Melissa Woods v Eastcoast Cellars Pty Limited

[1994] IRCA 174

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - procedural fairness - warnings - whether employee had adequate opportunity to respond - whether facts upon which warnings properly investigated - whether a valid reason - whether termination harsh, unjust or unreasonable.

Industrial Relations Act 1988, ss.170DE, 170DE and 170EE.

Nicolson -v- Heaven and Earth Gallery Pty Limited (1994) 126 ALR 233

Wheeler -v- Philip Morris Limited (1989) 32 IR 323

Byrne -v- Australian National Airlines Limited (1994) 120 ALR 274

Gregory -v- Philip Morris Limited (1988) 80 ALR 455

Bostik (Australia) Pty Limited -v- Gorgevski (No.1) (1992) 36 FCR 20

MELISSA WOODS -v- EASTCOAST CELLARS PTY LIMITED

NO. VI 1514 of 1994

Before:     MURPHY JR

Place:      MELBOURNE

Date:       12 DECEMBER 1994

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1514 of 1994

BETWEEN:

MELISSA WOODS
Applicant

AND

EASTCOAST CELLARS PTY LIMITED
Respondent

MINUTES OF ORDER

12 December 1994  Judicial Registrar Murphy

THE COURT ORDERS THAT:

1. The termination of the applicant’s employment by the respondent contravened sections 170DC and 170DE(1) of the Act;

2. The respondent within 14 days of this date pay to the applicant the sum of $11,157.80 in compensation.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1514 of 1994

BETWEEN:

MELISSA WOODS
Applicant

AND

EASTCOAST CELLARS PTY LIMITED
Respondent

REASONS FOR JUDGMENT (EX TEMPORE)
(Revised from Draft Transcript)

12 December 1994  Judicial Registrar Murphy

This is an application under Part VIA of the Industrial Relations Act 1988, wherein the applicant alleges that she was, on 26 August 1994, unlawfully terminated from her employment with the respondent.

The Evidence

The applicant gave evidence herself and also called her husband as a witness.  The respondent led evidence from Mr Philip McCarthy, its general manager;  Mr Wright, former manager of Eastfield Cellars; two employees, Andrew Harrison and Richard Anderson;  a consultant, Mr Peter Willis;  and two customers, Mr Brad Martin and Mr Arthur Newsome.  I have carefully considered all the evidence in this matter in coming to my findings and conclusions.

The applicant in this matter is aged 24 and has been in the workforce for the last eight years working in various capacities for the respondent and the previous owner of the business now conducted by the respondent. The business trades under the name Eastfield Cellars.  The applicant is a shop assistant at the respondent's premises in Croydon and she commenced that job when she finished her year 10 studies at the local secondary college.  She commenced as a junior shop assistant in the retail licensed grocery.  Upon her turning 18, she was able to sell liquor in the premises.

The business was purchased by the respondent in 1987 and from 1987 to 1992 it was managed by Mr Wright.  The applicant worked as a shop assistant over the entire period, with Mr Wright as the manager.  In about January 1992, Mr Wright ceased to be the manager and Mr Philip McGrath, a director and general manager of the respondent, assumed the duties previously held by Mr Wright and effectively became manager of the business.

The respondent conducts this business in conjunction with another business known as Mayerling Cellars.  At all times Mr McGrath has been based at Mayerling Cellars but over the period of the applicant's employment regularly attended at Eastfield Cellars and was in regular communication by phone.

The Applicant’s Duties

The applicant's duties consisted of shop assistant duties, maintaining stock records, unloading deliveries, cleaning, banking, locking and unlocking the shop and attending to security.  Regularly the applicant would be entrusted with the takings from the business, which she would keep at home for the night.  She was trusted implicitly by the respondent and even took her own wages in cash from the till.

The clientele of the store is apparently quite regular and the store sells a middle range of liquor.  There are upwards of 100 customers a day.  The actual store itself is of a medium size, has no separate office as such and although it sells groceries, the major activity is the selling of liquor.  The evidence was that the grocery section is being wound down.  The applicant was until about May 1993 employed under an award of the Industrial Relations Commission of Victoria.  Since that time, however, she has been employed under an informal agreement between herself and the respondent, whereby she works 40 hours per week for a flat rate of pay.  The hours vary on each day and if she works longer than 40 hours per week she takes time off in lieu the following week.  She receives no meal breaks but receives a $5 meal allowance on Friday.  She was paid a gross amount of $442.30 per week.  On a Friday, she works 12 hours from 9 am to 9 pm. She is not entitled to any paid sick leave or overtime or public holidays. Her position as shop assistant is shared with another employee.

