shows her as working for that two year period, there are at least two employers to whom the business was transferred and who retained her in the business. This meant that she was in employment for in excess of a year in the one position.
EVIDENCE OF THE APPLICANT
The evidence of the applicant was that her former employee, Mr Kaltoum, made a number of approaches to her and to her parents asking her to work for him. Mr Kaltoum was consolidating a new business and was seeking to obtain employees who had some experience in the Real Estate field and were inexpensive, in terms of employee cost.
The applicant reported that she was currently employed in a suburban Take Away Cake franchise. Prior to working for the Respondent the applicant was working with another real estate office in North Parramatta as a receptionist. The applicant testified that she has been in that position for two and a half months and her salary in that position was $241 gross and $217 clear.
About her engagement by Mr Kaltoum,
the applicant testified:
“I was approached by Mr Elie Kaltoum; he came – called me at the office and he came into the office. When he called he was – I had an interview with Elie Kaltoum a year before and he said he didn’t have a position available then and then I did three weeks temporary work at Grand Colonial Realty in Parramatta and he came into the office to speak to one of the sales people there and he’s seen me working here and he said that---This was in 1996. And that’s when he’s seen me working there, I told him I was working there temporary and then he – I bumped – I didn’t bump into him, we didn’t speak but I know that he’s seen me walking to Richardson & Wrench and he knew that I was working there. He gave me a call at the office asking me whether I wanted to work for him and I – he was telling me what he would offer me, and he offered me a better wage, a better position. He made it all sound, you know, promising and he said that if I---“
On 21 September 1996 the applicant went to the office and Mr Kaltoum wasn’t there. Later on, she went back to the office and the applicant maintained that Mr Kaltoum said “leave Richardson & Wrench and come in and work for me…….” The applicant said she was happy to work for him on the basis it was a full-time position and the wage was more than she was earning. The proposed hours of the property position were from nine to five Monday to Friday and she was to be employed as a property officer. The duties were to help people look for places to live in. It was in the rental department so the applicant was dealing with money, contacting people, leasing premises and also bringing new property managements to the office. The applicant regarded the new job as a promotion from her former position. Asked to say what was the salary offered to her, the applicant replied:
“The salary that was offered to me was 250 net and clear – gross was – I think $310 was the gross.”
Upon her termination the applicant said Mr Kaltoum gave her a cheque for $250. It appears that her evidence is not correct as only $200 was given to her. The applicant said that when she was working for Mr Kaltoum there were no complaints about her work. The applicant claimed that she brought into the business two new building managements. The applicant produced a number of references from her former employers. The applicant worked from Tuesday, 1 October 1996 to Friday 4 October 1996 inclusive, Monday 7 October, 1996 was a public holiday, and the applicant finished her employment on Tuesday 8. October 1996.
Asked what happened on 8 October 1996, the applicant testified:-
“Mr Elie Kaltoum called me into his office and he says he has bad news. Mr Elie Kaltoum said to me he spoke to his accountant and his accountant said that he can’t afford to pay me and that was it, that was all I was told.”
Were you given a week's notice?---No I was given no notice whatsoever.
. . .
Were you given a week's wages in lieu of notice?---No, I was given no notice
whatsoever.
Were you ever given in the week prior to that any warnings whatsoever
concerning your employment?---No I never thought that anything like that was
going to happen because all I was getting from Mr Elie Kaltoum is, good girl,
you know - you are doing great.
Were you ever warned in writing or otherwise - - - ?---No I - - -
- - - that your performance was unsatisfactory in any way?---No I wasn't.
How much money were you paid at the end of that week on that day?---$250
by cheque.
Can you produce that cheque to the court?---No I can't but I can produce - I
can't produce a statement. I don't have anything.
. . .
. . .
. . . Did he give you any other reason why he terminated
you?---No. No. No other reason was - all he said that - that's all he said,
was he couldn't afford to pay me.
Did you ask Mr Kaltoum why he employed you a week
earlier if he could not afford to pay you?---I was shocked with the matter and
I did ask him and he just, he ignored me, he didn't have nothing else, he just
said I couldn't afford to pay and he told me to get out of his office, I'm sorry.
I was very angry, I was very upset. I told him, "Why did you do this to
me?" How could he let me leave another job to come to work for him for a
week and then, you know, terminate me for no reason, there was no reason
given to me whatsoever.”
Did anybody else overhear that conversation to your knowledge, to the best
of your knowledge?---Yes, Leanne - - -
Who was that person?---Leanne Sakis; she was the receptionist there.
Were you given a reference?---No, I was not given a reference.
The applicant had no work between 8 October 1996 and 2 April 1997. The applicant testified:
“It was very difficult for me to find a job due to the fact that I'm taking my ex employer to court and also because I didn't have anything to back me up why I was unemployed for so long.”
