Misheva v Spicers Paper Ltd t/as "Spicers Paper Australia", "Spicers Paper Stationery", "Spicers Paper" & "Spicers Telelink"

FOR GENERAL DISTRIBUTION

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

TERMINATION OF EMPLOYMENT - alleged unlawful termination of employment - VALID REASON - not satisfied valid reason for termination of employment established after finding made of contract of employment concluded between applicant and second respondent - EMPLOYMENT CONTRACT – Administrative arrangements made by first respondent with second respondent to pay wages of applicant - EMPLOYMENT RELATIONSHIP – whether employee-employer relationship established between applicant and first respondent – UNLAWFUL TERMINATION – Claim of Termination of Employment on grounds of race and sex not sustained – Employment unlawfully terminated for recourse to competent Administrative Authorities over wage claim - CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND - No opportunity to respond to allegation of satirical invective directed at Manager - TERMINATION PAY - Award for failure to give required Period of Notice - PRACTICE AND PROCEDURE – Listing Judicial Registrar - Attempts made to settle case before allocation for hearing not sufficient to require disqualification from hearing in circumstances of case - SUMMARY DISMISSAL - Applicant terminated for abusive language not amounting to serious misconduct – applicant complained to administrative authority seeking increased rate of pay - REINSTATEMENT - Impractical to reinstate applicant – applicant suggests unable to work with former supervisor - applicant still bears a sense of injustice which will make reinstatement impracticable - not convinced physically fit to continue in position – DAMAGES - COMPENSATION – Damages assessed for Distress – Non economic loss caused by unlawful termination – COSTS – question of costs adjourned for further argument

Workplace Relations Act (Cth) 1996 (formerly known as Industrial Relations Act 1988) ss 170DB, 170DC, 170DE(1) 170DF(1)(e), 170DF(1)(f), 170EAA(1), 247(1)

Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371
Gibson v Bostik Pty Ltd (1995) 60 IR 1
Perrin v Des Taylor Pty Ltd (1994) 58 IR 254 at 256-7
Liddell v Lembke (1994) IRCR 466 at page 487
Burazin v The Blacktown City Guardian Pty Ltd (1995)(unreported IRCA (Full Court) decision No.606/96 dated 13 December 1996)
May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112

Qantas Airways Ltd v Christie (1998) HCA 18

Raymond Drury v BHP Refractories Pty Ltd (1995) 62 IR 467

ELENA MISHEVA V SPICERS PAPER LIMITED TRADING AS
“SPICERS PAPER AUSTRALIA”
“SPICERS STATIONERY”,
“SPICERS PAPER” &
“SPICERS TELELINK”

NI 1420 OF 1996

MCILWAINE JR
SYDNEY

9 October 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NI 1420 of 1996

BETWEEN:

ELENA MISHEVA
APPLICANT

AND:

SPICERS PAPER LIMITED TRADING AS
“SPICERS PAPER AUSTRALIA”,
“SPICERS STATIONERY”,
“SPICERS PAPER” &
“SPICERS TELELINK”
FIRST RESPONDENT

AND ADIA PERSONNEL PTY LTD
(ACN 006 253 336)
SECOND RESPONDENT

JUDICIAL REGISTRAR:

MCILWAINE

DATE OF ORDER:

9 OCTOBER 1998

WHERE MADE:

SYDNEY

MINUTES OF ORDER

The Court declares:

The applicant was an employee of the second Respondent between 18 September 1995 and 15 November 1995.

The applicant was in an employment relationship with the first Respondent from 18 September 1995 to 15 November 1995.

The second Respondent has contravened section 170 DB of the act in that wages for one week were not paid in lieu of the period of notice required by the Act.

The second Respondent has contravened Section 170 DC of the Act.

The Respondent has contravened Section 170 DE(1) of the Act in that it did not have a valid reason for the termination of the employment of the Applicant on 15 November 1995.

It is impractical to reinstate the Applicant in any position with the first or second Respondents.

It is appropriate to award compensation to the Applicant in the sum of seven thousand four hundred and ten dollars ($7,410.00).

The Court orders:

The second Respondent pay to the applicant within seven days the amount of two hundred and eighty-five dollars ($285.00).

The second Respondent pay to the applicant within twenty-one days the amount of seven thousand four hundred and ten dollars ($7,410.00).

Any sum paid within twenty one days to the Australian Taxation Office, which the second Respondent is obliged to pay on behalf of the applicant or which can lawfully be made on her account, in respect of the sums ordered in paragraphs 8 & 9 shall be pro tanto satisfaction of the obligations of the second Respondent under Orders 8 & 9.

The question as to whether costs are to be payable is reserved for further consideration until 10.00 am on 15 October 1998 provided notice is received by the court and served on other parties by 4.00 pm on 14 October 1998 of any application by the first Respondent for costs.

If an application for costs is not made by 4.00 pm on 14 October 1998 then a further order will be made: “Each party to meet their own costs.”

Kate Benson

Legal Assistant to
Judicial Registrar McIlwaine

INDUSTRIAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NI 96/1420

BETWEEN:

ELENA MISHEVA
APPLICANT

AND:

SPICERS PAPER LIMITED TRADING AS
“SPICERS PAPER AUSTRALIA”,
“SPICERS STATIONERY”,
“SPICERS PAPER” &
“SPICERS TELELINK”

FIRST RESPONDENT

AND ADIA PERSONEL PTY LTD
SECOND RESPONDENT
(ACN 006 253 336)

JUDICIAL REGISTRAR:

MCILWAINE

DATE:

9 OCTOBER 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

APPLICATION

This is an application by Elena Misheva, (“the applicant”), claiming unlawful termination of her employment under Division 3 Part VIA of the Industrial Relations Act 1988, (“the Act”), now known as the Workplace Relations Act, 1996, against her alleged former employer. The applicant described the employers name as “Spicers Paper Australia” in her application.

