Milagros Wiseman v SHRM (Australia) Pty Ltd

[1995] IRCA 685

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -  PROCEDURAL FAIRNESS - poor  performance - offer to fight - whether VALID REAON- whether  in circumstances REASONABLE to warn or counsel - AWARD relevance to proceedings - HARSH UNJUST UNREASONABLE - COSTS.

Industrial Relations Act (1988), ss 170DE, 170DC, 170EA, 347.
Hotels, Motels, Wine Saloons, Catering, Accomodation, Clubs and Casino Employees (Northern Territory) Consolidated Award (1986)

A Zarb v Colgate Palmolive Pty Ltd (1993) AILR 62
Lynnette Syme v TharawalAboriginal Corporation, No NI 1467 of 1995
Robe River Iron Associates v The Australian Workers Union, WA Branch (1987) 67 WAIG 320.
Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233
Byrne v Australian Airlines (1995) 131 ALR 422
Kiel v Kurwen Walker No VI 687 of 1994, Millane JR, 27 October 1994
Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257
Canceri v Taylor (1994) 123 ALR 667
Saddington v Oliver and Others (1993) 121 ALR 601
Stone v Darwin Electric Motor Rewinds  No DI 135 of 1994, von Doussa J, (Transcript of Proceedings) Earthy v Matarazzo No DI 155 of 1994, von Doussa J, (Transcript of Proceedings)
Kent v Civil Aviation Authority of Australia No VI 1321 of 1994, 19 Septemeber 1994, Ryan JR
Foxcroft v The Ink Group No NI 477 of 1993, Wilcox CJ
Standish v University of Tasmania (1989) 28 IR 129

MILAGROS WISEMAN V SHRM (AUSTRALIA) PTY LTD.

No DI 95/1128

BEFORE: BLOKLAND JR

PLACE: DARWIN

DATE: 29 December 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
DARWIN REGISTRY

No DI95/1128

BETWEEN:

MILAGROS WISEMAN
(Applicant)

AND

SHRM (AUSTRALIA) PTY LTD
(Respondent)

THE COURT ORDERS AS FOLLOWS:

(1) The application seeking relief pursuant to Part VIA - Div 3 of the Industrial Relations Act (1988) is dismissed.
(2) The application by the respondent for costs in these proceedings is dismissed.

REASONS FOR JUDGMENT

The Application

The applicant Milagros Wiseman applies for a remedy pursuant to ss 170EA and 170EE IndustrialRelationsAct  (“the Act”).  It is alleged that the termination of the applicant’s employment breached the procedural fairness requirements of the Industrial Relations Act in that the warnings given to the applicant concerning alleged substandard performance did not accurately or fairly reflect the circumstances which they purported to. Further, it was alleged that the termination itself was in effect a summary termination in circumstances which could not be justified. It was argued on the applicant’s behalf that the stated reasons for dismissal were not valid and that the termination was harsh unjust or unreasonable within the meaning of the Act. The application is argued in the context of what was suggested to be a work environment in which the operational requirements were continually changing. For its part the respondent relies essentially on two grounds, first, poor performance incorporating lack of improvement after both oral and written warnings and second misconduct, for which dismissal was considered justified without any further warning or discussion. The applicant was given one weeks pay in lieu of notice.

Factual Background

The applicant commenced employment as a cleaner and bar attendant with the respondent at the “Rustler’s Roost” camp in October 1994.  The Court was informed that the Rustlter’s Roost was a new accomodation complex to house workers from the nearby mine. Initially the applicant’s duties comprised 5 hours cleaning per day.  She was to clean an accomodation block, a further office block (“Valdora”), and she was told that when the new bar opened, bar duties would be added to her tasks. At the commencement of her employment, the applicant shared the cleaning of the Valdora block with “Belinda”, (another employee employed by the respondent). These duties took place generally beteen 5.30 and 6.30am. After cleaning Valdora, the applicant would clean the main accomodation block rooms and showers and collect the rubbish. Many of the duties were undertaken by the applicant and Belinda together. The applicant worked a split shift and finished her morning shift at 11.30 am. She would start work again at 5.00pm and clean the offices of Henry and Walker. The respondent was engaged by Henry and Walker to run Rustler’s Roost. During this early period of employment the applicant was principally the cleaner while the other employee, Belinda was primarily involved in bar duties. The applicant was, according to her evidence, initially responsible for the cleaning of some 47 rooms. She would clean the 47 rooms which included  making the beds, cleaning the shelves and tidying the personal effects of the residents. She would also mop floors and wipe windows. The applicant’s evidence, which on this point I accept, was that initially she was not shown how the work was to be done in the sense that she was not advised of the standard of cleanliness which was expected.