The applicant registered with the CES and tried for several positions including medical receptionist. The applicant recalled having interviews during that six month period at the:
“Pharmacy Guild of Australia, Triple 3 Medical Centre in Merrylands, Dr Guirgis in Merrylands, I also had an interview in Raine & Horne in Parramatta.”
Asked to describe the effect of the termination on her, the applicant replied:
“I didn't see any reason why Mr Elie Kaltoum terminated me. I was doing the best I could that week and it really put me down, it's put my self confidence down. Every time I, when I was going for interviews I was just really, I was really insecure, I just wasn't myself, my bubbly self that I used to be.”
In her present employment the applicant was on three months probation so she still had a month to complete.
One of the clients claimed to have been introduced to the business was Mr Michael Elias. An unexecuted Statutory Declaration as to his role in the incident was tendered as Exhibit “C”. There was an allegation made that this document was written by the applicant. A comparison between the writing on Exhibit C and that of the applicant in Exhibit 6 suggests that it is more probable than not that the applicant did not write the statement made by Mr Elias. Mr Elias although subpoenaed by the Respondent was not called to give evidence.
CROSS-EXAMINATION
There was an extensive cross-examination of the applicant. This included issues such as whether she was employed as a property manager or property officer. It was also put to her that Mr Kaltoum had said to her in the Parramatta office:
"I really don't need anyone but I'll put you on and see how things go". This was denied by the applicant Another suggestion was that Mr Kaltoum said: "I'll put you on three months probation as that's what I do with everyone else"? Again this was denied. A probationary period of employment was strongly denied by the applicant.
The applicant agreed that her father delivers bread to a shop next to the real estate premises at Parramatta. It was also conceded that by the applicant that she had ceased her Real Estate Course. The applicant was closely questioned about her prior work history. In my view this was unnecessary and inappropriate given the age of the applicant and the capacity of Mr Kaltoum to make his own prior enquiries about the applicant through his connections in the industry and the community.
The applicant testified that she suffered from asthma. There was considerable cross-examination of her about her absences from her former workplace by Mr Hawach, solicitor for the respondent. His cross-examination of her was justified on the basis the applicant was unlikely to have been a satisfactory employee of the respondent.
The applicant gave her evidence in a forthright way. After some prompting under cross-examination she admitted to using inappropriate language with her employer. She pointed out that this language had been used in anger after she had been told of her termination. Although the language is inappropriate and to be regretted, it is an everyday fact of life in this court that such similar language is heard, indeed far worse than what was said by the applicant. I find that the evidence of Ms Sarkis is the most reliable on this issue.
EVIDENCE OF WITNESS FOR THE APPLICANT
The evidence of a former employee of the respondent, Ms Leanne Sarkis (“Ms Sarkis”), was that she was working at the office whilst on a trial basis as a typist while she was still at school. Ms Sarkis gave evidence that she was present when the applicant came in to be interviewed for a position. Ms Sarkis maintained she heard everything as she was directly opposite the office of Mr Kaltoum.
Ms Sarkis testified Mr Kaltoum said:
"please come into my office…Julie then walked into Eli's office, sat down, and he goes, well Julie, I've heard very good things about you. I want you to come work for
me, long term employment. I want you to leave Richardson and Wrench,
come work for me. and he goes "come work for me, I'll give you 310 a week, longterm employment; you're be property manager".
Ms Sarkis maintained that Gary, who was also employed by Mr Kaltoum, was to be her assistant and further stated:
“Julia goes, yes, "that's fine I'm willing to take the position as it's
more money and a better position for me" and then he goes "well, you be
good to me, I'll be good to you".
Ms Sarkis spent the week working with the applicant. Asked to comment on the applicant’s performance during the period she was there, the following exchange occurred:
“MR WILSON: Do you recall seeing her paint her fingernails?---No.
Do you recall seeing her eating ice cream?---No.
Do you recall her wasting an awful lot of time drawing scribbles on bits of
paper?---Not at all.
Do you recall her ever swearing at her employer?---No not at all.
Do you recall anything that you would have considered unsuitable
behaviour?---Not at all. I only saw Julie be very committed to her job.
To the best of your knowledge did she ever perform any tasks that she was
not qualified to perform?---Could you please expand on that?
Did she for example have people sign contracts when she should not have
done?---I am not aware of that.
Are you aware of any other unprofessional things she did in your
knowledge?---No.
Is there anything you can tell the Judicial Registrar that she did well?---Yes,
most definitely. In the week that Julie was there she leased out seven
properties in a week and she gain two managements for the real estate and I
found her to be very committed and she suggested ideas. She put all her heart
into her work as she wanted to bring more ideas to make thing to make things
more easier, organise the office. As I was doing the reception work she
would still help me out, answer phones and all that. If she did not have
anything to do there was not one time that Julie would sit there or stand there
doing anything.
