Lupoi v Fox
[1996] IRCA 485
•03 October 1996
DECISION NO: 485/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
SA1091 OF 1996
B E T W E E N:
GRACE LUPOI
Applicant
A N D:
PHILLIPS FOX
Respondent
REASONS FOR JUDGMENT
3 OCTOBER 1996 RITTER JR
INTRODUCTION
This is an application for a remedy in respect of the termination of the employment of Ms Lupoi by Phillips Fox on 1 March 1996. The application is made under section 170EA of the Industrial Relations Act of Australia 1988 (C'th) ("the Act").
The remedies sought by Ms Lupoi are:-
Damages, pursuant to section 170EE(5) of the Act, for an alleged contravention of section 170DB of the Act; and
Compensation under section 170EE(2) of the Act, for an alleged contravention of section 170DE(1) of the Act.
The respondent is a national law firm which has an office in Adelaide. The office in Adelaide comprises a total of about 90 partners, solicitors, and administrative and support staff. Ms Lupoi was employed as the receptionist at the main front desk at Phillips Fox in Adelaide from November 1993 to 1 March 1996.
Both the applicant and the respondent were represented by counsel. By agreement between counsel, the respondent proceeded with its case first. The respondent called as witnesses Ms Bernadette Barratt, who is currently employed at Phillips Fox as a supervisor of the accounts section; Ms Catherine Brimage, who has been, from February 1996, a human resources manager at Phillips Fox; and Mr Joseph De Ruvo, a partner of Phillips Fox and its Adelaide administrative director. Under section 170EDA(1) of the Act, the respondent had the onus of proving, under section 170DE(1), that there was a valid reason for the termination of Ms Lupoi's employment, based on her capacity or conduct, or the operational requirements of the firm.
The respondent's case was that the reason for termination was that Ms Lupoi did not follow a directive given to her by Ms Barratt, whom the respondent alleged was her supervisor at the relevant time. The respondent's case was that Ms Lupoi failed to follow a reasonable and lawful directive of her employer and that her failure to do so meant that the respondent had no option but to terminate her employment, in the circumstances. The respondent alleged that the directive given was that Ms Lupoi be part of a roster to clean a kitchen at Phillips Fox. It was alleged that the directive had been given by Ms Barratt, as Ms Lupoi's supervisor. The termination of employment was effected by Mr De Ruvo on 1 March 1996, the alleged directive having been given earlier that week.
The case of Ms Lupoi was, in effect, that there was no valid reason for the termination of her employment because:
She did not fail to comply with a directive that was both lawful and reasonable; and,
In any event, the failure to follow the directive did not mean that the employer could validly terminate her employment.
SECTION 170DE(2) OF THE ACT
This application was filed prior to the High Court decision in The State of Victoria & Ors v Commonwealth of Australia, unreported, Full Bench, on 4 September 1996. At page 57 of the judgment of the majority, their Honours decided that section 170DE(2) of the Act which had provided that a reason was not a valid reason for termination of employment if, paraphrasing, it was harsh, unjust or unreasonable, went beyond the terms of the Termination of Employment Convention (Schedule 10 to the Act) to a constitutionally impermissible degree. However, the Court considered that section 170DE(2), together with section 170EDA(2), which concerned the onus in relation to section 170DE(2), were structurally severable from the remainder of the relevant division of the Act. Therefore, the Court held that the remainder of the division of the Act was constitutionally valid.
Section 170DE(2) was inserted by Act No. 98 of 1993 and commenced in March 1994. It was further amended by Act No. 168 of 1995, which commenced on 15 January 1996. It is, of course, unfortunate but unavoidable that there was a 2½ year delay between section 170DE(2) commencing as law and it being declared to be constitutionally invalid by the High Court. This has had the effect that the Court, parties to the Court and the wider community have been labouring under the false belief that section 170DE(2) validly affected the jurisdiction of the Court and the employer/employee relationship.
The presence of both sections 170DE(1) and (2) of the Act has affected the judgments given by the judges and judicial registrars of this Court. This is because, on many occasions, the Court has not needed to finally determine whether or not a reason for the termination of employment was valid, absent section 170DE(2).
In my opinion, this has meant that the Court has not, to date, had to direct its attention to the finer meaning of the word "valid" in section 170DE(1). The Court will increasingly have to do this, given the High Court decision. Although the majority said that valid and harsh, unjust and unreasonable are not synonymous, there is no doubt legal and factual overlap between the two. If a reason lacks validity, the termination will be harsh, unjust and unreasonable.
Conversely, an unjust termination, for example, may, in the circumstances, lack validity. An illustration would be a termination of an employment relationship which breached the contract of employment. Such a termination would be unjust or unreasonable and also, at least in most cases, invalid. It would be invalid because the termination had no legal basis: see, for example, the reference to repudiation of an employment contract at page 146 ff of Macken, McCarry and Sappideen, The Law of Employment, 3rd Ed, 1990. I will return to the question of "valid reason" later in this judgment.
THE FACTS
As stated, Ms Lupoi was employed as a receptionist from November 1993. When she was first employed, she was not given a duty statement, but learnt of her duties from the previous main receptionist. Ms Lupoi was first employed as a three months' probationary employee and was then made a permanent employee. Initially, her duties did not include answering a telephone switchboard. However, after a switchboard system was introduced, it became part of her duties.
In July 1995, a duty statement was drawn up for Ms Lupoi, and this was tendered as an exhibit. Generally, Ms Lupoi's duties as the main receptionist were to greet clients and others when they attended at the firm; receive deliveries; store certain data on the computer system, and other duties incidental to the aforementioned. The duty statement summarised that she was to "provide a receptionist service and a prompt and reliable switchboard service; maintain and distribute information to practitioners regarding pre-trial conferences and chambers; other duties as directed".
Prior to February 1996, Ms Lupoi's supervisor was Ms Jean Russell-Price. Ms Russell-Price worked at Phillips Fox until she resigned just prior to Christmas, 1995. Ms Russell-Price was replaced by Ms Brimage; however, it seems that Ms Brimage's responsibilities were broader than those of Ms Russell-Price. Whereas Ms Russell-Price was simply a personnel manager, Ms Brimage's responsibilities went beyond this. She said in her evidence that her "brief" included looking at the support service structures of the firm, and increasing the performance level and teamwork of the support staff. She said that the support staff were responsible to her, but there were supervisors of the support staff in the various sections who were first responsible for them. Between the resignation of Ms Russell-Price and the employment of Ms Brimage, Mr Mark Hornsby, the accountant for Phillips Fox, acted as the person responsible for administrative matters and the support staff.
At Phillips Fox, there is a total of five kitchens. Four of these are kitchens which the staff can use to make themselves tea and coffee. In each of these kitchens, there is a dishwasher and the administrative staff have the responsibility to load the dishwasher and run it through its cycle. The fifth kitchen was located near the reception desk where Ms Lupoi worked. Ms Lupoi's termination of employment was about the cleaning up of this kitchen.