Soon after the commencement of her employment, the then manager Daryl Royal advised the applicant that she should not spend so much time cleaning each individual room. In fact she was told that on most days she should spend only three minutes on each room. She was advised that she should undertake a “full service” which included changing linen only once per week.

Mr Royal gave evidence that although there were a number of rooms, the applicant was only expected to clean those rooms which were occupied  which numbered around 32-40, depending on the shift. Further, Mr Royal stated that a standard clean should take around 3-5 minutes. Although initially this sounded remarkably quick , Mr Royal was quite firm in his evidence that this type of clean was a standard accepted in the industry. He stated that employees were expected to use their discretion depending on the state of the particular room and that a full service was only expected once per week or when a resident vacated the room.

When the applicant commenced bar duties she would attend the bar at 7.00pm and she worked behind the bar between 7.30-9.00pm. She would then prepare the bar for the next evening. One of her duties at the bar was to stock the bar for the next day. Initially the applicant’s view was that her employment was running smoothly although she says there was a problem with the bar fridge which she coped with by not fully stocking the bar. 

Later in 1994, some problems were drawn to the applicant’s attention concerning the state of the rooms she was cleaning.  Mr  Royal stated in his evidence that he would counsel the applicant generally  about matters concerning her performance. He said this was often done over breakfast . At that point, to call those discussions “counselling” may be overstating the formality of the discussions, especially since those discussions did not take place privately. They were not the type of discussions which would alert the applicant in any sense that her employment was in jeopardy, nor were they so intended . I do find however, that Mr Royal took some steps to ensure that the applicant knew what was expected of her. He was clear however that he did have to discuss her performance in the bar. He stated that the applicant did not like wiping the bar and that he had received complaints about the cleanliness of the rooms. He said that some days the applicant’s cleaning was good whereas on other occasions her work was not up to standard or rooms were actuallly skipped. He had spoken to the applicant about the time she took cleaning the rooms. He stated that Belinda, the other employee, could do the same work in about “half the time”.

According to Mr Royal, the applicant’s  breaks for cigarettes were excessive. His general view was that the applicant had the capacity to complete the duties required to the relevant standard but  her attitude was such that she did not always perform accordingly.

On 13 December 1994  the applicant received the first written warning concerning performance. The applicant’s evidence was that there was no basis for the warning. Her belief seems to be that the warning may have been connected with an out of hours social trip she made to Darwin with some Henry and Walker employees, (Scott  Ferguson, Plucker and Lilim) and that pressure was brought upon the respondent to curtail such trips due to the subsequent poor performance or temporary abscence of the Henry and Walker employees. As I understand her evidence,  the applicant thought she was being warned concerning the non-performance of  her duties in total on the relevant day.  She essentially was of the view that aspects of her work  (particularly the cleaning) could be undertaken at any time on the Sunday without any adverse affect to the operation of Rustlers Roost. Mr Royal confirmed in part that there had been some complaint from Henry and Walker to him and that he therefore had to “follow suit”. He did not believe the applicant had carried out her full duties on the day in question. He stated however that the complaint he had received in relation to the applicant was to the effect that she had to be woken up to open the bar.

Mr Royal explained that the applicant was very offended when he confronted her with the particular allegations, that she simply stated she had done her job and told Mr Royal to go away. The applicant was given the written warning. Mr Royal’s evidence was that he asked the applicant to sign the warning and he states that she refused to sign it. The applicant however stated in evidence that she did sign it, that she said words to the effect of  “sure, I’ll sign it”.