Do you recall any requirement that she provide a car?---No I couldn't hear
any of that, nothing about a car was said.
During the week would she spend a considerable amount of time travelling
around with her employer?---Yes she was with Elie a bit and she was in the
office as well.”
Ms Sarkis testified that she was present at her desk, (which was directly opposite to the desk used by Mr Kaltoum), when a conversation in relation to the termination of the applicant was taking place. Asked to describe what she heard, she replied:
“I sure can. As Julie was sharing the desk that I was using as well,
Elie came into that office where we were both were… [then Elie came in and he goes, "Julie, can I talk to you?" She replied "Sure". They went into Eli's office, sat down. Then he goes, "I've got some bad news for you". He goes, "I have
spoken to my accountant and he said that I can no longer afford you - to have
you on”Yes?---Julie then stood up with shock and said, "I can't believe you're doing
this to me as I left Richardson & Wrench to come work for you because you
offered me more money and a better position".Julia then was asking Elie questions and he simply replied, "Get out, get out".
And out of anger Julie swore back and said - she swore to him and then left
the office.
Asked to amplify what the applicant had said she reported she had stood up and said:
"Why are you doing this to me after I left Richardson & Wrench". Elie then repeated, "Just get out, leave the office" and Julie then replied - she said, "Fuck off", she swore, like "wanker", "dickhead" and said, "I'll be taking you to court" and walked out.
I am satisfied that Ms Sarkis was a confident and reliable witness whose evidence should be accepted where it conflicts with that given by Mr Kaltoum. Ms Sarkis was able to emerge from her cross examination with not much, if any, doubt being cast on her evidence.
EVIDENCE OF FATHER OF APPLICANT
Mr Khoury, father of the applicant, gave evidence that he knew Mr Kaltoum from previous business dealings and through his work delivering bread to shops near the then office of the respondent. Mr Khoury stated Mr Kaltoum had approached him at a funeral requesting that his daughter work for him in his real estate office. It was put to the applicant, which she denied in cross examination that her father, had approached Mr Kaltoum to assist her to obtain a job. The evidence of Mr Khoury was unclear on this issue. I am able to find that there was an approach by Mr Kaltoum at a funeral requesting Mr & Mrs Khoury to have their daughter contact him with a view to him offering her employment. This contact took place at Our Lady of Lebanon Church at Harris Park, a well-known centre of worship for the Lebanese community in Parramatta and surrounding districts. Also near that centre is a school primarily for children of Lebanese descent, and a very large community hall where many important social and civic functions involving this community take place.
The services of an interpreter were not ordered, even though it would have been an appropriate aid for Mr Khoury. However, as his evidence was of marginal relevance, it seems that the case for the applicant was not adversely affected by him not having the use of an interpreter as is provided for under Section 30 of the Evidence Act 1995 (Cth). Nor was the respondent correspondingly affected, as Mr Khoury was able to give his evidence in English and to be sufficiently cross-examined about his evidence-in-chief. (See discussion of need for interpretation in Paz v Mack Trucks (McIlwaine JR, IRCA 13 September 1996, unreported, decision no.668/96)
EVIDENCE OF MOTHER OF THE APPLICANT
Mrs Khoury (mother of the applicant) gave similar evidence as to an approach by Mr Kaltoum at the funeral. Mrs Khoury told me that she was the mother of eight children, and worked as a cleaner. I was impressed by her evidence and this provides support for the testimony of her husband. Mrs Khoury appeared to give her evidence with a better understanding of the English language than her husband. For these reasons I accept the evidence given by Mr & Mrs Khoury rather than the version put forward on behalf of Mr Kaltoum.
EVIDENCE OF MR KALTOUM
Mr Kaltoum testified that his initial approach to the applicant came after he had placed an advertisement with the Commonwealth Employment Service. He said:
“Ms Khoury answered the phone and I said, “Hi, I’m Elie from Town and Country Real Estate in Parramatta. I have a vacant position for secretarial work in the office.” She said, “Elie, I’m working at Richardson & Wrench. Today is my day off because I work on Saturdays. I’m having today off.”
What day of the week was that? Wednesday, I said, “Great”. She said, “But I will come in to see you. I’ll come and see you tomorrow lunchtime.” Thursday, she came to see me on lunchtime. It was very brief because I had a client waiting and she was eating her lunch. I said, “How’s it going?” She said, “Oh, I have a temporary job at Richardson & Wrench. No room to improve. Like, secretarial work, no room to improve.
Did she say that while she was in your office or was that over the telephone? No, that was in face to face at my office. I mentioned that the position vacant is like secretarial work and because she had some knowledge or experience in property management we will have a probation period of three months. If proven that she’s good in property management, She’ll become a clerk in property management…..”
Subsequently he testified that the applicant had said:
“I’m happy to work for you in terms of gaining experience in the property management and improve in the property management because I’m studying real estate. I would like to improve in property management. I don’t like to stay at Richardson & Wrench because it’s a secretarial job and it’s only temporary.