Complaints About The Applicant’s Performance

The respondent led evidence of two major complaints about the applicant's performance prior to Mr Wright ceasing employment.  Evidence was led by Mr McGrath and Mr Wright that a couple of times in the period up to January 1992 they had a discussion with the applicant in relation to a particular customer, Mr Evans.  The applicant accepts that there were difficulties with that customer, but she is unable to recall in detail the discussions in relation to that customer.  In about 1990 Mr Wright formed the view that the applicant may have been bored and she accepted additional duties of the responsibility of opening and closing the shop and having a set of keys.

Another particular complaint relates to the Croydon Bowling Club.  There was a volume of evidence about complaints by two particular officers of that club who dealt with the respondent's business.  It was a major customer of the store and it was put to the applicant that it had been lost as a customer as a result of her attitude.  In cross-examination Mr McGrath said he did not know whether that customer had been lost before or after her termination.  I find it difficult to believe that an organisation would change its custom just because it did not happen to get on with a particular employee or shop assistant.

The evidence, however, was that the two employees involved had complained about her manner and Mr McGrath raised this with her by phone in mid-1993.  Subsequently, just prior to Christmas 1993, he attended Eastfield Cellars and raised the matter of relations with the Croydon Bowling Club with her.  He advised her to be courteous to customers and to smile.  The applicant could only recall one of these two conversations and her evidence was that the content of that conversation was an aside at the end of a telephone conversation, that there had been a complaint about her manner by the Croydon Bowling Club.  She did not take that conversation as any form of formal counselling.

Even on the respondent's version, the conversations prior to Christmas 1993 were not characterised by Mr McGrath as a formal counselling session.

The First Written Warning

In March 1994 Mr McGrath became aware of further complaints about the applicant's performance and attitude and decided to issue her with a formal warning.  He put that warning in writing, attended at the premises and discussed it with her.  The substance of the first warning was that she had been surly and abrupt, bordering on outright rudeness, in relation to customers  His evidence was that she did not request details of the customers listed in that first warning and that she said very little in the conversation.

The applicant maintained that she did ask for details.  There is also a dispute as to whether she was effectively told to read the warning and sign it.  She gave evidence that she was told that unless she signed it, her job was not guaranteed.  Mr McGrath denied this.  The applicant said the same thing applied in relation to the second warning.  I accept the applicant's version in relation to this particular matter because the final two paragraphs refer to the need for customers to be treated courteously and with a smile and goes on:

“We must be helpful at all times and provide quick and efficient service.

Failure to do so not only jeopardises your position, but puts the viability of this business under further pressure.”

I also accept the applicant's version because Mr McGrath gave evidence that the store was under pressure financially and that it was on the market.  I also accept the applicant's evidence that she in effect sought details of the complaints against her on the occasion of both warnings.  It strikes the Court as a perfectly natural response of an employee who is serving 100 customers per day to ask for details of any alleged customer who has complained.

The applicant gave evidence that there was no further reference to the matters in the first warning in the period between March 1994 and July 1994.  I accept that evidence.  She also gave evidence that she was not given a copy of the first warning and this was accepted by Mr McGrath.

The Second Warning

In July 1994, as a result of information received from an employee, Mr Anderson, Mr McGrath prepared a final warning.  The particular incident which gave rise to the final warning was conveyed to Mr McGrath by Mr Anderson and a customer, Mr Brad Martin.

The first matter referred to in the final warning was the applicant's dealing with a female customer who sought a bottle of wine.  It was suggested that her manner was offensive and no assistance was offered in the purchase.  The second matter was that Mr Martin advised Mr McGrath that he had attended the store and had been ignored for a period and had then left.  The final warning also refers to Mr Anderson having complained that the applicant's level of efficiency in doing day to day tasks had reduced dramatically.  A formal warning was typed up by Mr McGrath and he attended at the store to discuss it with the applicant.

Mr McGrath declined to provide to the applicant the names of the customers referred to in the warning.  In relation to her performance, Mr McGrath referred to an incident wherein the cool-room had not been re-stacked when Mr Anderson arrived at work on the Monday, after a weekend.  The applicant gave an explanation in relation to the cool-room.  The evidence from Mr McGrath was that she was then asked if she understood the ramifications of the final warning and was asked to sign it.  She claimed that she thought that this part of the conversation related only to the references to her performance in re-packing the cool-room and the shelves and did not relate to the complaints by the two customers.

