Leguier v Best Directions Pty Ltd
[1996] IRCA 466
•27 September 1996
DECISION NO: 466/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1384 of 1996
B E T W E E N:
Stacey Michelle LEGUIER
Applicant
A N D
BEST DIRECTIONS PTY LTD
Respondent
REASONS FOR DECISION
27 September 1996 PARKINSON JR
This is my decision in relation to an application made pursuant to Section 170EA of the Industrial Relations Act 1988 (“the Act”) On 7 May, 1996 Orders were made by Judicial Registrar Millane as to discovery and the provision of contentions of fact within 28 days of that date. These Orders are noted as being made by consent, the applicant being represented by counsel and the respondent having entered an appearance by its authorised representative, the Retail Traders Association of Victoria. There was compliance by the applicant. On 1 August, 1996 the Retail Traders Association of Victoria withdrew its appearance on behalf of the respondent advising the Court that it no longer acted for the respondent. The respondent did not comply with the Order and had not complied with the Order despite requests by the solicitors for the applicant as at 30 August, 1996. By notice of motion dated 30 August, 1996, the applicant sought that the matter proceed as an undefended application. Judicial Registrar Murphy made the Order sought. An Order for costs on the notice of motion was made against the respondent. On 9 September, 1996 the application came on for hearing before me. On that date the applicant appeared by counsel. The respondent was represented by its managing director, Mr Nicholas McLellan. Mr McLellan filed in Court the respondent’s contentions of fact. The applicant’s counsel sought that the matter proceed as an undefended matter. In view of the respondent appearing by way of an officer, I ruled that the matter would not proceed as undefended and that the respondent have leave to defend the action.
The applicant was employed as a sales assistant at the respondent’s clothing store at Lalor. This store is one of nine stores operated by the respondent. She commenced employment on 16 January, 1995. The applicant alleges that her employment was terminated on 26 February, 1996 as a consequence of her pregnancy.
In this proceeding the respondent bears the onus pursuant to s170EHA of the Act of establishing on balance of probability that it had valid reason for the termination of the applicant’s employment. For the reason to be valid it is necessary that it be as a consequence of the operational requirements of the business or the applicant’s work performance or conduct. The respondent is required to also establish that the reason for the termination of the employment did not include the reason that the applicant was pregnant. Such a reason being prohibited by operation of s170DF(1)(f) of the Act.
The respondent contends that the applicant’s employment terminated as a consequence of her leaving the employment after a dispute with the store manager, Ms Franka (surname unknown to the Court). It principally contends that the employment was not terminated but that the applicant left the employment as a result of a physical altercation with the store manager wherein it alleges that the applicant assaulted the store manager. I take this to be a submission that the employment was not terminated at the initiative of the employer and therefore not a termination of the type contemplated by s170EA of the Act and alternatively a submission by the respondent that if there was a termination of the employment that it was for valid reason based upon the conduct of the applicant in assaulting another employee and refusing to perform the cleaning duties required of her.
The circumstances of the termination of the employment were that on the morning of 26 February, 1996 the applicant attended for work at the Lalor shop. Upon attending work she commenced tasks set out in a list of instructions left by a person known as Vince, the Area Co-ordinator. She was shortly thereafter instructed by the senior store employee, Ms Franka, to clean the overhead ceiling fans. At this point of time the applicant was 6 months pregnant and her evidence is that as a consequence of this state and concerns for her safety in climbing a ladder to the required height, she refused to perform the duty. Ms Franka then contacted a person more senior in management who instructed that the applicant was required to work as directed. Mr Daniel Carabot says that it was he who was contacted by the store manager. The applicant’s evidence is that she was informed that it was Mr Nick McLellan who was telephoned. The applicant again refused to climb the ladder and shortly thereafter the evidence of Mr Carabot is that Ms Franka complained of an assault.
The evidence of the applicant is that she did not at any time hit, strike, or in any other way make physical contact with Ms Franka. Her evidence is that at all times relevant to the alleged assault she had been at the other end of the store. After the allegation being made the applicant’s evidence is that she was told by Ms Franka that she was no longer needed at work.