The kitchen was located next to a boardroom. The boardroom was used for staff drinks on Friday every fortnight, client lunches which took place on Thursdays, fortnightly lunchtime continuing legal education sessions for solicitors (which on occasions occurred weekly), a solicitors' lunch on Tuesdays and for making cups of tea and coffee during the day. It seems that clients attending at Phillips Fox would often be asked whether they wanted a cup of tea or coffee on arrival. This would be made by Ms Lupoi or the secretary of the person whom the client had come to see. The empty cup and saucer was supposed to be returned to the kitchen and put into a dishwasher for cleaning. Ms Lupoi said that she customarily did this, although this was disputed by Ms Barratt, a subject to which I will return.
A cook attended at Phillips Fox to prepare the lunches that I have referred to. It was common ground that the cook cleaned up after making the lunches. This included the cleaning of pots, pans and utensils used to make the lunches. The pots and pans were kept in a cupboard which was locked. The cook kept the key to the cupboard.
It was also common ground that there were often left-overs from the lunches that were held. The left-overs were left in bowls or platters in the kitchen for partners and employees to consume during the balance of the day.
Ms Lupoi had a relief receptionist, whose name was Ms Rebecca Alderman. Ms Alderman was said to have been about 18 to 20 years of age by Ms Lupoi. Ms Alderman worked in what was described as the communications section of the firm, and had other duties, including photocopying, outside deliveries and general clerical duties.
One of the duties that Ms Alderman did, prior to the end of February 1996, was the cleaning up of the kitchen near the reception desk. In particular, there was often a problem with the kitchen on Monday mornings after the Friday night drinks. Although there was a directive that the boardroom was to be kept clean and that the last person attending at the drinks function should clean up the boardroom, the instruction was that the glasses, platters, etc, should be taken into the kitchen. They could either be put into the dishwasher, in so far as was possible, or left in the kitchen. It seems that the kitchen would remain in this state until Monday morning when, as I have said, Ms Alderman customarily cleaned it up.
Whilst Ms Russell-Price was the personnel manager, if Ms Lupoi thought that the kitchen was in an unsatisfactory state, she would telephone Ms Russell-Price who would organise for somebody to come down and clean it up. Again, most often, this was Ms Alderman.
As I have said, Ms Russell-Price left Phillips Fox in December 1995. Ms Brimage commenced in February 1996. Ms Lupoi said that in February 1996 she was told that Ms Alderman had been promoted to a position in the accounts department of Phillips Fox. Ms Lupoi said that she was not sure who told her that.
A few days after this, on a Monday morning, the kitchen was in an unsatisfactory state, according to Ms Lupoi. She said that she spoke to Ms Barratt about the matter. She said that she understood that Ms Barratt was a "payroll clerk" and a supervisor of "some of the girls in accounts", although she was not sure of the extent of her supervision. Certainly, Ms Lupoi said that she was not aware that Ms Barratt was her supervisor. Ms Lupoi said that she asked Ms Barratt who was going to do the kitchen, because she assumed that Ms Alderman was not going to do it, now that she had been promoted. Ms Lupoi said that Ms Barratt said that she was right, Ms Alderman could no longer do the kitchen cleaning.
Ms Barratt suggested that Ms Lupoi speak to Ms Brimage. Ms Lupoi called Ms Brimage and told her that Ms Barratt had suggested she speak to her about cleaning the kitchen. Ms Lupoi said in evidence that Ms Brimage said that why didn't she, Ms Lupoi, do it. Ms Lupoi said that she paused but said that she needed help because she could not clean the kitchen whilst doing reception work. Ms Lupoi said that Ms Brimage again suggested that she do it herself and, in reply, Ms Lupoi suggested that she, Ms Brimage, speak to Ms Barratt.
Ms Lupoi said that Ms Brimage and Ms Barratt then came past her office two to three times that morning. She was later informed by Ms Barratt that she would be required to do kitchen duty in future with Ms Alderman.
Whilst Ms Lupoi used the expression "kitchen duty" in her evidence, it was clear that this was used in the context of the problem that had arisen about the washing up of things that Monday morning. The evidence was that the date that this occurred was 26 February 1996. This was the Monday of the week which culminated in Ms Lupoi's termination of employment on 1 March 1996.
Ms Barratt prepared a roster for the cleaning duties of the kitchen. The roster showed that Ms Alderman would do the job for two weeks and then Ms Lupoi would do the job for two weeks. The roster did not distinguish between the putting of cups and saucers into the dishwasher throughout the day and running the dishwasher at the end of the day, and the other duties involved in keeping the kitchen clean, including the cleaning up after Friday night drinks and the washing of the platters and bowls on which the left-overs from the lunches for solicitors, clients and continuing legal education, were left.
Ms Barratt said that she created the roster because Ms Lupoi had indicated that she would not participate in kitchen duties. Ms Barratt said that she had received complaints from the other staff who could not see why they had to clean up the various kitchens at the firm when Ms Lupoi, on Ms Barratt's assertion, did not. Ms Barratt then said that she created the roster to make it fair to all staff. She said that she spoke to Ms Lupoi on 26 February 1996 and advised her that she was going to send her a roster for the sharing of the cleaning of the kitchen between herself and the relief receptionist. She said that Ms Lupoi gave a very short response that she would not do kitchen duties.
It is clear from this exchange, on Ms Barratt's evidence, that Ms Barratt did not distinguish between the placing of cups and saucers into the dishwasher and the other kitchen cleaning duties referred to. Ms Barratt said that she told Ms Lupoi that she would send her a roster. She then typed the roster in the terms set out above and sent it to Ms Lupoi by E-mail. The E-mail was sent on 27 February 1996. On 29 February 1996, Ms Lupoi sent an E-mail reply. This said that she would not do kitchen duties and said that Ms Barratt should speak to Mr De Ruvo about the matter. Ms Barratt obtained a computer print-out of the E-mail communication which was tendered as an exhibit.
Ms Barratt said that she spoke briefly with Mr De Ruvo and from the conversation with him thought that kitchen duties were part of Ms Lupoi's responsibilities.
In the period between 26 February 1996 and 1 March 1996, Ms Lupoi also spoke to Mr De Ruvo. Mr De Ruvo said that Ms Lupoi had come into his office and said that "they" had asked her to do kitchen duties. Mr De Ruvo said in evidence that he was in the middle of something and said that he would look into it. Ms Lupoi then left the room. Mr De Ruvo said that he later spoke to Ms Brimage and asked her what had happened. Ms Brimage said that Ms Lupoi had been given a directive to participate in kitchen duties but had refused. The circumstances of the alleged refusal will be set out later.
Ms Lupoi said in her evidence that she spoke briefly to Mr De Ruvo to ask why the system involving the cleaning of the kitchen was being changed. She said that he replied that he would find out what was going on. She thought that this discussion possibly took place the morning after the initial discussion with Ms Barratt.