I accept Mr McGrath's version on this aspect of the matter as the final clause in the letter asks the applicant to state that she has "read and fully understands the contents of this letter and that my employment will be terminated unless my attitude and performance improves."  Significantly for the issue of the ultimate termination, it was only when this final warning was issued that the applicant received a copy of the first warning.  As I have indicated, the final warning provided that the applicant would be terminated within a month unless her performance and attitude improved. 

Mr McGrath gave evidence that he indicated to her that if there were further complaints, her position would be terminated.  This is not reflected explicitly in the final warning.  Mr McGrath gave evidence that he received two subsequent complaints about the applicant, one to him directly and another to an employee, Andrew Harrison.  After agonising over the matter for a couple of days he decided to terminate her employment and did so on 26 August 1994. 

Other Evidence

Aside from the formal counselling sessions, the respondent alleged that on numerous occasions over the last couple of years Mr McGrath had reminded the applicant to be friendly, courteous and to smile.  Further, he gave evidence that he inquired of the applicant both by phone and in person as to whether she was having any difficulties with customers.  The applicant admitted that Mr McGrath did inquire as to how things were going, but not in any matter which was referable to the matters which had been discussed in the warnings.  I accept the applicant's evidence on this point and find that there were not constant reminders by Mr McGrath that she was to take a deep breath and smile as asserted by him in his evidence.

Other Complaints

Apart from the formal complaints referred to in the written warnings, the respondent led evidence of a number of other complaints about the applicant's performance.  This evidence consisted of hearsay conversations relayed by Mr McGrath and a number of letters, most written at his request, and received after the termination.  I give little weight to this evidence.  The material is only evidence as to the making of a complaint and not as to the content of the complaints.

Two former customers gave evidence of their experience with the applicant.  I give little weight to this evidence.  One witness, Mr Newsome, was clearly friends with the former manager, Mr Wright.  He indicated that he attended at the shop on a regular basis to have a drinks session with Mr Wright.  His custom dropped off after Mr Wright left and he claimed that in the period of six months that he was still a customer there the applicant was generally non-communicative with him and as a result of that he stopped attending.  He claims that she would be reading a book at the counter.

Mr Brad Martin, another customer, claimed that he had been a customer but that her attitude left much to be desired and in relation to two particular incidents she displayed a poor attitude.  He complained to Mr McGrath about this in 1994 and agreed to give evidence at Mr McGrath's request should the matter be taken any further.  Two current employees of the respondent gave evidence of the running of the shop and of some complaints made to them about the applicant.  I accept that the complaints were made as detailed by them.

Assessment Of The Witnesses

I formed a favourable impression of the applicant.  She had a reasonable recollection of the key incidents and her demeanour in the witness box impressed me.  She did, however, have a lack of recall on a number of matters including the counselling which took place in mid and late 1993.  She was heavily pressed in cross-examination in relation to her credit, but I am satisfied that at no time did she deliberately attempt to mislead the Court or be evasive.  Her evidence, in important respects as to her activities within the store, is corroborated by some of the evidence called by the respondent.

Further, I am able to be more confident in accepting her evidence by the failure of the respondent to lead evidence which matched evidence that was put to her in cross-examination or to call evidence which would contradict her.  For example, she was pressed as to the issue of unloading of trucks, yet Richard Anderson's evidence partly corroborated her version.  Another example was the use of the "f" word by Mr McGrath.  Another was an alleged incident in relation to a television at the premises.  Still another was the alleged presence of her mother at the premises on numerous occasions.

The central witness for the respondent was Mr McGrath.  I have some concern in totally accepting his evidence.  He exaggerated his evidence as to conversations with the applicant in relation to her conduct.  His evidence must be looked at with caution because of the fact that a number of matters were specifically put to the applicant in cross-examination as happening yet his own version in evidence-in-chief was different.  One example was the use of the "f" word, another was the differing versions of what the applicant's husband, Mr Woods, was supposed to have done when he arrived at the store after the termination.

On the ultimate issue of the lawfulness of the termination, it is unnecessary for me to totally accept or reject either party's evidence because I am content to rest my conclusions on the respondent's evidence.  I have no reason to doubt the other witnesses led by the respondent, but for reasons which will become apparent it is unnecessary to reach any positive conclusion on the balance of the evidence.