What did you say then?---I said, “Good, have a three month probation. If proven you’re good, this is what I want. I’m happy with what I saw, with what I heard. Seeing that you’re a good girl for the job, let’s review your position in three months’ time.”
Mr Kaltoum maintained that it was normal practice for employees to be employed on probation. Mr Kaltoum agreed that inside the office at that time was Nicole Paag but sugggested she would not have heard the applicant because she spoke quietly. A Mr Gary Sakalaki was also employed by the respondent and was said to be a qualified person to manage property who had his diploma, as a property officer.
On 1 October 1996 Mr Kaltoum came to the office at around 9.30 am and the applicant was there. He described himself as happy that she was starting. He testified:
“On the second day Gary Sakalaki approached me a little bit worried and he said: “Julie said I am her assistant; she is like the property manager and I am her assistant. She is giving me jobs to do.” And I said, “That’s not right.” Also on that day at around 11.00 o’clock Mr Kaltoum maintained:
“Gary got me on the side, he said, “These two girls, Leanne and Julie, they are very close friends. All they do is talk, talk, talk on the phone, personal calls, they tell each other what happened last night, waste of time”. I said, “Look, don’t worry, it’s a matter of getting along in the business, that’s not a major issue. Let it settle down.”
A further complaint by Mr Kaltoum was that on 3 October 1996:
“Julie was sitting with a client signing an agreement. She was signing a residential tenancy agreement with a tenant.”
It was actually a lodgment form for the Department of Fair Trading for bond money. Subsequently the applicant admitted signing this document although she was apparently not authorised for this purpose. A further complaint was that on Friday 4 October 1996 the applicant came and saw Mr Kaltoum around 11 o’clock, and said: “I’m going for a doctor’s appointment. I’m leaving at 12. I’ll be back at 2 o’clock.” Mr Kaltoum said it was a very important time for him because Nicole Paag was leaving on that day and he wanted to make sure that the applicant knew everything about the operation of the office. Her evidence was that she did not leave until later in the afternoon. Apparently the applicant did not come back to the office after her appointment that day.
Mr Kaltoum testified that around 9.15 am on Tuesday 8 October 1996 after the applicant had finished with some clients, he asked her to come to the office. The applicant was sharing the front desk with Nicole Kazangi who was doing a traineeship with the business. He said that his purpose in having Julie to come to the office was so he could assess her performance. His description of this event follows:
“Mr Hawach: What happened then?--- I said to be seated, said no. Julie I’m not happy with your performance, the way you’re performing seems that like you’re taking it very easy. You’re not like trying to get along with the job and if you are saying you want to improve yourself, you want to go into steps to achieve a property management role you need to perform better.
Did you point out anything specific to Ms Khoury that you were not happy with?---Her attitude towards her other employees. I said, I didn’t employ you like a property manager. You can’t talk to Gary as he’s your assistant.
Okay, on the question of attitude was there anything else that concerned you about Ms Khoury’s attitude?---She didn’t leave room for me to carry on.
Before you called her in was something about her attitude worrying you?---Well, not like very big concern about like time wasting and nothing that she need to talk to me more if she wants to get the experience. I said I’m happy to give you the experience but please talk to me. You know, like, don’t do anything on your own. Talk to me, ask Gary, ask me. Let’s make sure that you know, you know where you stand. If you want to improve yourself you have to perform better.
What were you going to say to Ms Khoury about her performance?---That I’m not happy with her performance.
For what reasons?---For being lack of commitment. Lack of commitment and lack of improvement.
Anything else?---No, that stop right at this – like, I didn’t finish what I was trying to say.
. . . .
Okay, at that time what happened, this is on the last day you brought her into your office on 8 October?---I was trying to – when I was talking to her very slowly and politely she was looking at me very angrily as if it were to say, is like, insulting her. Like, you know. When I say I’m not happy with your performance I’m not happy with your attitude. She pushed the chair back and said: “Fuck you, dickhead. You’re a fucking tight arse.”Right?---I said, don’t raise your voice. People are listening. Gary was on the phone. She didn’t – she didn’t want to stop. She said: “I want my pay now, I don’t want to work for you, you dick head. I want my pay now.”
Okay, and what did you do then?---I grabbed my cheque book, wrote her a cheque for $200 and I gave it to her. She said: “I want it cash. I want you to give me cash now.” I said: “How can I give you cash, look, be reasonable. Don’t scream, you shouldn’t scream.” “Fuck you, you don’t know what’s going to happen to you. I’m going to get you. I’m going to get your business. You don’t know who you’re talking to.”
Right, and then what happened?---She took the cheque, stormed out of the office. I was like surprised, shocked what happened. You know. Why all of this? There is no reason for all this, like, reaction.