The written warning is before the Court and is not signed by the applicant. Mr Royal was cross-examined extensively about this but maintains that the applicant refused to sign it.  I accept the evidence of Mr Royal  in relation to this. Although nothing major turns on the fact of the applicant signing or not signing the warning, it does indicate to me that the applicant has, at the least, a poor recollection of events, especially when she is upset or angry. The evidence on this matter is significant in as much as it reflects on the credit of the applicant. It also tends to generally support the respondent’s case  which points to the applicant’s lack of cooperation on a number of occasions throughout the employment relationship.

Mr Hitchcock for the applicant made quite effective use of the first warning in the cross-examination of Mr Royal as the first warning clearly states the applicant was warned for “Not doing her job on Sunday the 11/12/94 in the kitchen.” This did not accord  with Mr Royal’s evidence concerning the incident in question, however it must be remembered that his belief was that the applicant was not available to perform her duties at the appropriate times. Had the applicant refused to sign because of some misgivings about the facts alleged in the warning, some substance might be given to her case on this point. Curiously, the opposite is the case in that she says she signed it when it is clear that she did not. Mr Royal gave evidence that the applicant challenged him to sack her. It appears that during the time of his management, Mr Royal had what could be described as a casual attitude to running Rusters Roost . He said himself  he liked to think he ran the operation on a “team” approach. He did not in any way appear to be unecessarily adverse towards the applicant, indeed he appears to have been on friendly terms with her in the early part of the employment relationship. 

At one point in his evidence Mr Royal did make reference in a joking manner to the fact that he had not seen work so poorly performed since “The boys in PNG”. Mr Hitchcock attempted to assert that this comment may be indicative of lack of cultural sensitivity in dealing with the applicant who herslef is not born in Australia.  On one view the comment could be seen as a racially based comment and  I can understand Mr Hitchcock raisng the issue, however, I do not think  any particular conclusion can be drawn against Mr Royal in his particular dealings with the applicant. Mr Royal left Rustler’s Roost March 30 1995.Belinda, (who was Mr Royal’s partner) also left on that date.

Mr Williams was the next manager to be employed at Rustlers Roost. At this time, the applicant states the site was increasing in size and hence her workload significantly increased. She gave evidence that rooms were added, in fact some ten dongas were added. A trailer was also added for a manager and Valdora was enlarged. I accept the applicant’s evidence that her work load increased. She could no longer share duties with Belinda, however, a new employee she referred to as Bart was employed to take over some of the duties. The applicant’s view of her situation was that she was undertaking all of her duties alone. Bart was not performing many of the duties which had previously been performed by Belinda. He was not, for example, doing as much cleaning as Belinda, in particular he was not cleaning the ablutions block.

During bar duties on  12 May 1995, the applicant received the second written warning. In that warning it was stated that the applicant’s work was unsatisfactory in that the rooms were not being cleaned properly and the bar was kept in an unsatisfactory condition. Reasonably detailed notes are attached to the second warning which is before the Court. The applicant stated that she raised the issue of  the increase of her work with Mr Williams. The increase in work expected was in turn occasioned by the increase of  people coming to the site. She stated that Mr Williams said he wanted a hotel service. She also stated in relation to the rooms and the bar which Mr Williams showed her as examples of poor performance that she explained the room in question had just been left by someone and that it did not need to be cleaned immediately. She also explained to Mr Williams that the bar would generally be  cleaned in the mornings. The change in the workload was a substantial part of the applicant’s case. I have considered this carefully.