Ms Lupoi made it clear in her evidence that whilst she had no objection to taking cups and saucers to the kitchen, loading them in the dishwasher and running the dishwasher, she did not think she should be responsible for cleaning the kitchen on the Mondays after the Friday nights drinks functions or washing platters and bowls after the lunches.
She gave a number of reasons for this. She said that generally she should not leave the reception desk. This was because that was the place where she greeted clients when they arrived at the firm, and where the switchboard was located which she had to answer to receive incoming calls for the firm. Ms Lupoi said that she did not think it was appropriate for the receptionist to handwash dishes. She said that she did not believe that this was part of her job description and was not a reasonable requirement of the job of a receptionist. She said that she did not think it was appropriate for a receptionist "to be up to her elbows in sudsy water".
Ms Lupoi emphasised that it was important for her, as a receptionist, to dress well and impress clients with her grooming and dress. She said that as a result, she always wore suits to work. There was indeed no issue that Ms Lupoi always dressed extremely well and, according to the evidence of Mr De Ruvo, made a good impression this way.
Ms Lupoi's position was that she was quite prepared to ensure that the cups and saucers were placed in and run through the dishwasher, as long as there was a relief receptionist doing the reception work while she was doing this, but she was not prepared to handwash dishes. She thought this was inconsistent with her position and the performance of her duties as a receptionist.
Implicit in this is that Ms Lupoi thought it was, in a sense, beneath her to do the handwashing of dishes. Her belief in this was, no doubt, enhanced by the fact that for the previous two and a half years, while she had been employed at Phillips Fox, she had not done this job. It had been the junior support staff, and Ms Alderman in particular, who had done it. In February 1996, therefore, she believed that she was being asked to do something which had hitherto been done by people more junior than her, in both age and position. I think that Ms Lupoi regarded the request as demeaning to her position.
There was a meeting between Ms Barratt and Ms Lupoi about kitchen duties on 29 February 1996. Ms Barratt said that she spoke to Ms Lupoi briefly at reception about the matter and then they went to Ms Barratt's office. Ms Barratt said that she indicated to Ms Lupoi that she thought that Ms Lupoi had a problem with the kitchen roster. She said that Ms Lupoi said that she did, in a "loud and vicious way". Ms Barratt said that she was instructing Ms Lupoi to participate in the kitchen roster as part of her duties. Ms Barratt said that Ms Lupoi leant over the desk at her and yelled at her in a "loud and vicious tone". Ms Barratt said that she was taken aback and feared for her safety. She claimed that Ms Lupoi said that she did not care who Ms Barratt was, she was not doing it. Ms Barratt said that she moved back to give herself more space and said that Ms Lupoi was being asked to maintain the kitchen in a neat and tidy way. She asserted that Ms Lupoi then said, "Who do you think you are, I am not dressed like this to clean pots and pans."
Ms Barratt claimed that all Ms Lupoi was being asked to do was to stack the dishes in the dishwasher, and that Ms Lupoi said that she would not do this. She said that if Ms Lupoi was refusing to do this, it would be a first warning. She claimed that Ms Lupoi said that this was fine, and walked out. She then said to Ms Lupoi that there would be a meeting in the office of the Human Resources Manager, Ms Brimage, which followed not long afterwards.
Ms Lupoi's version of this meeting was quite different. She said that she had no knowledge, prior to this meeting, that Ms Barratt was meant to be her supervisor. Although she had had discussions with Ms Barratt previously about matters relating to the data inputting work that Ms Lupoi did, and about obtaining relief staff from Ms Barratt's section when she needed to leave reception at times, she had previously reported to the Personnel Manager, Ms Russell-Price. Ms Barratt, in her evidence, said that she had been the supervisor of Ms Lupoi but, when cross-examined, had difficulty in explaining how she had supervised any of the duties of Ms Lupoi as receptionist, apart from the limited duties which involved the accounts section.
Ms Lupoi said that at the meeting with Ms Barratt, Ms Barratt's "opening line" was that she was Ms Lupoi's supervisor and that she was to take orders from her. Ms Lupoi said that she would not do kitchen duties officially and would not handwash platters. She said that she was not previously aware that Ms Barratt was her supervisor. She had assumed that, after Ms Brimage worked at the firm from February 1996, she would be her supervisor in the same way that Ms Russell-Price had been. She said that she had not been told any differently.
It seems that Ms Brimage wanted to put in place a system where, although she was responsible for personnel overall, supervisors in individual sections of the firm were responsible for the support staff under them. However, she did not communicate this to Ms Lupoi, nor did she instruct Ms Barratt to do so. Mr De Ruvo, in his evidence, said that Ms Barratt became the supervisor of Ms Lupoi because Ms Russell-Price had resigned before Christmas, 1995 and that after that, Ms Brimage had, as one of her functions, the reorganisation of the support staff structure. As part of this, Ms Barratt became the supervisor of the receptionist. Mr De Ruvo said that he did not take any formal steps to inform Ms Lupoi of this. He thought that Ms Brimage would do this as part of the restructure. Mr De Ruvo said that he did not know how Ms Brimage did this.
Ms Brimage did not claim, in her evidence, to have specifically informed Ms Lupoi of the change in supervisory arrangements. Ms Lupoi's job description, tendered as Exhibit B, showed that she was responsible to the personnel manager. When this was put to Ms Brimage, she said that she was a human resources manager and not a personnel manager. However, she conceded that there had been no change to Ms Lupoi's job specification, and no communication to Ms Lupoi orally or in writing by her that she was in the future to be supervised by Ms Barratt and not Ms Brimage, who had taken over the role previously held by the personnel manager, in addition to her other duties. Ms Brimage conceded it was a possibility that Ms Lupoi still believed that she was her supervisor.
Ms Lupoi said that she was shocked when she was told by Ms Barratt that she was her supervisor, at the meeting on 29 February. She said that she repeated that she could not do kitchen duties without relief at reception and that she would not wash dishes. She said that Ms Barratt shouted at her and said that she should meet her in Ms Brimage's office in 15 minutes. She said that Ms Barratt's tone was abrupt. She said that Ms Barratt, contrary to the latter's evidence, did not try to explain to her that all that she was being asked to do was to load and unload a dishwasher every day.
As stated, the versions of this meeting are very different. In my opinion, elements of both versions are probably, to some extent, accurate. I was not generally impressed with the way in which Ms Barratt gave her evidence. I thought it was given in a stilted manner which gave it the appearance of being rehearsed. Making this sort of assessment of her evidence carries with it the possibility that I may be misinterpreting nervousness for the appearance of giving rehearsed evidence, rather than a genuine recollection. However, it was particularly when Ms Barratt gave evidence about the "threatening" way that Ms Lupoi had allegedly behaved that I found her evidence most difficult to accept. This evidence, in particular, was given in a very stilted way and, in my opinion, did not reflect a recollection of an experience which she found to be genuinely frightening.
