Marissa Teresa Novoselac v Andiron Pty Ltd
[1995] IRCA 342
•22 June 1995
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - CONSTRUCTIVE DISMISSAL - WHETHER VALID REASON FOR TERMINATION - WHETHER PROCEDURAL FAIRNESS
INDUSTRIAL RELATIONS ACT 1988, SS170EA, 170DC, 170DE
MARISSA TERESA NOVOSELAC V ANDIRON PTY LTD - WI 95/1057
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 22 JUNE 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY NO. W1 95/1057
BETWEEN: MARISSA TERESA NOVOSELAC
Applicant
AND: ANDIRON PTY. LTD.
Respondent
MINUTE OF ORDERS
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 22 JUNE 1995
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of Orders dealt with by Order 36
of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY NO. W1 95/1057
BETWEEN: MARISSA TERESA NOVOSELAC
Applicant
AND: ANDIRON PTY. LTD.
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE (HEARD IN PERTH)
DATE: 22 JUNE 1995
REASONS FOR JUDGMENT
The applicant is now 24 years old, having been born on 14 February 1971. She commenced employment with the respondent in February 1993 as a part-time medical receptionist. She became a full-time employee about three weeks later.
On 11 January 1995 the applicant was told by the principal of her employer, a Dr. Mills, that she ought to resign rather than be dismissed. In consequence, she resigned from her employment. I find that, in the circumstances, her employment was terminated at the initiative of her employer.
I accept evidence called on behalf of the respondent that during the applicant+s employment, she exhibited sub-standard performance in her clerical duties and she had, on a number of occasions, been rude and abrupt with patients of the practice. The applicant was spoken to on 16 separate occasions up to and including 30 November 1994 about clerical errors, and counselled.
The applicant (who I thought a pleasant young woman), freely admitted to the catalogue of errors in her work which were taken up with her in cross-examination. She was less accepting of suggestions put to her about rudeness to patients.
I accept that on 30 November 1994 the respondent’s practice manager, a Mrs. Biggs, spent about three-quarters of an hour with the applicant, speaking to her about the problems with her performance as an employee. Mrs. Biggs told the applicant that if she did not improve, she would have to go back to part-time employment, and if the practice was still unhappy with her performance, she would have to finish up.
Following this, the applicant was moved to a position with less contact with the public. There were, however, further instances of problems with her work, leading to Dr. Mills calling her in on 11 January 1995 and suggesting she resign. Dr. Mills was of the view that the applicant was not suited for employment as a medical receptionist. Having heard the evidence, and without wishing to be unkind to the applicant, I am inclined to agree with him.
I conclude that the applicant’s employment was terminated for a valid reason within the meaning of ss.170DE(1) of the Act, that being related principally to her capacity rather than conduct. I am satisfied that she was accorded procedural fairness in the events leading up to her termination. The applicant admitted in cross-examination that she knew from the counsellings she had had that her job was very much at risk. She also agreed that in the final meeting of 11 January 1995 Dr. Mills canvassed her employment history with her and she had plenty of time to put her case to him.
The termination was not otherwise harsh, unjust or unreasonable.
The order I make is that the application be dismissed.
I certify that this and the preceding TWO (2) pages are a true copy of the Reasons for Judgment of Judicial Registrar Boulton.
Judicial Registrar:
Date: 22 June 1995
Solicitor for the applicant: Mr. Reyburn
Solicitor for the respondent: Mr. Weston
Hearing date: 25 May 1995
Judgment date: 22 June 1995
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