While I accept that the applicant’s work load did increase,  I am also of the view that this aspect is exaggerated by the applicant. In coming to this conclusion I have had regard to the evidence of Noelene Reese who has  performed many of the duties which the applicant had previously performed . Further, Ms Reese worked for some time under the third manager, Mr Mazalo. Ms Reese was initially employed as a casual cleaner, then permanent cleaner and at the time of  hearing was employed as the cook. She confirmed that the standard for cleaning rooms of this type was 3 1/2 minutes on a single room and 5 minutes for a suite. She said she had previously worked at other mine sites, for example Cosmo Howlie, and on other sites found the work significantly more demanding than that required at Rustlers Roost. At her time of arriving at Rustlers Roost there were 62 rooms comprising 55 singles and 7 managers rooms. She stated she would still clean the rooms of the men who were on breaks and she would check every room. In a standard clean she would make beds, sweep, and empty rubbish bins. She would only mop if it was necessary and did not pick up beer cans or empty ashtrays save for the manager’s room. She would only complete the full service once per week. Taking account of the fluctuating numbers of occupants, Ms Reese said on average there were 45 rooms to clean out of the 62 actual rooms. She said she did not find it arduous. She said she also cleaned the crib room, crusher crib room and bar room. Ms Reese did not clean Valdora as another casual cleaner was employed to undertake the cleaning of Valdora. This must however be balanced against the fact that at virtually each point the applicant also had some assistance with her duties from other staff.  Over the relevant period, the applicant was not always required to clean Valdora. The applicant would not concede  in evidence than the average number of rooms she had to clean was less than the total number of rooms in the complex. This leads me to the conclusion that the applicant has not always been realistic about the work load involved. I have concluded on the evidence that the changes in the operation of Rustlers Roost were not so great as to be a significant contributiong factor to the applicant’s performance problems.

The third manager and the manager who effected the termination of the applicant’s employment was Mr Mazalo.  This was the first time Mr Mazalo had administered a cleaning contract. Mr Mazalo was  told during the hand-over period that the previous managers had had problems with the applicant. Although initially it might be thought that the knowledge of previous complaints against the applicant might prejudice Mr Mazalo against her, clearly Mr Mazalo was entitled to the benefit of those  views and after hearing him give evidence, I do not think he began his period as a manager at Rustlers Roost with any particular view which was adverse to the applicant.

Mr Mazalo’s girlfriend Colleen Dellow was employed at the same time as Mr Mazalo. Ms Dello was employed as a cook and cleaner while the applicant continued to be employed as a cleaner. Mr Mazalo gave evidence that he had to speak to the applicant about her punctuality. The applicant, on the other hand substantially denies this was a problem with her performance but states in any case that a number of her duties could be performed at any stage during the day without any adverse consequences to the running of Rustler’s Roost. Mr Mazalo gave evidence that his discussions about punctuality were largely ignored or were met with attitudes of disgust and “how dare you!” on the part of the applicant. Mr Mazalo said there was never an apology expressed on the part of the applicant. As he was new to Rustlers Roost, Mr Mazalo said he did not give the applicant a warning at that stage, however, he did notify his superiors and noted the incident in his diary.

Mr Mazalo employed a casual employee to assist with cleaning duties for  five hours per day. He made some changes in that he split up much of the work between the applicant and the casual cleaner. The applicant was not happy with many of the changes as at times it was still her duty to clean Valdora. Further, the employees were no longer completing tasks together, but the tasks were split up between them. This was considered at various times by the respondents’ managers to be the more efficient operation.

Mr Mazalo gave the applicant her third written warning on June 13 1995. In evidence he said this was because the applicant was not working her scheduled hours. He gave her a written warning concerning her failure to complete her bar duties during her shift. This included the bar not being stocked up, the beer consequently not being cold and the cigarettes not being properly stocked. Mr Mazalo was also concerned about the applicant failing to keep the bar clean. The previous manager experienced similar problems with the applicant. When he gave the warning to the applicant he was met with an extremely hostile response. He says in evidence the applicant stated “this is fucking bull shit” upon receipt of the warning and that the applicant indicated she would have to take the rest of the day off.  She also challenged Mr Mazalo to dismiss her. The applicant denies the vehemence of her response, however I accept substantially the evidence of Mr Mazalo on the point. It appears to me from the totality of the evidence, the intricacies of which cannot be restated here, that the applicant loses her temper easily and then has difficulty recalling with accuracy what in fact occurred. In saying this I do not lose sight of the context that it is understandable for people to feel emotionally upset when poor performance is being discussed with them. In the present case however,  the applicant made it very difficult for Mr Mazalo to communicate effectively with her. The issue of the re-stocking of the bar was an ongoing issue throughout the employment relationship. The applicant claims the bar fridge was not working satisfactorily and to make allowance for this she did not fully stock the bar. That may have been the case for some period of time however the respondent did arrange to have the bar fridge fixed at which point the applicant was instructed to fill the fridge. It appears she consistently declined to do this in spite of  the instruction being given a number of times.