After she left the office did anybody else speak to you about Ms Khoury’s employment?---Five minutes later Ms Khoury herself rang the office, spoke to Nicole and said: “Put me through to Elie.” I thought maybe she wants to apologise, come back. I opened the phone and: “Fuck you. You don’t know what’s going to happen to you, you fucking idiot.” I hanged up.
Did anybody else ring you up at this time?---Yes, Ms Khoury who works for Richardson and Wrench contacted me and threatened me as well.
What did she say?---She said: “You’re fucking dead. You’re dead. You don’t know who you’re talking to.”
After that time did anything happened to your business?---I didn’t do anything for five, six calls. I said, look, she is going to calm down. She’s going to go home. They’re going to talk to her. She’s going to calm down. Her mother rang me. Mrs Khoury rang me and I said: “Good, at least now I have some compassion.”…
Other allegations included his car and display window in his office being hit by eggs. As well some of his “To Let” and “For Sale” signs were vandalised and damaged. Mr Kaltoum was advised by the police to take out an apprehended violence order in respect of the alleged conduct of the applicant. He attended upon a Chamber Magistrate who advised him that the matter was best dealt with by effluxion of time, rather than commencing a legal action which would invite a similar legal response to be made by the applicant.
Mr Kaltoum denies that it was his intention to dismiss the applicant as he only wanted an improvement in her performance. Interestingly he gave a non-committal answer to this question by his solicitor:-
“Now, there has been a suggestion made that you told Ms Khoury that you cannot keep her on because your accountant had told you your finances are not up to scratch?---My accountant has got no knowledge of this conversation whatsoever….”
This is a non-responsive answer as he has not denied the words attributed to him by the applicant and Ms Sarkis.
He maintained that between 3 October 1996 and 8 October 1996 no new management agreements were obtained. There was a leasing of three properties in which he was involved in the showing of the clients and the application forms. This statement was inconsistent with his next answer which suggested that these were existing clients who would not require to be shown the properties.
“Those lettings or tenancies were they properties of existing clients of the business?---Existing clients.”
He maintained the employer of Ms Khoury was Elite Real Estate Proprietary Limited. However he often responded to the use of a personal reference to himself as the employer. He finally suggested she was to be paid an award wage with three months probation.
EXCHANGE IN ARABIC LANGUAGE
On the second day of the hearing while being cross examined by the applicant an exchange in the arabic language occurred without an interpreter being present:
THE J.REGISTRAR: Well, you put the exact words or your understanding to this man and he can agree with you.
MS KHOURY: My brother, yesterday at the meeting, said he did not tell you “Oh please don’t?”---He didn’t say “please”, no. He said, in Arabic he said: (Witness speaks in Arabic).
The parties had participated in a family or community gathering on the previous day apparently for the purpose of settling the proceedings. The reference by the applicant was to something her brother had said at the meeting. Mr Kaltoum replied in arabic and the solicitor for the Respondent was requested to assist the court by supplying a translation:
MR HAWACH: No, say it in English.
THE J.REGISTRAR: No, it is better if he does it in Arabic, yes. Yes, go on?---(Witness speaks in Arabic).
MS KHOURY: Okay. He said that, he said. “Don’t---?---Yes.
THE J.REGISTRAR: Now, what is your understanding of what he said in Arabic, please? Do you understand Arabic?
MS KHOURY: Yes, sort of.
THE J.REGISTRAR: Sort of?
MS KHOURY: I understand what he said.
THE J.REGISTRAR: Mr Hawach, do you have a good understanding of it?
MR HAWACH: Well, I have, if the court pleases.THE J.REGISTRAR: If you understand, it would be helpful to me if you tell me your translation of what has been said.
MR HAWACH: My translation is, he says: “For my honour” he says, this is Fred Khoury speaking, “For my honour, do not” – I am sorry, could you say that again?---(Witness speaks in Arabic).
“Don’t take him to court”, referring to Michael Elias.
A further interesting exchange in English then occurred:-
MS KHOURY: Did Michael Elias tell you: “Don’t take him, he can’t go to court?”---Yes.
That is what Michael Elias said?---Yes, yes, yes, and he said to your brother: “Don’t worry, Elie understand, don’t worry. Elie knows, he’s not going to take me to court; not going to waste my time.” And your brother said: “Thank you”, and I said “Fine”.
And my brother said “Thank you”?---Yes, and we were on good terms with your brother, no problem at all.