I should refer to Mr Newsome and Mr Martin's evidence.  Mr Newsome's evidence was direct evidence of a customer.  It related, however, to a time well prior to the period of the warnings and was vague when he was pressed on the details.  Even if I accepted it in its entirety, it would not justify the termination of the applicant's employment on any view.

I found Mr Martin's evidence unsatisfactory.  He was partisan and gratuitous in his comments about the applicant.  His credit was severely damaged by evidence from later witnesses of the respondent in relation to one particular incident.  He said he had spoken to Mr McGrath soon after the second warning and agreed to be a witness.  He took this role too far in my opinion.

Contentions Of The Parties

The respondent contended that in the face of the various complaints about the applicant's performance and attitude, it had acted as any other employer would when faced with the commercial reality that the applicant was causing damage to its business.  It was submitted that the applicant had been more than adequately counselled, been given two written warnings and had failed to respond.  Thus the respondent was entitled to terminate her employment.

The applicant on the other hand pointed to the requirements of section 170DC of the Industrial Relations Act and to the failure of the respondent to adequately specify what changes in performance and attitude were required. Specifically, the applicant referred to the fact that there was no detailed written instruction given to her to allow the applicant to respond to the matters in the two warnings, and further and most importantly, the applicant relied on the failure of the respondent to properly investigate the complaints before acting on them. It was also submitted that no proper training had been provided to the applicant for her to improve her performance.

The Requirements Of Part VI Of The Industrial Relations Act

The provisions of Part VI of the Industrial Relations Act have given employees a substantially greater measure of security of employment than they had prior to its implementation. Further, the Federal Court of Australia has indicated in Byrne -v- Australian National Airlines Limited (1994) 120 ALR 274 that the requirements of both procedural and substantive fairness which are imposed by a provision equivalent to section 170DC are to be given real content. In other words, an employer is required to accord real procedural and substantive fairness in a termination of employment rather than go through the motions.

This requirement is emphasised by section 170DC of the Act which requires that an employee have an adequate opportunity to defend himself or herself against allegations relating to work performance. It is also emphasised by the provision that the employer carries the onus of proof that it had a valid reason to terminate employment.

The Process of Termination

I find that the process of termination here leaves much to be desired, and on any view does not meet the requirements of section 170DC of the Act. The respondent admitted in cross-examination that its ultimate grievance against the applicant was her attitude rather than her performance. These two reasons are given as a basis for the termination in the affidavit filed by the respondent in these proceedings.

The verbal discussions in 1993 relating to complaints did not have any formality attached to them upon which the respondent could rely.  The first written warning, with its use of very ambiguous and subjective terms:  “surly, abrupt, bordering on rudeness” is not satisfactory.  The details of the allegations in terms of the names of the customers were not spelled out, and I find that they could have been so spelled out.  A copy was not provided to the applicant.  This in itself adds a measure of unfairness to the process.  I reject the argument that it was not possible to provide details of the actual allegations to the applicant.  For an employee with such good service yet narrow experience, it is not unreasonable to provide the detail to her to give her an opportunity to change her attitude and performance.

The final warning upon which the respondent must ultimately rely is just as unsatisfactory.  It contains three allegations; offensiveness to a female customer regarding a purchase of wine, ignoring another customer and a reduction in her level of efficiency in doing to day-to-day tasks.  On the respondent's own version of events, the first two of these complaints were not investigated by Mr McGrath.  He accepted what Mr Anderson had told him, and also what Mr Martin had told him.  He did not give the applicant an opportunity to defend herself against those allegations because of his refusal to give her details of them.

He accepted in cross-examination that he did not really mean that the applicant's manner had been offensive, but rather that her manner had offended the customer.  This is a significant difference and makes the conduct of the applicant, assuming the facts were true, less serious than it would otherwise have been.  It is clear from her own evidence that she could, if given more information, have been able to give an explanation of exculpation in relation to both of these matters.  In relation to the third aspect, the applicant's performance, again there was no evidence of any investigation.  Her explanation that restocking of the cool-room was the responsibility of the previous night shift worker was not challenged.  An adequate investigation required that those other employees be interviewed.