This is not to say that I do not think that Ms Lupoi would not have been angry at what Ms Barratt was communicating to her. I think that Ms Barratt was trying to communicate to her, a directive that henceforth Ms Lupoi was going to participate in kitchen duties. Further, I think that the clear impression was that this was to include handwashing platters and bowls and the clean-up on Monday mornings. I do not think it was made clear to Ms Lupoi, if it was the case, that Ms Lupoi was being excluded from the Monday morning clean-up. Ms Barratt is younger than Ms Lupoi. I think that she was trying to assert her superiority to Ms Lupoi in a manner which Ms Lupoi did not find welcome. This was particularly so when Ms Lupoi had not previously been aware that Ms Barratt was her supervisor.
When pressed in cross-examination, Ms Barratt said that all that Ms Lupoi was being asked to do was to put the cups and saucers into the dishwasher and run the dishwasher cycle once a day. She said that this would have taken Ms Lupoi about 10 minutes. She claimed that Ms Lupoi was not being asked to handwash dishes and in particular was not being asked to do the Monday morning clean-up. She said that all that Ms Lupoi was being asked to do was something which she had been previously meant to do but had not done. This was disputed by Ms Lupoi. I accept Ms Lupoi's evidence that she did take the cups and saucers to the kitchen, put them in the dishwasher and run the dishwasher when it was appropriate.
I find unconvincing Ms Barratt's explanation for the need to create a roster, if all Ms Lupoi was being asked to do was a 10 minute job each day which she should have been doing, anyway. When I asked her about this, Ms Barratt said that the roster was created to make things fairer. I asked her, "Fairer to whom?" She initially said, "To both people", meaning Ms Lupoi and Ms Alderman. She said that this would ease the load on them. However, she agreed, when I put it to her, that this could not have been correct because it would not ease the load on Ms Lupoi if, as she asserted, Ms Lupoi had previously not been doing any of this work.
My view of the evidence, that Ms Lupoi was being asked to participate in washing up on Monday mornings, is enhanced by the evidence of Ms Brimage's involvement. Ms Brimage was first involved when Ms Lupoi herself first raised the problem of a wash-up on Monday morning. It was in that context that the whole issue of kitchen duties arose. Further, Ms Brimage, in her evidence, said that she could not see any reason why Ms Lupoi had not been able to do the washing up on the Monday mornings. In particular, she was quite dismissive of Ms Lupoi's request for someone else to do the washing up on Monday, 26 February 1996. She said that when she inspected the kitchen, she did not think it would take much to clean it up, and that Ms Lupoi would readily be able to do this. She said that the receptionist now employed in place of Ms Lupoi, Ms Alderman, was able to combine this job as well as that of receptionist.
For these reasons, I think that either expressly or implicitly Ms Barratt was asking Ms Lupoi to handwash dishes, including on Mondays, and that Ms Lupoi indicated that she did not want to do this. When this dispute could not be resolved, it was decided to involve Ms Brimage.
Ms Brimage said that when Ms Barratt was seen by her, she was visibly shaken. It was submitted that this was consistent with Ms Lupoi reacting in the manner that Ms Barratt had described. I have said earlier that I think that Ms Lupoi would have been angry, but I think that Ms Barratt has, to some extent, exaggerated this to justify her own position. I do not accept that Ms Barratt was genuinely "very scared" for her safety, as she claimed when cross-examined. However, I also think that Ms Lupoi would have been quite angry and insistent to Ms Barratt, whom she described, in my opinion somewhat dismissively, as a "payroll clerk" in her evidence, and who was younger than her.
With respect to the meeting in Ms Brimage's office, Ms Barratt said that Ms Lupoi again refused to go on the kitchen roster. She said that Ms Lupoi leaned over and said that she did not care who Ms Barratt was, she was not doing kitchen duties. Ms Barratt said that she moved backwards to give herself more space. It was claimed that Ms Lupoi said that she was not going to clean pots and pans. Ms Barratt said that Ms Lupoi was very heated and said on more than one occasion that the receptionist should not have to clean up, given the way that she was dressed. She said that Ms Barratt tried to pacify her, but Ms Lupoi stormed out of the room.
Ms Brimage also described Ms Lupoi's heated behaviour during this meeting. She said that when she entered the room, Ms Lupoi slammed the door, sat down abruptly in a chair, leaned over to within a few inches of Ms Barratt and yelled at her. Ms Brimage told her to calm down because she thought she was being over-aggressive. Ms Brimage said to Ms Lupoi that it was in her job specification that she should do kitchen duties and that other staff were involved in the roster, as well. She said that it was not a big deal, it was the cause of some ill will by the other support staff, and that Ms Lupoi should do kitchen duties like the others. Ms Brimage said that Ms Lupoi said she was not going to do kitchen duties.
Ms Brimage said that she believed that Ms Lupoi was disobeying a direction and that Ms Lupoi said "fine" in response to this. Ms Brimage asked Ms Lupoi if she really wanted to work at Phillips Fox. She said that Ms Lupoi said that she was not doing dishes and that she did not dress like she did to scrub pots and pans. Ms Brimage thought that this was an over-reaction because there were no pots and pans involved. She claimed Ms Lupoi said that she was not doing kitchen duties, her job was up to others to discuss, and she left.
Ms Brimage said that she thought that this behaviour was inappropriate, that Ms Lupoi was disobeying a direction from Ms Barratt as her supervisor, and that something should occur as a result of this. She arranged to see Ms Lupoi with Mr De Ruvo in his office to discuss the matter.
Ms Lupoi's evidence of the meeting in Ms Brimage's office was different. She said that she came into the office and sat in a chair normally. Ms Lupoi said she sat opposite Ms Brimage, who was on the other side of the desk. She was sitting next to Ms Barratt and did not have to lean over her to be close to her. She said that she reiterated that she was not going to handwash plates, platters and bowls. She said that she did not say anything about pots and pans, for the good reason that pots and pans were not involved in the cleaning-up issue, as the cook did them. She said that Ms Brimage's opening line was, "Do you want your job?" Ms Lupoi said that she liked her job but did not need this. She said that she thought she was being treated disgustingly and that it was not fair. She said if that was what the job was like, she did not need it. She denied behaving in the way described by Ms Brimage and Ms Barratt in their evidence.
Once again, I think that what actually happened at the meeting was probably somewhere between the various versions. As is not uncommon in such situations, I think the recollections of the individual witness focuses upon the unreasonableness, from their perspective, of the other participant(s). Further, after the event, the individual participant may better recall (consciously or subconsciously) that part of the conversational behaviour of the other which favours their position. For example, Ms Lupoi's position is obviously favoured by her downplaying her anger and the manner of refusal of the direction. Ms Brimage's position is enhanced by her acting as though she was a reasonable manager who tried to calm down the unreasonable employee and calmly explain what was being involved. Ms Barratt's position is enhanced if she emphasises Ms Lupoi's irrational behaviour and comes across as simply trying to do her job to put out a reasonable roster for the doing of the job which she claimed Ms Lupoi was supposed to be doing previously, but had not.