Ms Franka was not called to give evidence in these proceedings, despite she being the only employee of the respondent present at the store and the person who allegedly made the complaint as to the applicant striking her. Ms Franka is still in the employ of the respondent. The respondent explained her absence in that she was attending a training course and it was inconvenient for her to attend. Mr McLellan of the respondent also gave evidence in the proceedings that another person had witnessed the alleged assault upon Ms Franka. That person was not identified by the respondent and was not called to give evidence in these proceedings.
The only evidence called by the respondent as to the alleged incident between the applicant and Ms Franka was that of Mr Daniel Carabot who gave evidence that he was involved in a telephone conversation with the store at the time of the alleged incident and that he heard sounds consistent with an assault occurring and that immediately after hearing those sounds, Ms Franka came to the telephone and complained of being assaulted. His evidence was that the applicant was the person to whom he was talking at the time of hearing the incident.
The applicant denies that she had any conversation with Mr Daniel Carabot and says that she had no telephone discussions with any management person at the store prior to her employment being terminated. The only telephone conversation she had was with her mother, whom she called in distress and this call was interrupted by the store manager, Ms Franka, disconnecting the line. The applicant’s evidence is that the fact that she had no such discussions was in part the reason for her calling the respondent’s managing director, Mr McLellan on the afternoon of 26 February, 1996.
The applicant’s evidence was that since she had informed the respondent of her pregnancy the attitude of the respondent’s managers towards her had changed. She evidenced this by reference to the alteration made to arrangements for her to work at the new store to be opened by the respondent in Epping. The applicant’s evidence was that she was approached shortly before commencing two weeks annual leave in October, 1995 and advised that she was to be transferred to the new store. Her evidence was that she understood this transfer was to involve increased hours of work and higher wages. Her evidence was that she advised the respondent of her pregnancy one day before she was due to return to work after annual leave. On that same day, approximately an hour later she was contacted by Ms Franka and informed that she would not be being transferred to the new Epping Store and that another employee, known as Leanne would be going in her stead. The applicant’s evidence is also that she was also required to carry boxes of clothing and to perform tasks in a manner which she had not been previously required prior to notification of her pregnancy. In particular in relation to these tasks she refers to a direction from the store manager and the region manager that she climb a ladder and clean the ceiling fans in the store. During the course of the pregnancy the applicant had some absences to attend for medical appointments and an absence as a consequence of pregnancy related nausea, these absences were in accordance with her entitlements and otherwise she attended work as normal.
I accept the evidence of the applicant that the respondent’s conduct towards her altered after she advised of her pregnancy. It is apparent from the evidence that there was no real operational explanation for the alteration to the arrangements that the applicant transfer to the new larger store at Epping. The evidence of the respondent was that the employee Ms Leanne (surname also unknown to the Court) identified as the person who would be going to Epping, was also the person who was immediately used to replace the applicant in her employment at the store after her employment ceased. The evidence is that Ms Leanne had formerly been a casual employee utilised irregularly by the respondent. As to the work directions given her, the respondent’s witnesses at first denied that such a direction was given the applicant, although they did not produce the list left in the store of duties to be performed, which the applicant says included this duty. They also did not produce the person who allegedly gave the direction. Ultimately the respondent’s witnesses conceded that it was possible such a direction was given, although Mr Daniel Carabot in his evidence did not accept that the requirement that the applicant climb a ladder, balance and using a cloth, clean a ceiling fan could be dangerous to a woman who was six months pregnant. I found Mr Carabot to be an unsatisfactory witness. In my opinion he was evasive in giving his evidence. In cross-examination Mr Carabot was unable to explain omissions in his evidence in this Court and the statement he made to police in June, 1996 as to the allegations as to the applicant’s conduct on 26 February, 1996. In particular the witness gave evidence that Ms Franka told him on the telephone that the applicant had pushed her and sought his permission to ring the police. It was put to him in cross-examination that he had not told the police that Ms Franka had told him of being pushed. He conceded that he did not.
