MacLeay v Dalwood

[1996] IRCA 477

DECISION NO:477/96

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION -

Industrial Relations Act 1988, ss 170EA, Regulation 30B, 30(1)(c).

BEVERLEY LORRAINE MacLEAY -v- BERYL DALWOOD

No. NI 1844 of 1996

CORAM:     LINKENBAGH JR
PLACE:       SYDNEY
DATE:          27 SEPTEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  NI 1844 of 1996

BEVERLEY LORRAINE MacLEAY
Applicant

BERYL DALWOOD
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:  Sydney
Date:             27 September 1996

MINUTES OF ORDERS

THE COURT FINDS THAT:

1. I find that the applicant is excluded by the provisions of regulation 30B(1)(c) from the operation of division 3 of Part VIA of the Act. 

THE COURT ORDERS THAT:

1. That the application under section 170EA of the Act be dismissed.

1. The applicant to pay the respondent's costs which are specified pursuant to order 62, rule 1B in the sum of $3500.

1. That the sum of $300 held in the trust account of Keddies in account of gratuity due       from the respondent to the applicant shall be paid to the respondent in part    satisfaction of order 2.

Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  NI 1844 of 1996

BEVERLEY LORRAINE MacLEAY
Applicant

BERYL DALWOOD
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:  Sydney
Date:             27 September 1996

REASONS FOR JUDGMENT

Deliver ex-tempore revised from transcript

The proceedings before the court today are a notice of motion, returnable today, in which the respondent to an application under section 170EA of the Industrial Relations Act 1988 seeks orders of a procedural kind and also seeks an order that pursuant to order 20 of the court rules the proceedings be dismissed, or in the alternative stayed generally, and also seeks costs. The affidavit filed and served in support of the notice of motion raises on its face matters which are of considerable concern, and because of that the court determined that the notice of motion should be dealt with without any delay.

The primary submission of the - I shall refer to the parties as the applicant, being the applicant in the section 170EA application, and the respondent, being the respondent in that application - that is, the employer. The respondent argues that the applicant has no right to bring her substantive application, because she is excluded from the operation of the relevant part of division 3 of Part VIA of the Act because of the provisions of regulation 30B(1)(c) of the Industrial Relations Regulations. That regulation provides that:

An employee, serving a period of probation or a qualifying period of employment, if the duration of the employment or the maximum duration of the period as the case requires, (1) is determined in advance, and (2) is reasonable, having regard to the nature and circumstances of the employment, is so excluded.

The respondent argues that the evidence supports a contention that this contract of employment was subject to a probationary period of three weeks.  The applicant argues that there was a probationary period, but that it was only one week and that that period had expired, therefore making the contract of employment unconditional.  The respondent conceded, for the purpose of today's proceedings, that there was a relationship of employer and employee between the parties, but reserved its right to argue that point in the event that the matter proceeded further to a substantive hearing after today.

The first question therefore that I must determine is what was the length of the probationary period.  For the respondent, Mrs Gaudron and Ms Movsas gave evidence, and for the applicant, the applicant gave evidence herself.  Ms Movsas told the court that a probationary period of three weeks was mentioned in conversations on 23 April, 26 April, 27 April 1996, and on the Sunday following, 29 April 1996.  Mrs Gaudron gave evidence that a probationary period was discussed in her presence with the applicant on or about April 23 - which I find was in fact was April 26 - and on April 27.

The applicant agrees, as I have said, that a probationary period was discussed, but she disagrees with the evidence of Ms Movsas and Mrs Gaudron that the length of that period was three weeks, and she says that the period was one week.  In order to determine which of the versions of the evidence I believe, I can look firstly at the evidence itself, and at the credit - the relative credit which I give to the witnesses.  The primary evidence itself is of little assistance in that it is oral evidence of oral arrangements between the parties.