In the end, I think it likely that Ms Lupoi was angry during the course of the meeting, although perhaps not to the extent claimed by Ms Brimage and Ms Barratt. I think it likely that Ms Brimage did say early on in the conversation something to the effect that "Did Ms Lupoi want her job?" I think it likely that when she said this, this did not calm things down but merely inflamed them. Therefore, if she thought that this statement would make Ms Lupoi calm down, she was in error. In any event, a deadlock was reached and Mr De Ruvo's involvement was sought.
I should also mention that Ms Brimage said that she consulted Ms Lupoi's job specification and this indicated that she should do kitchen duties. This is not in fact what the job description said. The job description of Ms Lupoi in part said:-
"General:
1. Enter client details on Macintosh database
2. Pre-Trial Conferences
3. Chambers
4. Check filelist for unknown mail and telephone enquiries
5. Ensure that the front kitchen is maintained in a neat and tidy manner
6. Cut out cause list from paper each morning
7. Organise drycleaning
8. Close and lock front doors
9. Responsible for compliance with Occupational Health, Safety and Welfare legislation
10. Other duties as directed."
Ms Lupoi said that she complied with clause 5, prior to Ms Russell-Price's departure, by telephoning Ms Russell-Price and asking for someone to come and clean the kitchen if it was required. Ms Russell-Price sent someone to clean the kitchen, generally Ms Alderman.
The meeting between Mr De Ruvo, Ms Brimage and Ms Lupoi took place in Mr De Ruvo's office, first thing in the morning on Friday, 1 March 1996. Mr De Ruvo said that he had been told before the meeting that Ms Lupoi had been given a directive to do kitchen duties and that she had refused to comply with it. He also said that Ms Brimage had told him that doing kitchen duties was in Ms Lupoi's job specification. He said that he did not himself consult the job specification at that time, but relied on what Ms Brimage said. To this extent, Mr De Ruvo was misled by what Ms Brimage told him. It was not in the job specification that Ms Lupoi do kitchen duties, as set out above. Nevertheless, this was Mr De Ruvo's state of knowledge on 1 March 1996.
Mr De Ruvo said that the purpose of the meeting was to tell Ms Lupoi that she had been given a directive to do kitchen duties and that if she did not obey the directive, she could be terminated. Mr De Ruvo said that he told Ms Lupoi that she had been given a directive to do kitchen duties. He said that Ms Lupoi said that he [Mr De Ruvo] did not understand what was involved. Ms Brimage said to Ms Lupoi, "We've been through this." Mr De Ruvo said he said words to the effect that he was not concerned with what was involved in kitchen duties, that she had been given a directive by her supervisor and she was required to do it. Mr De Ruvo said that Ms Lupoi said words to the effect that it was not a professional way to run the firm.
Mr De Ruvo said that Ms Lupoi had been given a directive which was in her position statement and she had to do it. He said that Ms Lupoi should think about it and go away until Monday to think about it. He said that Ms Lupoi said she did not need to think about it, she would not do kitchen duties. Mr De Ruvo said that he therefore had no alternative but to terminate her employment. He said that Ms Lupoi said, "Fine" and left his office. Mr De Ruvo did not then have any further involvement, other than authorising Ms Brimage and Mr Hornsby to work out Ms Lupoi's termination pay. The termination pay was worked out to 1 March 1996. Therefore, there was no component for notice.
Ms Brimage said in her evidence that Mr De Ruvo said that he understood that Ms Lupoi had refused to do kitchen duties. She said that Ms Lupoi replied that she was not going to clean pots and pans. Mr De Ruvo said that he was not interested in that, it was in her job specification, there was a directive to do it and she should. Ms Lupoi said she would not do kitchen work. Mr De Ruvo said she should have the weekend to think about it, but Ms Lupoi said there was no point, she would not change her mind. Mr De Ruvo then said he had no option but to terminate her employment and Ms Lupoi stormed out of the office.
Ms Lupoi said in evidence that Mr De Ruvo opened the meeting by saying that he did not know why he was involved in this, but that Ms Lupoi had been given a direction to do kitchen duties. Ms Lupoi said that she told him that he did not realise what was involved in handwashing dishes. Mr De Ruvo said he was not interested.
Mr De Ruvo indicated that Ms Lupoi had been given a direction to carry out an instruction. Ms Lupoi said that she was not going to handwash dishes. Mr De Ruvo indicated that if she did not follow the direction, she would be sacked. She said that she told Mr De Ruvo that it was his firm and he could run it as he saw fit, but she was not going to handwash dishes or do kitchen duties. She agreed that Mr De Ruvo said she had until Monday to think about it, and she said there was no point, she was not going to handwash dishes. She said that Mr De Ruvo then indicated that her employment was terminated. She said that she returned to her desk and later Ms Brimage and Mr Hornsby came out to her desk with the termination cheque and asked her to leave.
The versions of the meeting in Mr De Ruvo's office on 1 March 1996 do not differ greatly. I think it likely that Mr De Ruvo did comment to Ms Lupoi that he did not know why he was involved in the matter. Indeed, this is understandable. Mr De Ruvo is an experienced solicitor, partner of a law firm, and its administrative director, who could have understandably thought that he had better things to do than try to resolve a dispute about washing up in a kitchen. He could have expected that middle management could have resolved this issue, rather than it ending up on his plate.
I also think it likely, for similar reasons, that Mr De Ruvo did not want to know the details of the directive that had been given to Ms Lupoi and her reasons for refusal. He saw the issue as being that Ms Lupoi had been given a directive to involve herself in kitchen duties, this was something which was part of her job specification, but she refused to do it. He saw it as a clear example of an employee failing to carry out a reasonable and lawful instruction from middle management. If she was not going to carry out the instruction, then he thought that he had no option but to terminate her employment. Implicit in this is that Mr De Ruvo regarded it as a clear case of insubordination. By saying that she could have until Monday to think about it, it is clear that Mr De Ruvo thought that mature reflection on the issue by Ms Lupoi may solve it. In the frustration of the moment, at least, Ms Lupoi did not accept this and said that this would make no difference. Mr De Ruvo then thought he had no option but to terminate her employment.
It is against this factual matrix that I need to determine whether there was a valid reason for the termination of employment.
Before turning to this issue specifically, I have the clear impression that I have not heard clearly and specifically the true story behind the dispute that evolved, although snippets emerged from the evidence. I think it likely that Ms Lupoi, because of her age, experience and position as receptionist, regarded herself as superior to the junior support staff. I think the junior support staff were not happy about this and probably took their complaints to Ms Barratt or Ms Brimage.
I get the clear impression that Ms Barratt did not get on particularly well with Ms Lupoi, despite her evidence to the contrary, and thought that it was appropriate for Ms Lupoi to be taken down a peg or two. I think that this is what Ms Barratt tried to do. I think that she tried to impress her superiority over Ms Lupoi. There were difficulties with this. Ms Lupoi is older than Ms Barratt, did not know that Ms Barratt was meant to be her supervisor and, I think, regarded herself in a superior position in the firm to Ms Barratt. I also think that Ms Lupoi was a bit "precious" of her own position, and her desire not to get her "hands dirty" by washing plates or doing a job which she thought demeaned her position.