The applicant complained to various managers about the regular changes to rosters at Rustlers Roost. She has also given evidence about this point. I accept that some of these changes  may in some respects have been difficult to cope with, however, a number of the changes were undertaken to incorporate the concerns of the applicant or to improve the running of the Rustlers Roost. On 12 July 1995 the applicant told Mr Mazalo that she did not have enough time to complete her duties given there were some five new rooms to clean. He told her that he would look at the roster again. He told her he would change the rosters again at which point the applicant stated she would not clean Valdora. Mr Mazalo told the applicant that if she could not cope with the cleaning of single rooms she may have to clean Valdora offices. Shortly after this discussion (which took place at the ablutions block),  Mr Mazalo said the applicant stormed into the kitchen swearing and being aggressive generally towards Ms Dellow, that she challenged Ms Dellow to a fight on a number of occasions and that there was an aggressive exachange between Ms Dellow and the applicant.

At one point Ms Dellow was about to take the applicant up on her offer but Mr Mazalo stopped her. Mr Mazalo then steered the applicant out of the kitchen. Mr Mazalo phoned his superiors who stated that Ms Wiseman’s employment should be terminated. Mr Mazalo then advised the applicant accordingly.
The applicant’s version is that in discussing the changes to the roster with Mr Mazalo, she attempted to point to the rosters in the kitchen, that she accidentally ripped Ms Dellow’s roster  (although the applicant believed she was looking at her own roster), that Ms Dellow grabbed the applicant by the shoulder and that Ms Dellow was essentially the aggressor and also was “acting like a manager”. The applicant denies asking for a fight. Of the two versions I accept the substance of Mr Mazalo’s version. He was very clear and certain in his evidence in both examination in cheif and cross examination. He viewed the applicant on her way through to the kitchen. Given she was making angry gestures, he followed her into the kitchen and saw the whole incident. The applicant, on the other hand, does not recollect events well when she loses her temper. This in my view has been evident during the hearing of this matter. Whilst I do not by any means totally disregard the applicant’s evidence, in a number of key aspects where it conflicts with the respondents’ witnesses, I prefer the evidence of the witnesses for the respondent for the reasons which I have indicated.

Valid Reason(s)

The respondent bears the onus of proving there existed at the time of the termination a valid reason to terminate the applicant’s employment: s 170DE. In this case there is a deal of evidence pointing to issues of poor work performance. Particularly in the area of cleaning, the required standard may be difficult to articulate which is why demonstrations of what is required, counselling and warnings may become crucuial (see “Proceural Fairness” below). The level of performance led to warnings being given by three separate managers over a six month period. Sub-standard cleaning over a period of time in this context constitutes on the face of it a valid reason connected with the employee’s capacity. Further, the failure continually to re-stock the bar fridge and to refuse to carry out certain other duties on the face of it constitute valid reasons. The incident involving the “asking out” of another employee in such an aggressive manner on the facts as I have found them constitutes a valid reason for dismissal, especially in these circumstances where the applicant is the initiator. If this were an isolated incident I might find otherwise but this was highly threatening conduct after a series of discussions attempting to resolve problems with rosters and work loads. Fighting at work has been held to amount to misconduct justifying instant dismissal: A Zarb v Colgate Palmolive Pty Ltd (1993) AILR 62, Robe River Iron Associates v The Australian Workers Union, WA Branch (1987) 67 WAIG 320. Here, I do not consider the applicant to have been under such clear provocation to justify her actions, particularly against another employee. Further, if the manager Mr Mazalo had not intervened the incident would have escalated. I know the incident here did not end in a fight but it was a very aggressive episode coming as it did on the heels of  a discussion about rosters. The other employee was observed to be in a frightened condition. I not also the comments of Patch JR in Lynnette Syme v TharawalAboriginal Corporation, No NI 1467 of 1995 to the effect that the valid reason of the  termination of employment may be the accumulation of several factors, in which case it is necessary to examine each of the employer’s criticisms and see if they can be proved. This case substantially involves the effect of an accumulation of  a variety of factors of which the threatening behaviour was the last act. 