Mr McLellan was unable to explain to the Court why the statement to the police did not occur until after the initiation by the applicant of these proceedings. In this respect his evidence was that he was unable to comment on Ms Franka state of mind. He did not call evidence from that person. Nor did he call evidence from the alleged independent witness to the events. I have made allowances in this consideration of the evidence of Mr McLellan and Mr Carabot for the difficulties that each faced as a consequence of being intimately involved in the issues in the proceedings and having a dual role of conducting the proceedings. However I found both witnesses to be unsatisfactory and in all material respects prefer the evidence of the applicant.
No evidence was called in these proceedings as to the precise allegations made against the applicant as to any alleged assault. The applicant denied the allegation. She had no opportunity to cross-examine any person who made allegations against her. No evidence was provided to the Court as to the location of the person alleging the assault and the applicant when any alleged assault occurred, save for the applicant’s evidence. Mr Carabot’s evidence was that the applicant was on the telephone talking to him at the immediate instance he heard the noises which he associated with an assault. However his evidence was that he did not hear any person complaining, or using words to the effect of; ‘don’t push me’. He gave evidence however that he was able to accurately recall the applicant in the background swearing at Ms Franka. As discussed earlier, there are inconsistencies between his evidence in these proceedings as to what he heard and was told and what he informed police.
There is no direct evidence in these proceedings of the events leading to the termination of the employment which are relied upon by the respondent. It was within the respondent’s power to call such evidence and it chose not to do so. In the absence of a satisfactory explanation the Court is entitled to draw an unfavourable inference as to the reasons for this failure to call material evidence and I do so.
I find on balance that the respondent has not satisfied the onus it bears to establish the termination of the applicant’s employment was for valid reason. I am not satisfied that there was any aspect of the applicants conduct or work performance generally or in particular on 26 February, 1996 which would found a valid reason for the termination of the employment. I am not satisfied that the applicant pushed, struck, hit or in any way interfered with Ms Franka at the respondent’s Lalor store on 26 February, 1996. I am satisfied on the evidence that there was a marked change in attitude to the applicant after the announcement of her pregnancy, and I am satisfied that this change had no explanation. This fact together with my earlier observations as to the unsatisfactory nature of Mr McLellan’s evidence satisfies me that I ought have little regard for Mr McLellan’s evidence that the applicant’s pregnancy was not a part of the reason for termination of the employment. The respondent has not satisfied its onus to establish that the reason for the termination of the employment did not include the applicant’s pregnancy.
I find that the respondent had contravened s170DE(1) of the Act in that it terminated the applicant’s employment without valid reason. I further find that the respondent has contravened s170DF(1)(f) of the Act in that the reason or part of the reason for the termination of the applicant’s employment was the applicant’s pregnancy.
Section 170DC
In addition to the matters raised by operation of s17ODE(1) and s170DF(1)(f), the respondent failed to meet its obligations pursuant to s170DC of the Act. The respondent failed to give the applicant any opportunity to be heard or to respond to the allegations made by Ms Franka . I am satisfied that Ms Franka terminated the applicant’s employment with the authority of the respondent on instruction of Mr McLellan and without the applicant having had an opportunity to provide her version of the events. The person who the respondent alleges was the subject of the conduct complained of resulting in the termination of the employment, Ms Franka, a relatively junior employee, was also the person who advised of the termination of employment. Despite there being conversations with Ms Franka and management, there was no discussion with the applicant as to any allegations prior to or immediately upon the termination of employment. Further I do not accept that the conversations between the applicant and Mr McLellan, the first of which being initiated by the applicant after she had returned home, involved any consideration of those matters. I prefer the applicant’s evidence as to the content of that telephone conversations and Mrs Terri Anne LeGuier’s evidence as to their length and her account of her daughters part of the telephone conversations. I am satisfied that the respondent failed to accord the applicant an opportunity to be heard in relation to any allegation as to her conduct and that her employment was terminated in circumstances which contravened s170DC of the Act. I turn now to consider the question of remedy.