However, all of this should have been able to have been resolved, in my opinion, by sensible management. The person who should have resolved it, in my view, was Ms Brimage. However, she failed to do this and it ended up, unfortunately, with Mr De Ruvo. This led to a regrettable situation where a person who was acknowledged to be a good receptionist for the firm, had her employment terminated.
I think it arguable that Ms Brimage failed in some fairly basic management principles. If, as Ms Brimage understood, Ms Barratt and Ms Lupoi had a heated argument just prior to the meeting in her office, it made no sense to get them back in the room for another heated argument. She would have been better advised to try to speak to them both individually and calmly, to try to find some way in which the dispute could be mediated. However, she failed to do this.
She also failed to properly comprehend Ms Lupoi's job specification, in so far as it referred to the cleaning up of the kitchen, and what had been done to date. She also failed to take into account that a 33 year old receptionist of some experience who had been performing her duties well, might be understandably concerned if she was now going to be asked to handwash dishes in addition to what she had been doing previously. I think that Ms Brimage's blindness to this issue was also, in part, caused by her view that Ms Lupoi was acting above herself and needed to be taken down a peg or two. An important part of the management of employees, in my opinion, is to understand their idiosyncracies and sensitivities. Ms Brimage showed no comprehension of such as they applied to Ms Lupoi and washing up.
The whole issue, which could rightly be described as "a storm in a teacup" (or perhaps a storm about a teacup) instead of being sensibly resolved by Ms Brimage, ended up with Mr De Ruvo. He was left in a difficult position. The newly appointed human resources manager came to him and told him that an employee had been given a directive, consistent with her job specification, that she was refusing to comply with. As stated earlier, Mr De Ruvo was misinformed, to some extent, about the job specification. Further, he did not want to know the detail of what Ms Lupoi was being asked to do. He regarded it as a case of insubordination. She was being asked to do something which was within her job specification, yet refused to do this. I also think it likely that Ms Lupoi thought that if she forced the issue, the Partners would back her. If she thought this, it turned out to be an error of judgment.
VALID REASON FOR TERMINATION
Section 170DE(1) of the Act, referred to earlier, relevantly provides that an employer must not terminate an employee's employment unless there is a valid reason, connected with their capacity or conduct. The valid reason here was said to be the failure to carry out a lawful and reasonable directive from a supervisor.
In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, Northrop J at 373 referred to some dictionary definitions of "valid" and said:
"In its context in s 170DE(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 s 170DE(1). At the same time, the reason must be valid in the context of the employee's capacity or conduct, 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 s 170 DC."
In the paragraph that followed, His Honour discussed the relationship between sections 170DE(1) and (2) and 170DC.
In Kenefick v ASC (1995) 62 IR 107, Wilcox CJ, at 116, agreed with the above passage of the judgment of Northrop J in Selvachandran and said:
"I respectfully agree, and I think it follows that the reason must be genuine, that there must be a causal relationship between the reason and the termination, and that the termination must be a logical response to the employee's capacity or conduct, or the employer's operational requirements. Of course, there is often more than one logical way of dealing with a problem. While the subsection requires the employer to establish that the termination was a logical way of dealing with the problem of employee capacity or conduct, or operational requirements that gave rise to it, it does not require proof that this was the only logical course. The subsection was designed to inhibit capricious terminations, not to put the Court in the employer's managerial chair."
These passages do not specifically consider, in the case of misconduct, whether there must be a qualitative aspect of the misconduct such as to warrant dismissal; that is, whether a termination of employment for any misconduct is a "valid" reason or whether it is a question of degree, depending on the circumstances. In my opinion, the latter must be correct. It cannot be correct that making a decision to terminate employment will, in all cases, be a sound, defensible or logical response to any misconduct.
Further, it cannot be correct, in my opinion, that one can simply characterise the misconduct in a broad sense and proceed from that point to a decision that the reason for termination was valid. There must, in my opinion, be a qualitative assessment of the particular misconduct at issue. Take, for example, the issue of theft. It is generally said that theft from the employer constitutes a valid reason for the termination of employment. However, I do not think that this would be true in all situations.
In Stothers v Garbutt, unreported, IRCA 416/96, 27 August 1996, at page 15, I said:
"Where there is a termination based on misconduct, for there to be a valid reason for termination, the misconduct must have a quality sufficiently serious to warrant the termination of employment. For example, it would be difficult to say that a secretary at a large office who stole one paper clip could be categorised by her employer as dishonest and a thief, and therefore there was a valid reason for termination of employment. In my opinion, there must be a qualitative aspect of the misconduct sufficient to warrant the sanction of termination."
The same can be said for that aspect of misconduct constituted by disobedience, insubordination or failure to comply with a lawful and reasonable command, whichever way the issue is put. One must, to consider whether there has been a valid reason for termination, assess the extent of the particular misconduct in all of the circumstances of the case.
This will necessitate an examination of, amongst other things:-
The extent of the disobedience, in terms of the length of time over which the employee has been disobedient;
The nature of the disobedience in relation to the contract of employment;
Any warnings that had been given for failing to carry out the instruction
The reasonableness of the request, albeit that there is a controversy about whether a request must be both lawful and reasonable - see Macken, et al, The Law of Employment, page 201 and in particular, footnote 47;
Whether there has been a calculated and persistent course of disobedience;
Whether the disobedience strikes at the essence of the contract of employment in the sense that it is inconsistent with the continuing relationship of employer and employee - see Macken, et al, page 199.
At that page, the learned authors quote from the decision of Hacksalls Ltd v McDowell [1930] AR (NSW) 620 at 629 per Cantor J, where his Honour said that:
"It is necessary to determine, having ascertained what the contract was between the parties (1), whether the order disobeyed by the employee was one within the terms of scope of the contract and, if so, (2), whether applying the principles laid down in the cases . . . 'the conduct of the party who has broken the contract is such that the other party is entitled to conclude that the party breaking the contract no longer intends to be bound by its provisions', or . . . 'whether his conduct was inconsistent with the maintenance of the relation it creates'."
Further, von Doussa J, in Bartucciotto v Euro Printing Co Pty Ltd, unreported, (1996) IRCA 72/96, at page 17, albeit in a different context, quoted with approval from the judgment of Gooley v Westpac Banking Corporation (1995) 129 ALR 628 at 636-637, per Wilcox CJ. In that judgment, his Honour referred with approval to a passage from the judgment of Smithers and Evatt JJ in North v Television Corporation Ltd (1976) 11 ALR 599. In North's case, their Honours said, as quoted by von Doussa J at page 17,
"The subject matter is a termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract, and the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation, it is reasonable to interpret the expression 'misconduct' as referring to conduct so seriously in breach of the contract that by standards of fairness and justice, the employer should not be bound to continue the employment.