As I put to Ms Lydiard during her submissions, there is no evidence that the probationary period of one week, for which the applicant argued, was confirmed in any way at the conclusion of that week.  There was the opportunity to do so, and one cannot imagine a more direct or available opportunity than existed on the Sunday following 29 April, which was the day that the applicant commenced work, when Ms Movsas, representing the employer, visited the applicant and paid her her first week's wages.

In my view it is not unreasonable to expect that if the applicant at that time believed that she was on one week's probation, she would have been most anxious and would have taken the opportunity to have Ms Movsas confirm the permanency of her employment from then on.  There is no evidence that that occurred, or that there was any suggestion on that day from one party to the other concerning the confirmation of the probationary period.  The absence of such evidence in my view tends to support the proposition that the length of the probation period was not one week.

As to the credit of the witnesses, on the one hand, for the employer, there is Mrs Gaudron, whose father is a cousin of the respondent.  The respondent is an 87-year-old lady who resides in what Ms Movsas described as "a very smart retirement village" which is located on the lower north shore.  Mrs Gaudron bears the onerous responsibility, as a member of the respondent's family, to assist in making arrangements for her welfare.  Ms Movsas shares that responsibility in her capacity as the respondent's solicitor.

I cannot find anywhere in the evidence any suggestion of any reason or motive for Mrs Gaudron and Ms Movsas to distort the facts relating to the arrangement between the applicant and the respondent, and I find that they are witnesses of credit.  I cannot say the same in relation to the applicant.  There were many examples, which I could quote, in the evidence which caused me to place a question mark over the general credit of the applicant.

Firstly, there is her failure to disclose to the representatives of the respondent, at the time when the employment arrangement was negotiated, that she had outstanding a criminal charge alleging that she had caused physical harm to an elderly man.  Further, the applicant insisted to this court that the circumstances that gave rise to that charge and the subsequent process of that charge through the criminal justice system was not relevant to these proceedings.

Mr Moore submitted that the applicant was a person who was capable of recognising the strength of issues and attempting to turn those issues to her advantage.  That is a general proposition, but the incidents which caused me to question the credit of the applicant certainly tend to support that proposition.  The applicant showed herself, in her evidence, to be unable to accept the reality that she has been convicted by the Local Court of the criminal offence to which I have referred.  The matter is adjourned for sentence on a date late in October, and the applicant is, at this stage, insisting on maintaining her innocence and insisting that she will exercise her right to appeal against that conviction and sentence.

The applicant gave evidence about Mrs Dalwood's personal appearance, to the effect that she was dirty and to the effect that she did not possess clothing of a suitable quality for a woman of her means and position.  That evidence is in direct contrast to the evidence of Ms Movsas, who has acted for Mrs Dalwood for about three years, and who did not agree with the applicant's evidence to this court as to the standard of personal hygiene and presentation of Mrs Dalwood.  Further, the applicant's evidence, in response to cross-examination about statements made by her to the District Registrar of this court on 9 September 1996 was generally evasive and unconvincing.  There is a direct conflict between the evidence of the applicant and for the respondent as to when the applicant first met Mrs Dalwood.

The applicant gave evidence that her first meeting with Mrs Dalwood was in Ms Movsas' office on 26 April 1996.  Ms Movsas and Mrs Gaudron were adamant that that was not the case and that in fact, the applicant did not meet Mrs Dalwood for the first time until 27 April 1996, when the applicant and the respondent met at the retirement village.  Overall, the applicant's demeanour before me failed to impress me and I have, as I have said, grave doubts as to her credibility.  I note also that in relation to the length of the probation period I observed Mrs Gaudron's involuntary reaction when the applicant first mentioned during her evidence that the probation period was for one week.  Mrs Gaudron's spontaneous reaction of genuine surprise did not go unnoticed by the court.

I also note in regard to that, to the length of the probation period, that Ms Movsas gave her evidence as to the reason for which three weeks, the period of three weeks was chosen, indicated that she had in mind appropriate considerations in relation to setting of the period, and her evidence was convincing as to the reasons for the fixing of the period at three weeks. 