Procedural Fairness

An employer must not terminate an employee’s employment unless the employee has been given the opportunity to defend himself or herself against the allegations made or the employer could not reasonably be expected to give the employee that opportunity: s 170DC. It is generally accepted that the essence of the procedural fairness requirements of the Act are as stated by Wilcox CJ in Nicholson v Heaven and Earth Gallery Pty Ltd (1994)126 ALR 233. That case makes it clear that what is required may vary from case to case. In this case, particular care is required to bring the allegations of sub-standard performance to the attention of the applicant in order to give her an opportunity to respond or to improve. In the very early part of the employment relationship I do not consider that the applicant was properly instructed on the time she was to devote to cleaning the mens quarters, nor the differentiation between a standard and full sevice. This was rectified in a matter of days. Each of the three managers counselled the applicant about her cleaning. At least two of the managers physically showed the applicant what was required. As well as the three written warnings produced in Court, the applicant was spoken to individually be each of the managers about her poor performance in the bar. Further, on some occasions when Mr Mazalo attempted to speak to the applicant about changes in duties and how they were to be performed, he was met with an extremely uncooperative or even hostile reaction. In such circumstances the respondent may well claim some immunity from what would usually be considered full compliance with procedural fairness on the basis that the circumstances were such that it could not reasonably be expected to give the employee the opportunity to respond or explain. On a number of occasions there was evidence that the applicant walked away from Mr Mazalo, challenged him (and other managers) to dismiss her and generally made it difficult for them to approach her.

In the circumstances, I consider that the variety of warnings have been sufficient to bring the criticisms of performance to the attention of the applicant. The incident involving the offer to fight was yet another occasion on which the applicant made it virtually impossible for the respondent to counsel or in any way seek a further explanation. In all  the circumstances I find that procedural fairness was accorded to the applicant.

Harsh Unjust or Unreasonable

I now consider whether or not the termination, although made on valid grounds was nevertheles harsh unjust or unreasonable within the meaning of the Act. The applicant was employed by the respondent for some nine months. Apart from the initial period when Mr Royal was managing the Rustlers Roost, the employment relationship was fraught with difficulties. They were not all of the applicant’s making in the sense that the quick succession of managers, the expansion of the complex and the changes in roster arrangements were stress factors in the employment relationship. The various changes were not however as significant to suggest that the applicant’s subsequent treatment was harsh unjust or unreasonable. Some of the expansion of duties when explained objectively were not as great as suggested by the applicant. Evidence was given by Mr Mazalo that on one occasion he abstained from taking formal action against the applicant beacause he was new in the job. I have already noted the evidence of Ms Reese who has undertaken similar duties to those which were required of the applicant.

There is a possibility of cultural problems and misunderstandings as suggested by Mr Hitchcock, however even on close examination of the evidence it is difficult to find where precisely such misunderstandings have taken place. The applicant’s command of English in the witness box appeared to be strong. I agree that shrugging of shoulders and light-hearted apologies in the face of allegations concerning performance may have elements of a cultural response to them, however, these were a very minor part of the respondent’s case. The swearing which occured was in English and the final aggression, directed as it was towards another employee is difficult to fathom on any viewpoint, even having regard to possible misunderstandings. I have also considered whether or not the applicant was treated unfairly due to the final incident taking place with an employee who was at the same time the girlfriend of  Mr Mazalo. I do not think Mr Mazalo was exhibiting any favouritism towards his girlfriend in these circumstances. Clearly, the applicant was the aggressor, although Mr Mazalo was aware of the possibility of a  response in kind on the part of Ms Dellow. He spoke to her in a stern manner but I think he was fair in his characterisation as the applicant being the aggressor.