This situation would arise if there was conduct inconsistent with the fulfilment of the express or implied conditions of service. It is conduct of that kind which will justify dismissal at common law."
In the same passage of North, their Honours quoted from the Master of the Rolls in Law v London Chronicle (Indicator) NewspaperLtd (1954) 2 All ER 285 at 287 and 289, where it was said:
"I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions, and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is wilful. It does (in other words) connote deliberate flouting of the essential contractual conditions."
Von Doussa J, in Bartucciotto at page 18, said that he thought that section 179DB(1)(b) was intended to reflect the common law position referred to in the passage. Subsection 170DB(1)(b) refers to serious misconduct.
His Honour's conclusion in Bartucciotto was that although there was a valid reason for termination, it was not one that justified summary dismissal without a payment in lieu of notice. As his Honour's decision indicates, and section 170DB of the Act confirms, there is a distinction between there being a valid reason for termination and there being a valid reason for a summary dismissal. In that case, it was the failure of an employee to get a customer order in writing, which was the primary, essential reason that led to the dismissal of the applicant. Von Doussa J characterised this as a significant breach of duty and constituted a valid reason, for the purposes of section 170DE(1): see page 14.
What the analysis of the authorities indicates is that, in considering a question of disobedience, one must first consider the terms of the contract of employment.
In this case, it must be remembered that the applicant was primarily employed as a receptionist. Her obligations in relation to keeping the kitchen tidy formed only a minor part of her duties to the end of February 1996; that is, for the first two and half years of her employment. At least until the time the duty statement was drawn up, in about July 1995, it was a case where the terms of the contract of employment had to be ascertained from the way in which the employment contract was carried out: see Connelly v Wells (1995) 55 IR 73. In that respect, Ms Lupoi's duties in respect of the kitchen had consisted of taking the cups and saucers to the kitchen from reception, putting them into the dishwasher and occasionally running the dishwasher. It did not include washing plates, platters and bowls or being responsible for washing up on Monday morning. This conduct was consistent with the duty statement.
Properly characterised, in my opinion, the respondent, through Ms Barratt, was endeavouring to effect a change in the duties of Ms Lupoi. The way in which the duty statement was drafted confirms this. Although it should also be noted that clause 10 of the duty statement said that Ms Lupoi would be required to do "other matters, as directed" when this was brought to the attention of Mr De Ruvo, he specifically said that he was not relying on this clause in his determination that Ms Lupoi was not obeying a direction of her supervisor.
In my opinion, particularly in the context of the way in which the issue first arose, Ms Lupoi was being asked, on a roster basis, to wash up in the kitchen on Monday mornings and during the course of the week. It may be that she was being offered relief at reception during those periods of time, but even if she was, it effected a change in the way in which she conducted her duties. More than that, it was asking her to do something which is not ordinarily considered to be part of the duty of a receptionist. It is the case generally, I think I can safely say, that the main desk receptionist at a relatively large law firm does not carry out washing up. Indeed, this was certainly the case at Phillips Fox for the two and a half years that Ms Lupoi was employed, prior to the end of February, 1996.
If, however, one was to accept the evidence of Ms Barratt on this issue (which I do not), Ms Lupoi was only being asked to do a job of loading, unloading and running the dishwasher which would take, at most, 10 minutes per day. If this were correct, it can be seen that this would involve 50 minutes' work per week of a 40 hour week; or less than one-fortieth of Ms Lupoi's time.
I also note that Ms Lupoi had not yet failed to carry out an instruction, but had merely indicated that she would not be part of the roster in the future. Therefore, one cannot assess whether her conduct would have been persistent or ongoing, once the roster was put into effect.
In the end, I am not satisfied that there was a valid reason for the termination of Ms Lupoi's employment. In particular:-
Ms Lupoi merely gave notice of a future intention not to do something which the employer wanted to change about the way in which she conducted her duties.
The change was to have Ms Lupoi do something which would not normally be part of the duties of a main receptionist, particularly one of 33 years of age, with considerable experience, and who had been recognised as a good "front face" for a large city law firm.
The cleaning of the kitchen was not a major part of her duties as a receptionist and, given that she had not as yet been persistently disobedient, one cannot say that the extent of the disobedience was a relevant factor.
Ultimately, however, it cannot be said that the failure to carry out this particular instruction struck at the heart of the contract of employment between the law firm and their main receptionist. It was a minor, incidental matter. It was one which should have been resolved by those in middle management, without the need to involve Mr De Ruvo. It did not, and regrettably to all concerned, Ms Lupoi was terminated.
In my opinion, her termination of employment was contrary to the Act. It was not for a valid reason associated with her capacity or conduct as a receptionist.
In his opening, Mr Cole, counsel for the respondent, indicated that an important issue in the case was the duty to obey orders. He put it in words to the effect that "if an employee does not obey the command of the employer, where does it all stop?" I agree that an important obligation resting on an employee is the obligation to follow the instructions of the employer; see page 124 of Macken, et al. However, in the modern industrial context in Australia, one cannot take a high-handed or dictatorial view of a failure to perform an incidental aspect of one's employment when an employee has been performing satisfactorily in the main requirements of a position which requires some professionalism. I note that in Macken, et al, at page 204, the learned authors state that "in determining whether the disobedience is sufficiently serious to justify summary dismissal, the consequences resulting from the refusal to obey orders will be relevant." This must also be so in determining whether there is a valid reason for termination of employment. As stated at page 205, if disobedience is likely to result in injury to fellow employees or extensive damage to an employer's property, and this is known to the employee, summary dismissal would ordinarily be justified. Mr Bourne, for the applicant, submitted in this case quite strongly that the situation was not analogous to a situation where there would be a breach, for example, of an important safety instruction. I note that Macken, et al, at page 205 say that "rarely will wilful disobedience to a lawful command be the sole ground for dismissal. Very often, disobedience will be coupled with various acts of misconduct, including absence from work." This is not a case of the latter type.
I find that there was no valid reason for the termination of employment. The termination of employment was, as a consequence, in contravention of section 170DE(1) of the Act.
It should also not be said that in this case there was not a termination of employment for a valid reason, in the sense that Mr De Ruvo had a well-founded belief, after due inquiry, of misconduct; see Sangwin v Imogen Pty Ltd, unreported, IRCA 73/96, von Doussa J, 8 March 1996; Suares v Commonwealth Bank of Australia, Murphy JR, 10 May 1996, unreported; and Cohen v Orient Trading Pty Ltd, Murphy JR, 31 May 1996, unreported. This was because, in this case, Mr De Ruvo did not conduct any meaningful inquiry. As he said himself, he did not want to know the details. If he had made such an inquiry, he may well have found out that Ms Lupoi's reasons for objecting to washing up were valid ones and therefore her failure to carry out Ms Barratt's instruction was not unreasonable.