Upon such an interview, it is likely that that part of the warning could not be sustained.  Significantly, no evidence was led from Mr Anderson in relation to the applicant's alleged poor performance.  I further note that Mr Wright had in fact in 1990 given her a reference in glowing terms.  I also note that Mr Harrison was surprised to receive a report of a complaint about the applicant.  Mr Anderson, who must have had a reasonable appreciation of the applicant's work performance, did not criticise her in his evidence. 

The final issue in relation to the final warning is the inherent difficulty which the applicant faced in responding to the warning.  No real milestones or performance criteria were included.  No mechanism for review of her progress was provided.  She was faced with, in effect, sudden death if there were any further complaints.  Yet even that was not spelt out explicitly in the final warning.  She was given no training to improve her performance.  Another unsatisfactory feature of the final warning that it was typed up for her signature before the contents of it had been discussed with her.  She had been prejudged by the respondent and asked to sign the document.

In considering the contents of the final warning, I refer to the decision of Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Limited (1994) 126 ALR 233 where the employee had been told in a conversation in a car that:

“If you do not lift your act and get along with the girls better or perform better in your job you will probably suffer the same fate.”

Wilcox CJ then discusses the requirements of section 170DC and notes that that provision had imported into Australian labour law a fundamental component of the concept known to lawyers as natural justice or more recently procedural fairness. He said at 243 that:

“In the context of section 170DC, it is not to be treated lightly. The employee is to be given the opportunity to defend himself or herself ‘against the allegations made.’”

He then refers to the warning that was given in that case and finds it inadequate, and went on:

“For section 170DC(a) to be satisfied, it would have been necessary for the respondent to determine what aspects of Mr Nicolson's conduct or performance were such as to justify possible dismissal and to put those matters squarely to him, under circumstances where he had a fair opportunity to defend himself.”

What happened here did not comply with that.  The termination itself flowed inexorably from the receipt by the respondent of further complaints and there was no opportunity of the applicant to give her side of the story.

The inadequately investigated final warning was relied on.  In my opinion, the case of Wheeler -v- Philip Morris Limited (1989) 32 IR 323 at 349 is relevant. In that case, Gray J noted in relation to a clause in similar terms as section 170DE that an employer will not be able to rely on a flawed final warning in order to defend a termination which is claimed to be harsh, etc. He said:

“To the extent to which the dismissal depended upon the fact that the applicant was subject to the final warning given on 24 March, that warning itself was flawed.  It was inadequate procedurally, in that the applicant was not given sufficient details of the allegations against him, or sufficient opportunity to refute them if he could or to comment upon their severity.”

In my view the position that the final warning must be properly investigated is confirmed in Byrne (above) at 328, where Gray J outlined the contents of procedural fairness as follows:

“In the circumstances of this case, that obligation translated into a number of specific steps which the respondent was obliged to take.  . . . . . . . . . . Finally, it was obliged to give the appellants a fair opportunity to be heard on whether they should be dismissed, if they were to be regarded as guilty.”

The content of procedural fairness will vary with the circumstances, but in the present context, it must reflect that the applicant had had no exposure to any other employer in her working life as well as the very subjective nature of the complaints made about her.  In my opinion, it is not unreasonable in a commercial and industrial environment, even in a small business environment as here, for an employer to properly investigate complaints and to lay down a suitable remedial program where an employee's performance is in issue.

The comments in Gregory -v-Philip Morris Limited (1988) 80 ALR 455 in the decision of Wilcox and Ryan JJ at 471 are relevant. In that case the learned judges said that a clause similar to section 170DE:

“is intended to operate in a practical way in a commercial and industrial environment.”

Jenkinson J at 457 in discussing the word, “unreasonable”, in a clause equivalent to section 170DE, said it should be:

“understood in the sense which it has come to bear in many legal contexts when applied in characterisation of human conduct, that is, failing to conform to a course of conduct which a reasonable person would in the judgment of the tribunal of fact have adopted in all the circumstances.”

I find that the investigation surrounding the circumstances of the final warning was inadequate.  The applicant was not given an opportunity to respond to the allegations relating to her performance.  The warning itself was unfair to her because it did not refer to the response that she had given and it failed to give her any criteria which would allow her performance subsequent to the final warning to be objectively improved and appraised.  It was, as suggested by counsel for the applicant, in its nature oppressive.  Similar considerations apply to the earlier warning.

