Leigh-Anne Gibbons v WA Travel Pty Ltd trading as Jetset Kardinya
[1995] IRCA 607
•06 November 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether TEMPORARY ABSENCE due to illness reason for termination - prohibited reason under S170DF(1)(a) - whether PROCEDURAL FAIRNESS - nature of an opportunity - COMPENSATION
INDUSTRIAL RELATIONS ACT 1988 Ss 170DC, 170DE, 170DF, 170EA, 170EE
Aitken v CMETSWUA - WA Branch (IRCA No. 352 of 1995, Lee J, unreported)
LEIGH-ANNE GIBBONS -v- WA TRAVEL PTY LTD TRADING AS JETSET KARDINYA - WI95/1832
BEFORE: FARRELL JR
PLACE: PERTH
DATE: 6 NOVEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1832
BETWEEN: LEIGH-ANNE GIBBONS
- Applicant
AND: WA TRAVEL PTY LTD TRADING
AS JETSET KARDINYA
MINUTE OF ORDERS
BEFORE: R D FARRELL JR
PLACE: PERTH
DATE: 6 NOVEMBER 1995
THE COURT DECLARES THAT:
The termination of the employment of the applicant contravened Sections 170DE, 170DF and 170DC of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT:
The respondent shall pay compensation to the applicant in the sum of $5,315 within 14 days of the date of this order.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1832
BETWEEN: LEIGH-ANNE GIBBONS
- Applicant
AND: WA TRAVEL PTY LTD TRADING
AS JETSET KARDINYA
- Respondent
BEFORE: R D FARRELL JR
PLACE: PERTH
DATE: 6 NOVEMBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, Leigh-Anne Gibbons (“Ms Gibbons”), by the respondent, WA Travel Pty Ltd, which trades as Jetset Kardinya (“the Company”). Reinstatement is not sought.
Mr Kawalsky, who appeared for Ms Gibbons, alleges that the Company breached the provisions of Section 170DE(1) of the Act and contends that the termination of her employment did not occur for a valid reason. In particular, he contends that the Company terminated Ms Gibbon’s employment for reasons including her temporary absence from work because of illness, contrary to Section 170DF. He also contends that the termination of her employment was in any event harsh, unjust or unreasonable within the meaning of Section 170DE(2) of the Act, and that - to the extent that the termination was for reasons related to Ms Gibbon’s conduct or performance, she was not given the opportunity to defend herself against the allegations made.
Mr Peter Yim (“Mr Yim”), who appeared as an officer of WA Travel Pty Ltd, and who also gave evidence on the company’s behalf, contends there was a valid reason for the termination, based on Ms Gibbon’s conduct and capacity, and that the termination of Ms Gibbon’s employment was not harsh, unjust or unreasonable within the meaning of Section 170DE(2) of the Act. He denies that Ms Gibbon’s temporary absence from work because of illness formed any part of the reasons for terminating her employment. Nor does he accept the contention that she was not given the opportunity to defend herself against the allegations made against her.
The Factual Background
Ms Gibbons, who was 23 years of age at the date of hearing, was unemployed for three years before she formally commenced employment with the Company as a travel consultant on 3 March, 1995 through a Commonwealth Employment Service (“CES”) Jobstart program. While unemployed, she had recently completed a travel and tourism course but did not have any experience in the travel industry. She helped out at the Company’s Thornlie office from 9am to 3pm in the fortnight before she was formally employed. It was understood by both parties that this arrangement was on a trial basis and was agreed that it was voluntary. There was no contention by Ms Gibbons at the hearing that she should be paid for this work.
Jetset Kardinya was a new office for the Company, and Ms Gibbons was employed at the same time as Ms Melissa Barker (“Ms Barker”) to run that office. Ms Barker’s job description was Senior Travel Consultant, and Ms Gibbons answered to her.
Ms Gibbon’s job was paid at the relevant award rate, which was $366.80 gross.
Mr Yim maintained a separate office, and also dropped in on his Travel Agencies in Thornlie and Kardinya from time to time. If Ms Barker or Ms Gibbons wished to contact him, they could ring him at home.
I accept that at some stage in the course of their employment, both Ms Gibbons and Ms Barker were instructed by Mr Yim that he needed to be informed personally of any absence due to illness, as neither had authority to make arrangements to cover for the absence of the other.
Ms Gibbons was absent on the second Saturday of her employment. The reason for her absence was that she overslept. I accept that Mr Yim told her this was unacceptable.