SECTION 170DB
As I have found that there was no valid reason for termination, it follows that I have not found that the exception contained in section 170DB(1)(b) is present; that is, it was not a case where the employee is guilty of serious misconduct - that is, misconduct of such a kind that it would be unreasonable to require the employer to continue the employment during the period of notice required by the table set out in section 170DB(2) of the Act. As Ms Lupoi was employed for more than one year but not more than three years by Phillips Fox, she was entitled, by that table, to at least two week's notice. She did not get this. The remedy for a breach of section 170DB(1) is damages under section 170EE(5), constituting the amount which equals the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee, because of the employment continuing during that period.
In this case, Ms Lupoi's salary was $26,000 per annum, or $500 per week. Therefore, the quantum of damages under section 170EE(5) is $1,000. I do not include in this assessment the obligation of Phillips Fox to pay superannuation: see Kenney v Loveland, unreported, IRCA 26/96, 30 January, 1996, Ritter JR.
COMPENSATION
As set out earlier, Ms Lupoi seeks compensation for the contravention of section 170DE(1).
Section 170EE(2) provides that where the Court considers that reinstatement of the employee is impracticable, the Court may, if the Court considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate. Section 170EE(3) states that "the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment, but the amount of compensation must not exceed the amount of remuneration that would have been received by the employee in respect of a period of six months that immediately followed the day on which the termination took effect, if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect".
In my opinion, it is appropriate in all the circumstances of the case, to award Ms Lupoi compensation.
This is because, as a result of the termination of employment in contravention of the Act, Ms Lupoi has suffered economic loss. She said in her evidence that since the termination of her employment, she had immediately sought employment with Thomsons, a larger firm of solicitors than Phillips Fox, in Adelaide, with whom she had been employed previously. Thomsons agreed to employ Ms Lupoi on a part-time basis. I infer that this was the only position available for Ms Lupoi at the time. She has worked, on average, 15 hours per week. She has earned in total the amount of $3,094.30.
Ms Lupoi said that she has had difficulty in looking for other employment. She said that with respect to one employment application she made to another firm of solicitors, they telephoned Ms Brimage, who did not give Ms Lupoi a good reference. Therefore, it made it difficult to seek further employment, Ms Lupoi said in her evidence.
An employee has an obligation to mitigate their loss resulting from an unlawful termination of employment: see Davey v Cray Holdings, unreported, IRCA 127/96, Ritter JR, 27 March 1996.
I am not satisfied, on balance, that Ms Lupoi has made all reasonable efforts to seek alternative employment. It seems that she has been fairly selective in seeking work as a receptionist for a law firm, rather than seeking work in other areas, such as a receptionist for other professions or businesses.
Further, given the finding of the Court that the termination of her employment was in contravention of the Act, it is unlikely that her termination by Phillips Fox will hinder her in the future from obtaining gainful employment to a greater level of remuneration.
In all of the circumstances, I think it appropriate to compensate Ms Lupoi for 50 per cent of her economic loss to date, and for a further four weeks to allow her time to obtain and commence in employment of a similar remuneration to that which she had with Phillips Fox. There was no evidence before me which would suggest than an experienced receptionist, aged 33, would have difficulty in finding a position as a receptionist which would pay $26,000 per annum or thereabouts in the city of Adelaide.
Therefore, Ms Lupoi's compensation will be:-
The amount she would have been paid if she continued to be employed by Phillips Fox, $26,000 per annum, for six and a half months, being $14,083, less $3,094.30, being the amount earned with Thomsons, equalling $10,989.03, divided by two, to equal $5,494.52; and,
Four weeks at $500 per week equalling $2,000.
The total amount of compensation will therefore be $7,494.52.
I will order that the amounts ordered to be paid to the applicant be so paid to her within 14 days of the date of the order.
I certify that this and the preceding 35 pages are a true copy of the reasons for decision of Judicial Registrar Ritter.
Associate :
Dated : 3 October 1996
APPEARANCES
Counsel for the Applicant: Mr T Bourne
Solicitors for the Applicant: Stanley and Partners
Counsel for the Respondent: Mr S Cole
Solicitors for the Respondent: Phillips Fox
Date of Hearing : 19 September 1996
Date of Judgment : 3 October 1996
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - receptionist - alleged failure to obey a reasonable and lawful instruction - meaning of "valid" - whether VALID REASON to terminate - compensation
Industrial Relations Act 1988 (C'th) ss170DB, 170DE(1), 170EE
Income Tax Assessment Act 1936
Bartucciotto v Euro Printing Co Pty Ltd, IRCA 72/96, von Doussa J, 21 February 1996, unreported.
Cohen v Orient Trading Pty Ltd, IRCA 228/96, Murphy JR, 31 May 1996, unreported.
Connelly v Wells (1995) 55 IR 73.
Davey v Cray Holdings Pty Ltd, IRCA 127/96, Ritter JR, 22/3/96, unreported.
Garbutt v Stothers, IRCA 416/95, Ritter JR, 27 August 1996, unreported.
Gooley v Westpac Banking Corporation (1995) 129 ALR 628.
Hacksalls Ltd v McDowell [1930] AR (NSW) 620.
Kenefick v ASC Pty Ltd (1995) 62 IR 107.
Kenney v Loveland, IRCA 26/96, 30 January, 1996, Ritter JR, unreported.
Law v London Chronicle (Indicator) NewspaperLtd (1959) 2 All ER 285.
North v Television Corporation Ltd (1976) 11 ALR 599.
Sangwin v Imogen Pty Ltd, IRCA 73/96, von Doussa J, 8 March 1996, unreported.
Senathirajah Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
Suares v Commonwealth Bank of Australia, IRCA 170/96, Murphy JR, 10 May 1996, unreported.
Macken, McCarrie and Sappideen, The Law of Employment, 3rd Ed, Law Book Company, 1990.
GRACE LUPOI V PHILLIPS FOX, SA1091 OF 1996
Before: RITTER JR
Place: MELBOURNE
Date: 3 October 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
SA1091 OF 1996
B E T W E E N:
GRACE LUPOI
Applicant
A N D:
PHILLIPS FOX
Respondent
MINUTE OF ORDERS
3 OCTOBER 1996 RITTER JR
THE COURT ORDERS AND DECLARES THAT:
The respondent terminated the employment of the applicant in contravention of section 170DB(1) of the Industrial Relations Act 1988 (C'th) ("the Act").
The respondent terminated the employment of the applicant in contravention of section 170DE(1) of the Act.
Subject to order 5, in respect of the termination of employment of the applicant in breach of section 170DB of the Act, the respondent is to pay the applicant damages in the sum of $1,000 within 14 days.
Subject to order 5, in respect of the contravention of section 170DE(1) of the Act, the respondent is to pay the applicant $7,494.52 within 14 days.
The amount that the respondent is to pay to the applicant in satisfaction of orders 3 and 4 above is less any sum required to be deducted therefrom by the respondent pursuant to the Income Tax Assessment Act 1936 and actually paid by the respondent to the Commissioner of Taxation with proof thereof to be furnished to the applicant within 14 days.
There be liberty to apply as to the terms of this order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
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