Limmer v Bronston Pty Ltd
[1996] IRCA 156
•30 April 1996
DECISION NO: 156/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - casual employee engaged for a short period - no objective evidence of change of status to permanent employee
Industrial Relations Act 1988 ss. 170CC, 170DB, 170DC, 170DE(1) &
170DE(2)
Industrial Relations Regulations Reg. 30B(1)(d), 30B(3)
ELAINE MICHELLE LIMMER - v - BRONSTON PTY LTD
No. VI 5608 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 30 April 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5608 of 1995
B E T W E E N :
ELAINE MICHELLE LIMMER
Applicant
AND
BRONSTON PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 30 April 1996
THE COURT ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5608 of 1995
B E T W E E N :
ELAINE MICHELLE LIMMER
Applicant
AND
BRONSTON PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 30 April 1996
REASONS FOR JUDGMENT
This is a claim by a young sales assistant who alleges that on 20 October 1995 the respondent unlawfully terminated her employment as manager of its Greensborough unisex clothing store. Insofar as she brings her claim pursuant to Division 3 Part VIA of the Industrial Relations Act 1988 (the Act), the applicant claims that there was contravention of sections 170DE(1) and (2), 170DB and 170DC of the Act.
On its part, the respondent claims that at all relevant times the applicant was a casual employee engaged for a short period as defined by Regulation 30B(3) of the Industrial Relations Regulations. If this allegation is sustainable, then by reason of section 170CC of the Act and Regulation 30B(1) the applicant is precluded from the benefits conferred by Division 3 Part VIA of the Act.
Regulation 30B states:
“30B(1) Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act:
...(d)a casual employee engaged for a short period within the meaning of subregulation (3).
30B(3) For the purposes of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless:
(a)the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months; and
(b)the employee has, or but for a decision by the employer to terminate the employee’s employment, would have had, a reasonable expectation of continuing employment by the employer.”
In response to the allegations made by the respondent the applicant acknowledges that at the date of her appointment as a shop assistant on 27 June 1995, she was employed as a casual. However, by 14 August 1995 she asserts that the respondent had appointed her as manager of its Greensborough store and that position was as a permanent member of staff.
Only two witnesses were called to give evidence; the applicant and the respondent’s retail co-ordinator, Gelina Singer.
THE FACTS
On or about 27 May 1995 the respondent advertised in the Age newspaper for a casual sales assistant to work at its Ringwood store. The respondent operates a number of stores trading as the fashion outlet “Wire” at Ringwood, Greensborough, Dandenong and Highpoint. The advertisement in the Age newspaper referred to work in the Ringwood store involving weekdays, “... some nights and w/end work. experience pref. but not essential ...”.
The applicant responded to the abovementioned advertisement and was interviewed by Singer and employed in the position at Ringwood from 27 June 1995. At the time she applied for the advertised position the applicant was in full-time employment at a pharmacy. However, there is no doubt that she understood when she applied for the position with the respondent that she was to be employed as a casual sales assistant being paid at the casual rate of $12.35 per hour, with no annual leave or sick pay and the prospect of irregular hours on a weekly roster.
The evidence from both Singer and the applicant confirms that there was some discussion about the applicant wanting a minimum of 20 hours per week, with Singer advising her that she would try to roster her for no less than 20 hours per week; the likelihood being that she would be rostered for longer hours because the respondent’s stores were busy. Singer did point out that she did not offer any guarantee of the hours of work. It was also agreed between the parties that the applicant was not paid any overtime, meal allowances or any of the emoluments permanent staff received pursuant to the relevant award conditions applying to sales assistants.
The applicant worked successfully at the Ringwood store from the latter part of June until mid-August 1995. In that period the rostered hours worked fluctuated between 20.5 hours in one week, and 27 hours in another week. The applicant was also moved between the Dandenong and Ringwood stores during the early period of her employment.
In about mid-August it was agreed that the applicant was asked by the respondent, through Singer, to work at the Greensborough store. Initially it was asserted by the applicant that she was asked to manage the Greensborough shop, however, during cross-examination the applicant conceded that for the period she worked at the Greensborough store from 14 August 1995 to 20 October 1995, she was engaged as an acting manager of the store because Singer and other directors of the company from time to time were in attendance at the store, managing the store on the occasions they attended. It was agreed by both parties that from 14 August 1995 the rate at which the applicant was to be paid was $14.00 per hour in recognition of her status as acting manager. Inasmuch as there was any discussion of any change in the terms of her employment at the new location, such discussion was confined to the matters already mentioned. Whilst the applicant was keen to suggest to the Court that from the time she commenced working at the Greensborough store she was employed as a permanent employee, there was no objective evidence given to support such a conclusion.
It is clear from the rosters prepared by the respondent that in the period commencing 14 August 1995 the applicant worked much longer hours; those hours varying from 16 hours in one week to as much as 43.5 hours in another week. For the same period the applicant was rostered on different days from time to time, as well as working at the Ringwood store on at least one occasion.