About two weeks later, Ms Gibbons missed two days work. She says she had influenza and that she obtained a medical certificate to that effect, which she gave to Ms Barker on her return. Ms Gibbons did not notify Mr Yim of her absence. Ms Barker confirmed in her evidence that Ms Gibbons had told her that she had influenza and had told her that she had a medical certificate but Ms Barker denies that Ms Gibbons gave her the certificate. If it be necessary to resolve this difference in the witnesses’ recollections, I am inclined to prefer Ms Barkers’ evidence. It would not be surprising if Ms Gibbons, while intending to tender the medical certificate, did not in the end do so if she were not asked for it.
Ms Gibbons was meant to start work at 9am in the morning. She was sometimes late. Mr Gibbons says this was rare, and she was never very late. On most occasions, she could ring Ms Barker and advise her that she wished to do something - for example, make a loan payment on the way to work - which would make her late, and Ms Barker would have no objection. It does not appear that she was ever specifically warned about being late, and I have not placed much weight on this issue, as I do not believe it significantly contributed to her dismissal.
It was generally accepted by all witnesses that Ms Gibbons and Ms Barker had “a communication problem”. Ms Gibbons characterised the problem as Ms Barker withholding information from her. She said that she felt she was sometimes "kept in the dark", and that it made her look incompetent. Ms Barker characterised it as a failure on Ms Gibbon’s part to ask for guidance when she wasn’t sure what to do. More generally, it appears the two employees did not get along together very well. They both impressed me as confident and capable young people and it may have been that there was a level of competitiveness between them which underlay and adversely affected their working relationship.
An illustration of the consequences of the lack of communication was a loss suffered by the Company in the early part of Ms Gibbons’ employment, when there was a rise in the price of an airline ticket which could have been avoided had Ms Gibbons advised the airline earlier of a ticket sale. Ms Barker used this as an example of Ms Gibbons’ failure to ask for help. Ms Gibbons’ position was that she didn’t know that she was required to do anything about the ticket, so it would never occur to her to ask. In this case, I have some sympathy for Ms Gibbon’s argument.
In any event, this incident was early in Ms Gibbons’ employment, and Mr Yim, in evidence, described it as “part of the learning process”. I do not believe it contributed significantly to her dismissal.
Another example was the failure by Ms Gibbons to attend two training sessions organised by the Company, which she ascribed in her evidence to a communication breakdown between her and Ms Barker - she says she was not told where they were. Ms Barker gave more detailed evidence, but in the absence of more complete evidence from Ms Gibbons, who was not cross-examined on this issue, I am not prepared to find that the failure to attend was the fault of Ms Gibbons.
Generally, however, it is clear that Mr Yim was aware that his two employees did not get along, and that from time to time he emphasised to them the importance of teamwork and exhorted them to work together better for the sake of the business. He acknowledged in evidence that the communications problem was “a two way street”. I am satisfied that, when the time came for him to contemplate ending Ms Gibbon’s employment, this was a significant factor tending to favour her dismissal.
Mr Yim also gave evidence more generally about a lack of initiative on the part of Ms Gibbons. That may have been his genuine perception, but “initiative” is a relatively subjective attribute, and apart from the matters set out above, this perception was not supported by any further objective evidence.
On Thursday 15 June 1995, Ms Gibbons was again absent from work. She called Ms Barker on Thursday morning to tell her she had a sore throat. Ms Barker reminded her that she should inform Mr Yim personally of her absence.
Ms Gibbons gave evidence that following this conversation with Ms Barker, she called Mr Yim’s home and left a message for him with a woman who answered the telephone, whom Ms Gibbons assumed to be Mr Yim’s wife or daughter. In the absence of evidence to the contrary, I accept that this was the case, and I understand that the Respondent was not contesting that this may have been the case. I accept that Mr Yim was at all relevant times unaware that Ms Gibbons had attempted to contact him personally.
Ms Gibbons saw her doctor, who certified that she was not fit for work for two days.
By Friday 16 June 1995, it became evident to Ms Gibbons that she had contracted chicken pox from her house mates, who were also suffering from that ailment. She did not see a doctor about it because she readily identified the symptoms and had concluded from her friends’ experience that there was no effective treatment. It is not contested by the Company that Ms Gibbons was genuinely ill.
Upon becoming aware that she had chicken pox, Ms Gibbons contacted Ms Barker on the Friday afternoon and advised her of her condition. Given the contagious nature of the disease, it was agreed between them that Ms Gibbons should not return to work until the condition had cleared up. There is no evidence of any further attempt by Ms Gibbons to contact Mr Yim.
On the morning of Wednesday 22 June 1995, Mr Yim telephoned Ms Gibbons.