EVIDENCE OF WITNESS FOR RESPONDENT
There was a conflict between the evidence of Ms Nicole Kazangi and the applicant over the issue of whether the applicant ate an ice cream in the waiting room and whether she painted her nails in the work place. The applicant denies these allegations. Even if the allegations were true they would not be sufficient grounds to justify the termination of employment of the applicant when all the circumstances of the employment relationships were taken into account, (See Gerard Westen v Union des Assurances de Paris Madgwick J, 17 December 1996, unreported decision no. 660/96). What is crucial to the case is that the witness, Nicole Kazangi indicated that she did not tell Mr Kaltoum about these two incidents, until after the applicant had left the business. It is not necessary to make a finding between the two versions in this case. However the denials of the applicant are supported by the evidence of Ms Sarkis. These are issues which may be examined subsequently in these reasons on the question of an assessment of the period in which the applicant was likely to remain in employment.
TERMINATION OF EMPLOYMENT
There are major differences between the parties as to how the termination occurred. The applicant’s version is consistent with the evidence given by Ms Sarkis, whereas Mr Kaltoum says that while he was reprimanding the applicant over her poor performance, she became very angry, swore at him and walked out. Mr Kaltoum was a little vague in his description of events and his reasons for acting as he did. I see little justification for his attitude on that day about the suggested poor performance of the applicant. The applicant says she was dismissed because of financial considerations. I have already set out the substance of the conversation overheard by Ms Sarkis in this judgment and it is not necessary to set out the version given by the applicant as I accept Ms. Sarkis as giving truthful evidence. The respondent was given the opportunity of challenging her credit and no challenge was effectively made. I am satisfied that the applicant was terminated from her employment in this way described by Ms Sarkis in her evidence.
WAS THE APPLICANT ON PROBATION ?
Regulation 30B(1) of the Industrial Relations Regulations states:
“30B(1) [Excluded employees].. 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)
……………………………..”
All the young females who gave evidence appear to be of Lebanese descent. It should be especially noted that two of them were still at school. Therefore the offer of traineeships and some permanency of employment for students in years ten to twelve can be very alluring and unfortunately deceptive. However, that inducement could not be utilised with the applicant who had managed to obtain employment albeit over short periods, over a two year period. There was no attraction to such a person to take a traineeship and reduced wage.
The allegation of a probationary period cannot be supported as the suggestion was only vaguely referred to by Mr Kaltoum in his evidence. There is no support for the claim the applicant was on probation by either of the two witnesses who were to some extent not part of the immediate conflict. It is also unlikely that the applicant would leave her existing employment if she had known it was to accept a position on probation. I find that there was no agreement determined in advance between the applicant and her employer that she was to serve a period of probation.
WAS THERE A VALID REASON FOR TERMINATION ?
Under the provisions of the Act, the respondent carries the burden of showing that at termination it had a valid reason or reasons for bringing the employment to an end summarily. In his decision in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, Northrop J describes the meaning of this phrase in the following way:
“Section 170DE(1) refers to “a valid reason, or valid reasons”, but the Act does not give a meaning to those phrases or the adjective “valid”. A reference to dictionaries shows that the word “valid” has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: “2. Of an argument, assertion, objection, etc.; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.” In the Macquarie Dictionary the relevant meaning is “sound, just, or well founded; a valid reason.”
In its context in s170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s170DC.”
Even if I had been prepared to accept the version given by Mr Kaltoum, the various issues raised were not sufficient to justify anything more than a warning. It should not be forgotten that the evidence of one of the witnesses for the respondent was that she had not told Mr Kaltoum about the ice-cream and finger-painting incidents until after the dismissal. The evidence in this case leads me to the conclusion that there was not well founded or just grounds for the decision to terminate the employment of the applicant. There was not a valid reason to terminate the employment of the applicant.
SECTION 170DC: EMPLOYEE OPPORTUNITY TO RESPOND
Section 170DC is in the following terms:
“An employer must not terminate an employee’s employment for reasons related to the employer’s conduct or performance unless the employee
(a)has been given the opportunity to defend himself or herself against the allegations made or
(b)the employer could not reasonably be expected to give the employee that opportunity.”
In this matter Section 170DC(b) certainly does not need to be considered as there is no evidence that the applicant apart from an understandably, but not justified, vigorous and vivid expression of her anger would act other than responsibly in accepting her dismissal.
The applicant was not given the opportunity to defend herself against the allegations of poor performance. In the matter of Perrin v Des Taylor Pty Limited (1994) 58 IR 254 at 256-7, Moore J said the following about the purpose of section 170DC:
“Its purpose is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee’s capacity. In the present case, the applicant may have been able to show that the complaints about slow delivery parts had no factual foundation or that there was an explanation for their slow delivery that did not relate to any want of effort on his behalf.
A second purpose of s170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. They may be extenuating personal circumstances or they may involve undertakings about future conduct.”
In my view, the respondent breached section 170DC of the Act, in that none of the allegations of poor performance placed before the court were ever properly raised with the Applicant. There was no cogent evidence of any proper attempt to give the applicant an opportunity to defend herself against the allegations of poor performance. The evidence of Mr Kaltoum was vague on these issues.