The respondent strenuously denies that there was any change in the applicant’s employment status when she went to work at the Greensborough store and, apart from her acting as a manager when the directors of the respondent’s business were not in attendance at the store as well as the increment to the hourly rate paid to her to allow for this additional responsibility, she was employed on the same terms as a casual sales assistant.
It is apparent from the evidence that the respondent was lax in its record keeping and in fulfilling its obligation to pay the applicant in accordance with the increased hourly rate. This appears to have led to discussions between the applicant and Singer because without receiving regular payslips she could not properly work out or check the payment of the hourly rate. Essentially, what the applicant appears to have done is to have queried whether or not she was being paid at the appropriate rate and, as it turns out, that query was acknowledged as being justified with the respondent subsequently making good its omission to pay her at the rate of $14.00 per hour over the relevant period. The respondent’s behaviour in this regard is deplorable but certainly not an evidentiary basis for concluding that there was a change in the applicant’s status from casual employee to permanent employee.
The respondent alleges that during the currency of the applicant’s employment at the Greensborough store, the store faired badly. It was a new store and there was some attempt to demonstrate that on the days that the applicant was left to manage the store the takings were lower than they should have been. Because of my findings in relation to the status of the applicant at the date of termination, it is not necessary for me to deal with this issue on her performance in any detail. Suffice to say that the issue of the takings and the profitability of the Greensborough store led to Singer moving to the store to manage it in the two weeks or so prior to the termination of the applicant’s employment.
It would be fair to say that there was some personality clash between the two women, particularly during the last two weeks of the applicant’s employment and, on or about 16 October 1995, a decision was made by the directors of the company to shift the applicant from Greensborough to Ringwood; resuming her position at Ringwood as a casual sales assistant on her old hourly rate of pay. This decision was imparted by Singer to the applicant on or about 18 October 1995, leading to an acrimonious exchange between the two women.
Singer claimed that at some stage shortly prior to the termination of the applicant’s employment there was a discussion between them where the applicant informed Singer that, on her father’s advice, because she was a casual employee the applicant could be hired and fired at will. The applicant agreed that a conversation took place at some stage in the period shortly before she was terminated when she had again raised with Singer the question of her pay slips and the rate at which she was being paid. Following that discussion she had pointed out to Singer that casual employees lacked rights with regard to being sacked and being warned by an employer. The applicant also told the Court that she believed that Singer was not aware of “a lot of things in that discussion we had”, the inference being that the applicant was far better informed than Singer was about her rights depending on her status as an employee.
In cross-examination the applicant conceded that when she was offered the opportunity to work as acting manager at the Greensborough store there was no discussion about whether the position was as a casual or as a permanent employee. It appears from the evidence that she took the view that she should have become a permanent staff member and, possibly because of her father’s prompting subsequent to her relocation to Greensborough, recognised the limitations on her entitlements if she remained a casual rather than a permanent sales assistant. It was conceded by the applicant in cross-examination that she understood that permanent staff members were entitled to sick leave. Further, she agreed that on or about 19 October 1995, the day after Singer told her she was to return to the Ringwood store, the applicant was absent from work allegedly because she was sick. The applicant agreed that she did not then believe she was entitled to sick pay for this absence and certainly did not seek it.
Having considered all of the abovementioned matters it is clear that the applicant, whilst she desired a certain state of affairs to eventuate so that she had permanent employment, understood at all relevant times that she was employed as a casual sales assistant. On the evidence she was not entitled to demand work of the employer, nor was there a corresponding obligation on the employer to provide her employment in the period alleged. Moreover, it was conceded that she was paid at an hourly rate payable to casual employees and did not seek or obtain, for instance, any sick leave payments or payments for public holidays. The applicant worked on a roster system varying according to the needs of the respondent, and that meant that from time to time the applicant worked long hours and was paid for each extra hour worked at the same hourly rate paid to a casual sales assistant. She received no meal allowances or any of the entitlements of a permanent employee and I conclude from her discussions with Singer and her concern as to her status that she understood how precarious her position could be as a casual employee.
Accordingly, I find on the facts that the applicant was a casual employee. Further, it is apparent that she was at the date of termination a casual employee engaged for a short period because she did not meet the threshold requirement that she be engaged by the respondent on a regular and systematic basis for a sequence of periods of employment during a period of at least six months. Accordingly, she is excluded from the operation of Subdivisions B, C, D and E of Division 3 Part VIA of the Act and her application is dismissed.
Apart from the abovementioned matters, in deciding any issues of conflicting evidence between the two witnesses I placed less weight on the evidence given by the applicant who lacked the candour to fully inform the Court of her earnings from employment since termination in response to direct questions on whether she had obtained employment after 20 October 1995.
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The applicant’s application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate: ........ ........ ........ ........ ...
Dated: 30 April 1996
Solicitors for the Applicant: Moores
Appearing for the Applicant: Dr K. Hanscombe
Solicitors for the Respondent: Dunhill Madden Butler
Counsel for the Respondent: Mr J. Bourke
Date of hearing: 22 March 1996
Date of judgment: 30 April 1996
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