I find therefore, that this employment was subject to a period of probation or a qualifying period of employment within the meaning of regulation 30B(c) that was determined in advance.  I must also find to satisfy the requirements of regulation 30B, that that period was reasonable.  The employment arrangement related to the caring of and being a companion for an elderly lady in a retirement village.  The evidence paints a picture of, as I said before, a smart establishment of a respondent who is a woman apparently of some means, if only because she not only occupied her own unit in the village but had apparently had the resources to acquire a further unit which she was to make available for occupation by her companion.

In all of those - the duties which the applicant even described, such as taking the respondent shopping at David Jones and taking her for walks and coffee and dinner and so on, and engaging in activities and communications with the other, both the staff and other residents of the village, all indicate that it had to be an essential part of the or essential for the continuation of this arrangement that the applicant and the respondent were able to form an amicable relationship and that the standards of behaviour of the applicant were suitable given the tone of the retirement village and social standing of the respondent.

I have no doubt that a three-week period was in those circumstances, reasonable. It was probably very reasonable, and it may even well be that a much longer period would also have, in all of these circumstances, been found by the court to be reasonable. Certainly the period of three weeks was reasonable and the three weeks had not expired at the time when the employment relationship came to an end. I also find therefore, that the provisions of regulation 30B(c)(ii) are satisfied. The consequence of that is that the applicant is excluded by the operation of that regulation from bringing an application under section 170EA of the Act.

I will go further and say this, that even if I were wrong in those findings on the face of the evidence which is before me today, the applicant's application had no prospect of real success.  The circumstances in which the arrangement was made, particularly the non-disclosure by the applicant of the matter, of criminal matter in which she was involved and the circumstances of the bringing of the relationship to an end, are relevant.  The relationship came to an end on 10 May 1996, when there was an altercation or there was an incident of some kind involving the applicant and a member of the staff of the retirement village.

The police were called and in the course of their investigating that incident, they became aware that there were outstanding warrants or that there was at least one outstanding warrant necessitating the taking into custody of the applicant.  That warrant arose from the applicant's non-appearance before the local court in relation to the criminal charges to which I have already referred.  The applicant was therefore from 10 May 1996 for some period for which there is no evidence, unable to perform the duties for which she had been engaged by Mrs Dalwood. 

There is also evidence of incidents between 29 April and 10 May, which indicate that the performance of the applicant in her role with Mrs Dalwood was less than satisfactory and certainly not up to the expectations of Mrs Gaudron and Ms Movsas.  I am therefore of the view that even if the applicant's application was not excluded by regulation 30B there would be good reason for the court to apply the provisions of order 20 rule 2 so as to bring the proceedings to an end.  My findings raise the question of costs, which has already been foreshadowed by Mr Moore.  The costs are payable only in accordance with the provisions of section 347 of the Act.  The considerations in relation to costs under that section are similar to the considerations applicable in order 20 rule 2(1)(a) and (b).

This is a case where there are elements of all of the concepts of frivolous, vexatious and without reasonable cause.  I am satisfied that these proceedings were certainly commenced without reasonable cause, and that satisfaction arises from my finding in relation to regulation 30B and the probation period.  This application should never have been commenced and the respondent should never have been put to the trouble and expense which she has been put in defending these proceedings and I propose to make an order that the applicant pay the respondent's costs.  Those costs are provided for in order 62, which provides alternative methods of calculating costs.  I prefer to apply the provisions of order 62 rule 1(b). 

I particularly prefer that option in this case because it is imperative, in my view, that the litigation between the parties to these proceedings be brought to an end as soon as possible.  I am particularly mindful of the respondent's age, and of the fact that she must of necessity be restricted in her ability to deal with matters before the court.  She has to apparently engage in the expense of having her solicitor do many tasks for her, which other younger and fitter members of the community can do for themselves, and I do not propose to put her to any greater time, expense and inconvenience than is absolutely necessary.