I do not accept, as contended strongly by the respondent's counsel, that the applicant's alleged failure to deny any of the allegations meant that the respondent was relieved of the obligation to give her details of them.  I find she sought the details and was denied them.  I do not accept that there was any admission by conduct in relation to the allegations.  She was entitled to the details and there may have been any number of reasons associated with her personality and her relations with her employer which resulted in her asking for details rather than protesting her innocence as counsel for the respondent would have had her done.

It follows from this analysis of the warning process that I find that the employer has breached the provisions of section 170DC of the Act in relation to the termination. The respondent has failed to accord procedural fairness in relation to the allegations which form the basis of the termination.

Was The Termination In Breach Of Section 170DE

The applicant contended that because the respondent conceded that the termination was because of the applicant's attitude rather than her performance, that there was no valid reason under section 170DE(1).

Although the respondent was able to suggest that there had been a number of other complaints about the applicant in addition to those referred to in the two warnings and in the final letter of termination, in my opinion the respondent has failed to discharge its onus that it had a valid reason to terminate the applicant's employment.  The shop had 100 customers per day.  A handful of complaints even over a short period of a few months is, in the Court's opinion, not a valid reason to terminate the employment of a shop assistant with this degree of seniority and service.

The requirement that a reason be valid in my view looks to the substantive nature of the reason in the context of the employer-employee relationship.  Here, the fact of complaints, and the process of warnings which I have referred to, do not in my opinion constitute a valid reason for the termination.  The actions of the applicant could hardly be said to constitute gross misconduct or an evidencing of an intention to be no longer bound by the contract of employment, to use the terms of a common law repudiation of a contract of employment.

Was The Termination Harsh, Unjust Or Unreasonable In Any Event?

Lest there be any doubt in relation to my conclusion as to the validity of the respondent's reasons for termination and because the matter was fully argued, I should indicate that in my opinion the termination, for the reasons I have outlined earlier, was unjust and unreasonable having regard to the failure to accord to the applicant both procedural and substantive fairness.

Remedy

The applicant did not seek reinstatement but sought compensation of six months wages under section 170EE of the Act. She gave evidence that she had made a number of job applications but the only earnings that she had received had been $342 in a casual position. I accept her evidence that she has made reasonable attempts to mitigate the loss occasioned by the termination of her employment.

In determining the amount of compensation, I am required on the authority of Nicolson (above), to consider whether, had the unlawful termination of employment not occurred, the employment might have lawfully terminated in any event.  In Nicolson, Wilcox CJ refers at 245 to another decision, Bostik (Australia) Pty Limited v Gorgevski (No.1) (1992) 36 FCR 20, where in the majority decision at 33 it is stated:

“Nevertheless, one of the things that would need to be weighed up in reaching a conclusion would be the possibility that the employment might have come to an end as a result of a lawful dismissal which was not harsh, unjust or unreasonable, such as it might if the company were to close its factory or engage in a policy of retrenchment of all or some of its staff.”

And at 246 of the decision, Wilcox CJ refers to two quotations that he has extracted from Bostik and said:

“They lead me to conclude that, in assessing compensation for a breach of section 170DC, it is appropriate to consider what would have been likely to occur if that breach had not occurred. It should not be assumed that the employee would have been dismissed anyway. Such an assumption ignores the rationale of procedural fairness and everyday experience that decision makers often change their minds when presented with another side of a case. It devalues section 170DC to the point of redundancy.”

In this case I am satisfied that the employment of the applicant would not have ceased by reason of a lawful termination of her employment within six months of 26 August 1994.  There is no reason to believe that she would not have responded to a proper system of warnings or counselling which gave her the opportunity to put her version of events and to know exactly what was required of her.  It follows from this conclusion that in my opinion the applicant is entitled to the maximum compensation available under the Act, namely six months wages at $442.30 per week less the earnings of $342 which she has received.

I propose to make an order in those terms for compensation in the sum of $11,157.80.

The Order Of The Court.

The order of the Court is that:

1. The termination of the applicant's employment by the respondent contravened sections 170DC and 170DE(1) of the Act;

2. The respondent within 14 days of this date pay to the applicant the sum of $11,157.80 in compensation.

I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment of Judicial Registrar Murphy as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:

Dated:  

Solicitors for the Applicant: Counsel for the Applicant:	Goddard Elliot Mr P. W. McDermott
Solicitor for the Respondent: Counsel for the Respondent:	R. V. Theobald Mr J. Healy
Dates of hearing:	29, 30 November & 9 December 1994
Date of Judgment:	12 December 1994