Ms Gibbons says Mr Yim asked her how she was, to which she replied that she was still “spotty” but was "otherwise OK". She says Mr Yim then told her he was going to have to “let her go”, not because she was ill but because the business was bleeding and he could not justify having two consultants. She says Mr Yim said he would see how it went with Ms Barker only, she being the more experienced consultant. She says he told her that she had a lot of potential, that she was doing well, and made other favourable comments about the Applicant.
Ms Gibbons says that she was shocked and upset by the phone call and believed that she had been dismissed because she was ill.
Mr Yim denies telling Ms Gibbons that he said he would see how it went with Ms Barker only. He says it was always clear to him that he would need to replace Ms Gibbons if he dismissed her, and that he hoped to replace her with someone more experienced. Indeed, he says the fact that Ms Barker was having to cope alone was a factor in prompting him to act. I accept Mr Yim’s evidence on that matter, as it is consistent with his later actions and, given that Ms Gibbons was upset, it would have been understandable that she would have misinterpreted his comments.
In his evidence, Mr Yim said that the decision to dismiss Ms Gibbons was the result of a number of factors.
A major factor was his indignation that she had not contacted him directly to tell him she was ill and when she might return to work, notwithstanding his previous clear instructions that she must do so. His explanation for his reaction to this perceived failure on her part was that it suggested to him that she did not care about the job. Where staff comply with this sort of direction and contact him personally, he said, it gave him a sense that the staff cared.
I have found that she did in fact ring and leave a message for him, and so to some extent his indignation was ill-founded. I also note that Ms Gibbons was in fact conveying the relevant information to Mr Yim through Ms Barker, so her failure to comply with his direction had little if any practical effect on the business. It is also clear that, if Mr Yim had needed to know anything, all he had to do was pick up the phone and ring Ms Gibbons, as he eventually did on the Wednesday to dismiss her. While it may have irked Mr Yim that he was left in the position of having to ring the applicant, I would find that it would certainly be harsh, unjust and unreasonable to base a decision to dismiss an employee on such a consideration.
The other factors Mr Yim says he took into account were:
the fact that Ms Gibbons did not get on with Ms Barker;
Ms Gibbons’ failure to attend the training sessions;
A perceived lack of confidence and lack of commitment on the part of Ms Gibbons in the performance of her duties, and more generally, a lack of experience; and
Ms Gibbons' long absence from the business.
Mr Yim denied that the fact that Ms Gibbons was ill affected his decision, but acknowledged that the fact that she was absent was a factor that he took into account. He explained the operational pressures on the shop where it was staffed by only one person, and emphasised the importance of it never being shut up during business hours, for reasons of customer confidence. It was never satisfactorily explained to me, however, why temporary staffing arrangements could not have been put in place, as would have been necessary, for example, where one of the regular staff went on annual leave.
Having considered all the evidence, I am satisfied that Ms Gibbons’ temporary absence from work was one of the reasons for her dismissal, even if it was, as Mr Yim suggested, the last straw. It is accepted that that absence was because of illness.
Under Section 170DF(1)(a) temporary absence from work because of illness need not be the sole reason or even the chief reason for dismissal - it is enough that it be one of the reasons for Section 170DF to have been contravened. I am not satisfied that the inherent requirements of the particular position justified reliance on the absence as a reason for dismissal.
I am also satisfied that, to the extent that Ms Gibbon’s dismissal was related to her conduct and capacity, she was not given an opportunity to defend herself.
It was apparent from the evidence, and even from the manner in which he conducted himself throughout the hearing that Mr Yim is a person who would prefer to avoid confrontation.
In their final conversation, Mr Yim was intent on leaving Ms Gibbons with a positive attitude to her work performance. In earlier discussions, while Mr Yim would stress the importance of various factors in Ms Gibbon’s work performance, it is clear that he never made it clear to her that her performance was falling so far short of the required standards that her job was in jeopardy. As Mr Yim put it, he never told her “If you don’t do it, you’ll be sacked”. Mr Yim made it clear that this was not part of his management style. He said he believed in giving encouragement and motivation, and it was not in his nature to run staff down. He believed it would be bad for employees’ morale if he were constantly threatening to sack them.
So it would, if an employer did so continually and without justification. Also, it would obviously be preferable to use less confronting, though clear, language in any such discussion. However, where an employer is seriously contemplating terminating an employee’s performance, the legislation provides that they be made aware of this, and given a chance to defend themselves and - practically - an opportunity to save their job by improving their performance. Ms Gibbons says - and I accept - that she was shocked by her dismissal. She was not given that opportunity.
Ms Gibbons received no written notice of termination. Her Group Certificate (Exhibit A) indicates that she was paid to the end of 23 June, 1995.