I have not addressed in these reasons the submissions made in relation to the applicant's very clearly expressed view that she was continuing to seek reinstatement to her position.  It is probably not of any great relevance except that I should address the submission.  That assertion by the applicant further indicates to me her lack of real understanding of the role that she undertook and goes directly towards the question of her suitability for engagement in this kind of work and is related therefore to many of the other issues which I have already addressed in these reasons.  I will just suspend the reasons at that stage.

I resume the reasons.  I note that the applicant has elected to leave the courtroom whilst I was delivering my reasons for judgment.  I do not know the stage of the proceedings at which she left.  Mr Moore makes an application for a lump sum of $3500 for costs.  He bases that assessment on his solicitor's costs of $250 an hour.  Whilst it might be said that that hourly rate is a little high I note that the solicitors are in practice in the city.  I also note that the solicitors claim - that only six hours is claimed for preparatory work before today by the solicitors and that seems to me to be most reasonable looking at the work that would of necessity have needed to be done.

The solicitors also claim cost of attendance at court today.  I note that Ms Movsas did not arrive at court when the matter was first on this morning, but has been in attendance most of today and no doubt will be engaged in reporting to her client once the proceedings in court are finished today.  The amount of $1200 claim for Mr Moore's fees of today is, in my view, very reasonable.  There is a figure of $600 put on Mr Moore's fees in relation to advising and settling the notice of motion and affidavit in support.

The lump sum of $3500 claimed is less than the total of those components and I consider that it is a reasonable sum and I shall order costs in that amount.  The formal orders that I make are that

I will add to my reasons:  there is an application
There is an application by Mr Moore on behalf of the respondent in view of the order that I have made in relation to costs, that the sum of $300 which is held in his instructing solicitors, Keddies trust account, be applied towards payment of the costs.  The sum of $300 came into the solicitors' trust account on 10 May 1996 and they wrote to the applicant in the following terms:

In view of your conduct this morning which has resulted in the involvement of the police and the matters that have arisen thereafter your arrangement with our client has effectively come to an end.  Our client has provided to us a cheque in the amount of $300 and made payable to our firm, and has asked us to make arrangements for this money to be paid to you.  Could you please contact this firm by telephone on 2649722 Monday, 13 May 1996, or first available date thereafter, such that you may advise us of an address to which to send a cheque from our trust account made payable to you.

And the letter goes on with other matters.  Today during the proceedings the applicant, through her representative, delivered to the solicitors for the respondent an authority authorising them to pay to her solicitors, Ford Gaitanis, all moneys that are owed to her by Mrs Dalwood.  The authority was delivered prior to the application by Mr Moore in relation to these moneys.  It is my view that the authority is not binding on Keddies because it is outside of the terms of the trust on which they held the money as set out in the letter of 10 May 1996.

I shall order that the sum of $300 held by the solicitors not be paid to the applicant but may be dealt with by them in satisfaction, or in part satisfaction of the costs order which I propose to make today.  I will just draft the formal orders.  I will not be a moment.
The findings and orders that I make in proceedings number NI96/1844 today are:

I find that the applicant is excluded by the provisions of regulation 30B(1)(c) from the operation of division 3 of Part VIA of the Act. 

I order that the application under section 170EA of the Act be dismissed.

I order the applicant to pay the respondent's costs which are specified pursuant to order 62, rule 1B in the sum of $3500.

I order that the sum of $300 held in the trust account of Keddies in account of gratuity due from the respondent to the applicant shall be paid to the respondent in part satisfaction of order 2.

There will be no other orders.

I certify that this and the preceding 9 pages are a true copy of the Reasons for Judgment of Judicial Registrar Linkenbagh

Associate:     Renee Cauchi

Date:              8 October 1996

Counsel for the Applicant:            Mr R Moore

Solicitors for the Applicant:          Keddies

Counsel for the Responent:  Ms V Lydiard
Solicitors for the Respondent:      Mr J Gaitanis

Date of hearing:       27 September 1996