One issue that arose with some clarity was the error of the applicant in signing a NSW Department of Fair Trading Lodgment Form for Rental Bond money. Mr Kaltoum suggested that he had incurred some difficulty in having the tenant initial the form after the error was found. I am not satisfied that the initials shown on the form were applied to the document by the tenant. To have a proper comparison of signatures and initials the original document would have to be obtained. There is no justification for requiring this course of action. The error was corrected and the form lodged. This mistake still does not justify the respondent in failing to comply with Section 170 DC. In those circumstances I propose to make a finding against the respondent that there was a contravention of section 170DC.
IMPRACTICABLE
I am required by the provisions of the legislation to determine the impracticability of reinstatement. Some early views were expressed on this issue in Liddell v Lembke (1994-95) 1 IRCR 466. Based on the discussion on this issue in that case, I am satisfied that I have only a limited discretion not to reinstate the applicant. Nevertheless I am obliged by Section 170EE(1) to take into account all the circumstances of the case. It should not be overlooked that Section 170EE(1) allows the Court to take into account the legitimate circumstances of the applicant as well as that of the employer.
In view of the finding which I have made on the allegations of swearing, reinstatement is impracticable, as the language wholly offended the respondent. Moreover, I am satisfied that at the date the hearing was concluded, the applicant was in employment which ought not to be disturbed. There appears to be a strong background of family, social and community relationships to the proceedings. The least damage will be done to these relationships by finding that it is impracticable to order reinstatement. In making that assessment I have taken into account the position of all parties within the Lebanese community. I therefore find that it is impracticable to reinstate the applicant.
DISTRESS
I am not satisfied that the applicant suffered distress of the nature outlined in Burazin v The Blacktown City Guardian Pty Ltd (IRCA Full Court, 13 December 1996, unreported, decision no. 606/96). In that case the full court suggested that in making an assessment of damages caused by stress suffered in a termination of employment restraint must be exercised in the level of damages. Accordingly, I make no assessment of damages suffered through distress caused by the method of termination. That assessment is based upon my observations of the applicant in giving her evidence and the effective way in which she continued her case when her legal representation withdrew. In my opinion this young woman has good prospects of a future career and will soon place this unfortunate incident behind her. There is no evidence which would justify an assessment of damages for non-economic loss. I also consider that there is no justification for a finding of non-economic loss.
COMPENSATION
Ordinarily, the calculation of the payment of remuneration lost by the employee commences from the date of termination, which was 8 October 1996. There is considerable variance between the parties as to the wage she was to be paid. In one version the amount was $310 and in another, it was $241. Finally, she was actually paid $200 for working over four days. In the light of this payment $250 per week gross should be used for the purpose of the calculation of compensation. The applicant was unemployed from 8 October 1996 until 3 April 1997 - a period of approximately twenty-five weeks during which she would have earnt $7 750 gross. The applicant applied for a number of jobs but was not successful during that period.
In Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch (“Aitken”) (1995) 63 IR 1 at 9, Lee J said:
“The compensation to be ordered to be paid under s 1700EE(2) is such amount as the Court thinks appropriate subject to the limit set in s 170EE(3). It is a statutory remedy for which no assessment criteria are prescribed, other than a requirement in s 170EE(3) that the Court have regard to the remuneration tha the employee would have received, or would have been likely to have received, if the employer had not terminated the employment.
There is also an alternative method in assessing the compensation that is appropriate the Court will have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened (see Nicolson v Heaven v Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 211; 57 IR at 61-62 per Wilcox CJ). The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.
Divison 3 of the Act provides the context in which s 170EE is to be construed. It includes provisions intended to protect the dignity of an employee, in particular, s 170EA provides the entitlement to receive compensation as the remedy for such a breach, characteristics of a statutory tort. Therefore, in some cases principles relevant to the assessment of damages in tort may provide assistanace in assessing the compensation to be paid under s 170EE(2). That is to say it may be appropriate to include in the measure of compensation to be paid pursuant to s 170EE(2) a sum sufficient to compensate an employee for mental distress or injured feelings caused by a harsh, unjust or unreasonable termination of employment…
It is also appropriate to keep in mind that the purpose of the Act in providing for compensation to be paid…”
In May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112, Wilcox CJ, made an assessment of the future economic losses of the applicant based on the difference in terms of the salary which the applicant was likely to receive and that which she would have received in her previous position in her former employment. The calculation of that amount of damages was in excess of the maximum amount of compensation allowed under the legislation. Accordingly the maximum amount was allowed. There was no evidence tendered which would enable me to make a prediction of the future economic loss so, accordingly, I have not taken that prospect into account.
Despite the allegations of her prior unsatisfactory work performance in her previous jobs; perhaps if a family and community conference had been held shortly after the termination a way may have been found to continue her employment. In the circumstances, the economic loss should be assessed over the period during which she was without work.