The operation at Rustlers Roost is a small operation in the sense that the respondent employs only three to five employees at any one time. Mr Hitchcock has suggested that a breach of the Hotels, Motels, Wine Saloons, Catering, Accomodation, Clubs and casino Employees (Northern Territory) Consolidated Award , clause 49 “Introduction of Change” may have occurred. As a result of the decision Byrne v Australian Airlines (1995) 131 ALR 422, the Court cannot ofcourse readily treat award conditions as being incorporated into the employment contract. Until there is some authority to the contrary, I consider it to be permissible for the Court to consider Awards as they reflect community expectations or standards of reasonableness when considering “harsh, unjust or unreasonable”. On this basis I have looked at the Award provisions on “Introduction of Change” but I consider that the changes at Rustlers Roost during the relevant time were not of such magnitude to warrant the procedure under the Award being invoked. If I am wrong on this particular point the Union in any case has a remedy elsewhere. The ultimate question is whether a reasonable employer would have terminated the applicant’s employment in the circumstances. I think a reasonable employer would have proceeded to terminate her employment. Having viewed the applicant’s position from a number of different perspectives I do not find the termination to be harsh unjust or unreasonable. I therefore dismiss the application brought by the applicant.

Costs

At the conclusion of the hearing the respondent’s representative Mr Saundry applied for costs in the event of the applicant being unsuccessful. The basis was said to be that the application was without reasonable cause within the meaning of s 347. It is not alleged the proceedings were commenced vexatiously. Clearly the circumstances in which costs are awarded in proceedings such as these are exceptional. The limitations on the power to award costs between the parties in applications under the Act, (as distinct from cases where third parties are involved eg No VI 687 of 1994, Kiel v Kurwen Walker, Millane JR, 27 October 1994), are discussed in a variety of authorities. I have consulted the following authorities for the purpose of this decision: Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257; Canceri v Taylor (1994) 123 ALR 667; Saddington v Oliver and Others (1993) 121 ALR 601; Stone v Darwin Electric Motor Rewinds  No DI 135 of 1994, von Doussa J, (Transcript of Proceedings), 27 July 1994; Earthy v Matarazzo No DI 155 of 1994, von Doussa J, (Transcript of Proceedings), 31 August 1994; Kent v Civil Aviation Authority of Australia No VI 1321 of 1994, 19 Septemeber 1994, Ryan JR. In Kanan v Australia and Postal Telecommunications Union, Wilcox J held that to find the proceedings were instituted “without reasonable cause”  required the Court to decide whether:

“[U]pon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant’s favour of               one or more arguable points of law, it is inappropriate to stigmatise the proceeding as “without     reasonable cause”. But where, on the applicant’s own version of the facts, it is clear that the        proceedings must fail, it may properly be said that the proceeding lacks reasonable cause.”

This formulation was approved in  Canceri v Taylor (1994) 123 ALR 667 and discussed in Saddington v Oliver and Others (1993) 121 ALR 601. In Foxcroft v The Ink Group No NI 477 of 1993, Wilcox CJ said he adhered to the above quotation in Kanan and added the observation that in Standish v University of Tasmania (1989) 28 IR 129, Lockhart J drew a distinction between “an argument simply proving to be unsuccessful” and an argument being misconceived. Of this distinction Wilcox CJ said that costs may flow in the case of an action being misconceived but not in the case of one proving to be unsuccessful.

The effect of the principles set out in the above authorities indicate it would be an error for me to characterise these proceedings as proceedings “without reasonable cause”. The applicant has her own views on the facts surrounding the termination. I have made findings of fact which in part, contradict her account. That is not enough for me to characterise the proceedings as “without reasonable cause”. On the applicant’s own version of facts, it is not clear at all that her action would have failed.  In a case such a this, the applicant can only rely on her own recollections and assessment of the circumstances. If at the end of the hearing they are not fully accepted, it does not mean the action was without reasonable cause. Accordingly I dismiss the application for costs.

THE COURT ORDERS:

(1) That the application seeking relief pursuant to Part VIA - Div 3 of the Industrial Relations Act is dismissed.

(2) That the application for cost is dismissed.

I certify that this and the preceding ten (10) pages are a true copy of the reasons
 for judgment of Judicial Registrar Blokland.

Dated:

Mr Hitchcock from the Australian Liquor Hospitality & Miscellaneous Workers Union
appeared for the applicant.
Mr Saundry from the Chamber of Commerce appeared fro the respondent.