Section 170EE - Remedy
The applicant is entitled to a remedy. In this proceeding the applicant does not seek an Order for reinstatement. It is necessary to consider the question of whether an Order for reinstatement would be practicable before considering any Order which might be made for compensation. I am satisfied having regard to the conduct of the respondent towards the applicant and the matters which have occurred between the parties and the fact that there are continuing issues between the applicant and the respondent or its employees that an Order for reinstatement would be impracticable. I am satisfied that in all the circumstances an Order for compensation is appropriate.
The applicant’s employment terminated on 26 February, 1996. She has been without employment since that time, which is not surprising given the advanced state of her pregnancy at the time the employment terminated. The applicant had her baby in May 1996 and has remained at home since that time, however her evidence was that she was able and willing to return to employment. Although it may be assumed that the applicant would have taken maternity leave for at least a short period there is no evidence as to its likely length. The applicant continues to be unemployed and seeks work. Her evidence was that for a short period after the termination of her employment she was incapacitated for work because of surgery. I am satisfied that the applicant would have remained in the employ of the respondent until some weeks prior to the delivery of her child. I am also satisfied that the applicant, had an entitlement to return to work no earlier than 6 weeks after the delivery of her child pursuant to the Industrial Legislation of the State of Victoria. The period of leave was unpaid. I have taken into account this period in assessing compensation to be ordered. There is no evidence to suggest that the applicant would not have returned to work with the respondent after her confinement and the initial six week period. The period of time between the date of the termination of employment and the date of Judgment is a period of 31 weeks.
I am required in assessing compensation to have regard to the amount of remuneration the applicant would have received if the employer had not terminated the employment. In this regard I am satisfied that the applicant would not have received remuneration in respect of the maternity leave periods discussed above. I am satisfied that the employment would have continued but for the termination of the employment by the respondent. I am constrained by the operation of s170EE(3) in the amount of compensation which may be ordered. I have however decided that the applicant’s losses in remuneration, taking into account the period of maternity leave, exceed 26 weeks, being the amount provided for by s170EE(3) and those losses are continuing. The Order for compensation will be in the amount of $7,254.00 being a sum representing 26 weeks pay at $279.00 per week. This Order for compensation also includes a component for loss of the value to the applicant of existing employment in circumstances of pregnancy. The applicant has suffered additional loss by reason of being prevented from utilising the benefits of the maternity leave provisions and in particular the job protection aspects of those provisions. The applicant is entitled to the maximum amount of compensation available to be ordered and that will be the Order of the Court.
I certify that this and the preceding nine (9) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate : Paul Ferguson
Dated : 27 September 1996
APPEARANCES
Counsel appearing for the applicant : Mr. D.J. Burnett
Solicitors for the applicant : Opat, Goldsmith & Goldsmith
Company director of the respondent : Mr. McLellan
Date of hearing : 9 September 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1384 of 1996
B E T W E E N:
Stacey Michelle LEGUIER
Applicant
A N D
BEST DIRECTIONS PTY LTD
Respondent
MINUTES OF ORDERS
27 September 1996 PARKINSON JR
THE COURT ORDERS THAT:
That the respondent pay to the applicant compensation in the sum of $7,254.00 pursuant to Section 170EE(3) of the Industrial Relations Act, 1988.
That time for payment be 21 days from the date of this Order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether RESIGNATION of employee - whether employer had VALID REASON for termination - whether employee given OPPORTUNITY TO RESPOND to allegations of SERIOUS MISCONDUCT -
Industrial Relations Act 1988, ss 170DC, 170DE(1), 170DF(1)(f), 170EA, 170EHA
LEGUIER v BEST DIRECTIONS PTY LTD
VI 1384 of 1996
Before: PARKINSON JR
Place: MELBOURNE
Date: 27 September 1996
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