Soon after Ms Gibbons’ dismissal, a new employee had been engaged to replace her.
There was evidence that Mr Yim received a government subsidy of $200 a week for the first 13 weeks of Ms Gibbon’s employment, which then fell to $50. I am satisfied that this was not a causal factor in Mr Yim’s decision to terminate Ms Gibbon’s employment. My finding is supported by the fact that Mr Yim receives no subsidy whatsoever for the employee hired to replace Ms Gibbons.
I was very favourably impressed by Mr Yim’s evidence and by the manner in which he conducted himself throughout the hearing. He gave me the impression that he was a man of integrity and he readily made several admissions and concessions where to do so did not further his case. I accept his evidence without any reservation as to his honesty, and subject only to the usual differences between witnesses in emphasis and recollection, and some honest errors in calculation.
Similarly, the evidence of both Ms Gibbons and Ms Barker was given in a very confident and open manner, and where I had to prefer the evidence of one over the other, I did so on the basis of my impression of who had the better recollection of events.
Mr Yim told the Court that he sought the advice of the Commonwealth Employment Service before dismissing Ms Gibbons. He says that he may have got the sequence wrong, but that it was a soul searching process for him and that he tried to do it correctly.
It is obviously highly regrettable if Mr Yim was wrongly advised. The provisions of this Act which have been contravened in this matter - certainly Sections 170DC and 170DF - are not difficult to apply or to understand, if employers are made aware of them. That employers are still often not aware of them is clearly a problem which this Court has limited capacity to remedy. The fact that an employer is unaware of a provision does not, however, remove their employee from the protection of that provision. It is a concept well understood in the community that “ignorance of the law is no excuse”.
Remedy
The primary remedy available under Section 170EE of the Act is reinstatement and under Section 170EE(2), it is only appropriate to award compensation where the Court thinks that reinstatement is impracticable. In this case, Ms Gibbons is not seeking reinstatement.
It was common cause between the parties that reinstatement was impracticable, and in the circumstances I am satisfied that that is the case.
Ms Gibbons seeks an order requiring the Company to pay to her compensation.
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.
In this case, while I accept that Ms Gibbon’s work performance was not flawless, I am of the view that unless there was some incident which impelled Mr Yim to act, he would have been most likely to have kept her in employment. I am of the view that it was the practical difficulties arising from her absence which was the catalyst which led Mr Yim to review Ms Gibbons' overall performance and decide to terminate the employment. Had she not been absent due to illness, and in the absence of some other occasion for reviewing her performance, I find that Ms Gibbons would most likely have continued in her employment without interruption.
The Court will, in assessing compensation, also 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.
As a result of her unlawful termination, Ms Gibbons was unemployed until 3 October 1995. Fortunately, she has since found employment at another travel agency at a higher rate of pay.
While Ms Gibbons was paid up to 23 June 1995, and was not paid in lieu of notice on termination, she was also paid sick pay for at least a week in excess of any award entitlement. I assess that she therefore lost 14 weeks income, at a gross weekly wage of $366.80.
Ms Gibbons also claims what she characterises as “exemplary damages”, on the basis that she suffered embarrassment as a result of her dismissal and that “her confidence was shattered”. She told in evidence how the loss of income had the effect of depriving her of her independence, because she was forced to move to live with her parents, and how this directly resulted in the breaking down of her defacto relationship.
It is established that it is sometimes appropriate for applicants to be compensated for mental distress or injured feelings suffered as a result of their unlawful dismissal (See for example Aitken v CMETSWUA - WA Branch IRCA No. 352 of 1995, Lee J, unreported)
However, having considered all the circumstances, I will not award the additional compensation sought in this case. In particular, some of the matters complained of are, in my view, too “remote” (in the common law sense) from the unlawful termination, and any mental distress will - thankfully - have been alleviated by the applicant’s success in finding other employment. I also take into account the fact that, even on the Applicant’s account, Mr Yim told her at the time she was dismissed that she had a lot of potential, that she was doing well, and he made other favourable comments about her. I find that Mr Yim, having decided to terminate her employment, genuinely tried during the conversation in which he dismissed the Applicant to preserve her sense of dignity and to minimise the mental distress arising from the termination.
In recognition of my finding that the termination was nevertheless unlawful, however, and to compensate the Applicant for her resulting loss of income, I assess compensation at $5135.00.
I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment of Judicial Registrar Farrell.
Associate
Date:
Counsel for the applicant: Mr S Kawalsky
Solicitors for the applicant: Dwyer Thomas
Representative for the respondent: Mr P Yim
Hearing date: 23 October 1995
Judgment date: 6 November 1995
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