McGregor v Bratter Company Pty Limited

[1996] IRCA 376

DECISION NO 376/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  NI 1316 of 1996

GALE LORETTE McGREGOR
Applicant

THE BRATTER COMPANY PTY LIMITED(A.C.N. 003 299 027)
trading as PIONEER FLASK
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:  Bowral
Date:             8 August 1996

REASONS FOR JUDGMENT

(Delivered ex tempore and revised from the transcript)

This is an application pursuant to the provisions of section 170EA of the Industrial Relations Act 1988 filed by the applicant in the Australian Industrial Relations Commission on 12 February 1996. The applicant was employed at the Payless Supermarket premises in Mittagong between 27 February 1989 and 28 July 1995. On 30 March 1994 there was a change in the identity of the employer so that the corporation which is the respondent in these proceedings has been the applicant's employer since 30 March 1994.

The applicant was employed at the time that her employment came to an end as the Manager of the Liquor Store which was conducted within the Payless premises.  The last day that she worked was 28 July 1995 and she gave birth to her daughter on 1 September 1995.  The applicant became aware of her pregnancy in January of 1995 and informed Mr Bratter who is the effective controller of the respondent corporation.  She and Mr Bratter had a conversation at that time the precise terms of which are in dispute and to which I will return later in these reasons.  In June the applicant spoke to Ms Cartwright who is the Administrative Assistant to Mr Bratter.  The terms of that conversation are in dispute and I will return to the terms of the conversation later in these reasons.

During that conversation, the applicant was asked to reduce her request for maternity leave to writing.  The applicant did not do so and elected to cease working on 28 July.  She was paid up for all of her outstanding wages and annual leave and an amount which is described in Exhibit “B” as “Termination Pay”.   Particulars of the calculation of the amount paid to her were contained in her pay envelope.  I accept Ms Cartwright's evidence that the information which is set out in Exhibit “B” relating to the period ending 25.7.95 is the same information which was furnished to the applicant with her pay on 28 July 1995.

After 28 July 1995 the respondent set about employing a person to replace the applicant at the Liquor Store.  One other existing permanent employee was trialed for a few weeks and then elected not to take up the position.  Another employee who had been a casual employee up to that time was then trialed in the position and subsequently appointed to it on a full-time basis. 

Early in January 1996 the applicant went to the store to see Mr Bratter but he was busy and she did not see him.  She had a conversation with Ms Cartwright the terms of which are in dispute.  The applicant went to the store again towards the end of January 1996 and spoke to Mr Bratter.  The terms of that conversation are in dispute except that both participants agree that the applicant said words to the effect of a request to return to work and that Mr Bratter indicated that there was no job available for her.  

The terms of conversations as related to the Court by the applicant on the one hand and by the witnesses for the respondent vary in significant respects and it falls to me to determine which of the versions of events is the more believable and the more consistent with my findings of other facts.  The applicant on the one hand asserts that in her conversations in 1995 with Ms Cartwright and Mr Bratter she made clear that she wished to apply for Maternity Leave and that Mr Bratter told her that, in effect, it was not necessary for her to comply with the requirements of legislation relating to Maternity Leave because he “knew” she was coming back to work after her confinement.

I have some difficulty in accepting the applicant's version of those conversations given other matters which are not in dispute in these proceedings.  The witnesses for the respondent deny that the applicant indicated that she was making any application for Maternity Leave other than that Ms Cartwright agrees that she informed the applicant of the requirements of the law in relation to Maternity Leave in June of 1995.  These parties apparently enjoyed an excellent relationship up until January of 1996.  The applicant's relationship with Mr Bratter appears to have been very amicable and it has been a feature of the evidence today on both sides that the applicant was considered by the respondent to be an excellent employee. I am at a loss to understand that given the strength of the relationship and the length of time that the applicant had been employed at the premises the applicant did not ensure that there was a clear understanding of the terms on which she was leaving the job when she left at the end of July 1995.

I accept that Ms Cartwright told the applicant that she was required to put her application in writing and the applicant concedes that she was told that by Ms Cartwright. The applicant's evidence is that thereafter Mr Bratter relieved her of that obligation. The requirements of section 170KB of the Industrial Relations Act and Schedule 14 to the Act impose an obligation on an employer to grant Maternity Leave if certain things have happened. There is no onus, in my view on an employer to ensure that the employee either understands her rights or exercises those rights. The legislation and the Recommendation which is Schedule 14 to the Act give a right to maternity leave if the employee wishes to exercise that right. The requirements are clearly set out and I accept that Ms Cartwright informed the applicant, at least to some extent, of her rights and obligations in the conversation that took place in June of 1995. If returning to work was, as at July of 1995, as significant a factor for the applicant as it was in January of 1996, and apparently is today, one would have thought that the applicant would have taken steps to ensure that she and the employer had a common understanding of what the arrangements were.