I am of the opinion that it is appropriate to assess damages based on the evidence from the applicant of the period she was unemployed. It is therefore appropriate that there be an award of $7,750. It is likely that had some sanity or reasonableness prevailed the applicant would at least have continued her employment until early in 1997.
PERIOD OF NOTICE
It appears that a payment was not made by way of notice to the applicant in this matter. Only $200 was paid for the four days she worked.
Section 170DB(1) states:
“An employer must not terminate an employee’s employment unless:
(a)the employee has been given either the period of notice required by subsection (2)(b) or compensation instead of notice; or
(b)the employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period.”
The applicant worked for the respondent for four days nevertheless her entitlement to a payment in lieu of notice calculated in accordance with the table in s.170DB(2) is one week. It is clear that the applicant used the intemperate language after her termination and before she left the office. The respondent is unable to establish that the conduct of the applicant constituted serious misconduct within the meaning of section 170DB(1)(b). I am not satisfied that it would be unreasonable to require the employer to continue the employment during the notice period. There should be an award of compensation for the failure to give the required period of notice under Section 170DB of the Act.
IDENTIFICATION OF CORRECT EMPLOYER
The evidence of Mr Kaltoum was to the effect that the applicant was employed by Elite Real Estate Pty Ltd trading as Town and Country Real Estate. This issue was not argued conclusively before the court. In support of the suggestion a bank statement Exhibit “H” was submitted about which it was suggested that a cheque for $200 was paid to the applicant by the company. I am satisfied that the correspondence issued by the court included both a reference to the company and “Elie Kaltoum.” In the circumstances I do not propose to agree to Mr Kaltoum being released from his obligation as a party to the proceeding. If this provides a difficulty for Mr Kaltoum then he may apply to the court for a further hearing on this issue involving the company and himself. There will be liberty to Elite Real Estate Pty Ltd trading as Town and Country Real Estate or Mr Elie Kaltoum to apply by Notice of Motion for Mr Elie Kaltoum to be released as a party.
NEED FOR FURTHER ACTION
Whether any issue raised in a hearing should be referred for further investigation has previously been considered by me in detail in such cases as Robson v Webb Bros Pty Ltd (McILwaine JR, 8 April 1998, unreported judgment, decision no. 13/98). In that decision, I directed the District Registrar of the Court to make available to the Attorney-General, or any other officer authorised by the Attorney-General, copies of the reasons for judgment, evidence, transcript and exhibits to enable a further investigation to be undertaken. I have made similar orders in other cases, such as Singh v Vellios (McILwaine JR, 4 June 1998, IRCA decision no. 21/98) and Marlin –v- V Sahade Holdings t/a Crystal Carwash Café (McILwaine JR, 15 January 1998, unreported decision no. 2/98).
My concerns in these proceedings can be summarised:
(a) Evidence which was given of the signing by the applicant, on behalf of the respondent of a lodgment form for the Department of Fair Trading which she was not authorised to complete. There is also evidence of the respondent as to whose initials are now on the form when the error was rectified. Evidence which I do not accept.
(b) The clear impression left upon me that young female labour may have been exploited in a depressed labour market, by the use of “Work Experience” opportunities whilst still at school.
(c) Finally and more importantly the claim by the respondent that should he insist on evidence being given in this court by a number of persons mentioned in the evidence that it may have had the effect of destroying his business. Although subpoenas to give evidence were issued directed to various persons they did not attend court. He was offered the opportunity of the court taking independent action to protect him and the business from such adverse consequences. After consultation with his solicitor he resiled to some extent from his earlier evidence. Mr Kaltoum is a man who is prepared to take advantage of social or family relationships to improve his own position.
There was an earlier instance when he sought to bring into his evidence the text of advice he was alleged to have received from a Deputy Registrar of the court during attempts which were made to settle the proceedings in accordance with the practice of the court. He was of the expectation that this would improve his standing as against the applicant. I totally reject this evidence as the then Deputy Registrar concerned has had considerable experience in these matters and she would not have made the statement he reported.
My reference to the above three matters will be sufficient to ensure that all Directors of the respondent company will take appropriate action to change some of these work practices and to introduce more appropriate methods for assisting young persons in their careers. I have concluded that no good purpose would be served by any further resources being utilised to investigate the non-attendance of witnesses to support the case for the respondent apart from the declarations and awards which should be made in this case.
There will be judgment and orders accordingly.
I certify that this and the preceding 21 pages
is a true copy of the reasons for the decision ofJudicial Registrar McIlwaine
delivered on 30 June 1998.
Associate:
Dated: 27 July 1998
APPEARANCES
Counsel appearing on 20 May 1997 Mr Wilson
Solicitor for the Applicant: Legal Aid, Parramatta
Applicant appeared on her own behalf on 3 July 1997
Solicitor appearing for the Respondent: Mr Hawach
Dates of hearing: 20.05.97, 3.07.97
0
11
0