The evidence is significant for what it leaves out in many respects.  The applicant did not inform the employer of her expected date of confinement or of the anticipated date of her return to work.  The applicant had no contact with the respondent in relation to her return to work after 28 July 1995 until she went to the premises in early January 1996.  The applicant did not lodge a written application for maternity and the applicant did not ensure that her entitlement to leave and the extent and terms of that leave were confirmed to her either orally or in writing by the employer.

The information on the pay slip which is Exhibit “B” refers to “Termination Pay”.  The applicant did not raise any query about the use of that expression at the time and in fact the pay slip was apparently of such little significance to her that she cannot remember receiving it and did not retain it.  The evidence is that the applicant visited the supermarket premises from time to time after 28 July during 1995.  There is no evidence of her raising any query as to the status of the two persons who were carrying out her duties during that time.  The evidence of the respondent's witnesses is that neither of those persons who were chosen to replace the applicant was informed that their filling of the position was in any way contingent upon the applicant's rights in relation to Maternity Leave.

It might be argued that, leaving aside the question of whether or not there was maternity leave applied for and granted, and accepting the applicant's evidence as to her conversations with Mr Bratter that an agreement was formed between her and Mr Bratter in relation to her return to work. The difficulty with that is that the terms of that agreement are, at their highest, no more than that the applicant could come back after the baby was born.

Having observed Mr Bratter and heard his evidence of his experience as a businessman I find it extraordinary that he would have entered into an agreement in those uncertain terms.  Mr Bratter was running a Liquor Store.  He employs in the two companies at these premises some 40-45 people and I cannot believe that it would have been conceivable from Mr Bratter's point of view to have the position of Manager of the Liquor Store dependent upon such an uncertain state of affairs. I also cannot accept, having observed Mr Bratter, that he would have ignored his responsibilities in relation to the persons who replaced the applicant in the position if he had understood that the applicant had exercised her right to apply for Maternity Leave.

My conclusion therefore on the facts is that there was no termination of this employment at the initiative of the employer.  The employment came to an end in circumstances where there was almost a dearth of communication between the employer and the employee.  The obligation to make an application for Maternity Leave and to ensure that that application was granted must rest with the employee and she did not make any real attempt in my view to carry out the steps which are set out in Clause 32 of Part 2 of Schedule 14 to the Act.

An employee cannot hold the employer to ransom in the terms which this applicant seeks to do.  The purpose of the Maternity Leave provisions is to allow acknowledgment of parental responsibilities, but to balance the granting of consideration of those responsibilities to the employee with the interests of the employer in imposing on the employee an obligation to provide the employer with sufficient information so that the employer can structure its staffing arrangements and run its business taking into account the entitlement of a particular employee to Maternity Leave.

The areas of substantial dispute in the evidence is the witnesses recollections of conversations.  Whilst I have indicated that I prefer the evidence of the witnesses for the respondent, my decision that there was no termination of this employment at the initiative of the employer is based on the undisputed facts and essentially on the fact of what the applicant did not do in relation to her application for Maternity Leave.  As I have said, even if it could be said that there was an attempt at an agreement, or even if I accept the applicant's argument that there was an agreement that she could come back, that agreement was so vague in its terms that I have difficulty in accepting that there was any agreement at all. 

For those reasons this application will be dismissed.  I add that even if there had been a termination of the employment at the initiative of the employer, on the applicant's case one has to whether or not in all of the circumstances of the case, any remedy would have been appropriate.  The applicant's evidence was that Mr Bratter, in the January 1996 conversation, offered her casual employment, which she refused.  That refusal was in the circumstances of her not having given Mr Bratter any definite date for her return to work and of her arriving unannounced at the store and requesting her job back at a time when it suited her to have her job back.  Mr Bratter denies that he made the offer, but on the evidence of the applicant, her entitlement in all the circumstances of this case to any compensation would be severely truncated.

The order I make is therefore that the application be dismissed.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of Judicial Registrar Linkenbagh

Associate:     Renee Cauchi

Date:              19 August 1996

Counsel for the Applicant:            Mr Robert Reitano
Solicitors for the Applicant:          R.L. Whyburn & Associates

Counsel for the Respondent:         Mr J Wilson
Solicitors for the Respondent:      Bilinsky & Co

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - TERMINATION AT INITIATIVE OF EMPLOYER

Industrial Relations Act 1988, ss 170EA, 170KB.

GALE LORETTE MCGREGOR -v- THE BRATTER COMPANY PTY LTD (A.C.N. 003 299 027) trading as PIONEER FLASK

No. NI 1316 of 1996

CORAM:     LINKENBAGH JR
PLACE:       Bowral
DATE:          8 August 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY  NI 1316 of 1996

GALE LORETTE McGREGOR
Applicant

THE BRATTER COMPANY PTY LIMITED(A.C.N. 003 299 027)
trading as PIONEER FLASK
Respondent

Coram:         Judicial Registrar Linkenbagh
Place:  Bowral
Date:             8 August 1996

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The application is dismissed

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