The applicant, was 36 years of age, at the time of her dismissal and in her claim records the work performed for her alleged employer as “Telesales and Marketing”. The remedy sought by the applicant in her application was originally compensation. This was amended at the start of the hearing to include a claim for reinstatement.

The application was apparently received by the Australian Industrial Relations Commission on 13 March 1996. The Court has a certificate issued by Senior Deputy President Marsh of the Australian Industrial Relations Commission at Sydney dated 22 April 1996 and filed in the Registry of the Court on 23 April 1996 in the following terms:

“AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act m1988
s.170ED issue of certificate

Elena Misheva

And
Spicers Paper Ltd
(U No. 21189 of 1996)

SENIOR DEPUTY PRESIDENT MARSH SYDNEY, 22 APRIL 1996

CERTIFICATE

In accordance with subsection 170ED(1) of the Industrial Relations Act 1988, the Commission hereby certifies:
(i) “ that it has been unable to settle this matter by conciliation,” within a reasonable period, and
(ii) that the parties in this matter, having been invited to elect to have the matter dealt with by consent arbitration, have not so elected.”
BY THE COMMISSION:
F.J. NEAL
SENIOR DEPUTY PRESIDENT
(Seal of NSW Industrial Relations Commission)”

There was no objection to the certificate made by either party. In addition, no issue was raised before the court as to the timing of the lodgment of the application or the extent of the coverage of the certificate in respect of the parties. I therefore find the matter is properly before the Court.

INTERLOCUTORY ISSUES

A difficulty has arisen in these proceedings as to who are the correct parties to the claim. Originally Ms Pauline Grigg Human Resources Manager declared in the Notice of Employer’s Appearance dated 19 March 1996, and filed in the Registry of the Australian Industrial Relations Commission that “Spicers Paper Ltd,” was not the true employer of the applicant. Ms Grigg specified ‘ADIA Centacom Hurstville” as the true employer. Where requested on that form to supply the “Reasons for termination,” the following appears:

“Reasons for termination
15. Brief Summary of reason/s given for termination (or attached). “This does not apply as the applicant was on a temporary assignment from an employment agency – “Adia Centacom.”

Declaration

*Employer *Solicitor *Employer organisation

All the facts in this notice
are correct and complete
to the best of my knowledge and belief. Signature Date

Name Position”

Ms Grigg then proceeded to tick employer as the basis for her declaration of correctness and completeness of the application. Thus it is readily apparent that there is an inconsistency between the Declaration and the remarks made under the heading “Reason for Termination.” Spicers Paper Limited will be referred to as Spicers Paper whilst the other entities will be referred to by the particular trading name used in the evidence.

A Notice of Employers Appearance was filed in the registry of the court on 16 May 1996 by the Printing Industries Association of Australia on behalf of Spicers Paper Australia. It maintained that this company was the true employer by ticking “yes” on the form. The document was signed pursuant to s. 170JEA of the Industrial Relations Act, 1988 by an officer of an employer organisation of which the respondent was a member. It subsequently emerged that the applicant physically worked for a joint venture organisation formed by “Spicers Paper” and “Spicers Stationery” entitled “Spicers Telelink.”

The applicant commenced her duties on 18th September 1995, at the premises of Spicers Paper and ceased working on 15 November 1995.

A directions hearing was set down for May 1996 but was adjourned until 17 June 1996 at the request of the applicant because she was convalescing from major surgery. At that hearing the applicant appeared in person the respondent was represented and Mr Britt sought to intervene in the proceedings. The District Registrar conducted the hearing and made directions:

“Any motion seeking to join additional parties should be made returnable at trial . Parties to exchange relevant and requested documents within one month in writing. Onus on both parties to provide relevant documentation to other parties. Parties liberty to apply for further directions - 3 days notice.”

The trial was listed by him for 6 September 1996 as a one day matter.
At a hearing conducted by a Judicial Registrar on 6 September 1996 the following orders were made:-

That leave be given to the applicant to move instanter that Adia Personnel Pty Ltd (ACN 006 253 336) be joined as the second respondent to the proceedings.
That Adia Personnel Pty Ltd (ACN 006 253 336) be joined as second respondent to the proceedings.
That the trial not proceed today and be listed for callover before the District Registrar at 9.30 am on Friday, 13 September, 1996.
That if possible, the matter be given priority, and listed for trial this year, on the basis that the applicant seeks reinstatement and the matter was not reached today.

At a further directions hearing before the District Registrar the matter was listed for a two day hearing on 22 & 23 January 1997. The trial was heard over three days commencing on 22 January 1997. There was then a period allowed for written submissions followed by oral argument over about a half day.

After the hearing commenced I became aware of a note made on the file by the Judicial Registrar on 6 September 1995 to the effect that I should not hear the matter. It is regrettable that by agreement between counsel this notation was not drawn to my attention before the trial commenced. There is no record that I engaged in a mediation between the parties. It appears that when calling the matter over as Listing Judicial Registrar on 6 September 1996 I made remarks to the parties about the advisability of settling the issues between them. On the morning of the hearing Counsel had agreed between themselves that there would be no objection made to my hearing the matter. As the trial had been commenced and no other Judicial Registrar was apparently available I determined to continue the hearing. The circumstances surrounding this issue are fully set out in pages 47-49 of the transcript.

EVIDENCE OF THE APPLICANT

The applicant had been running her own company for about five years and sold her share to her partner. The applicant went back to finish a university course and obtained consultancy work at a food company. As a result of a back injury sustained in a fall at a shopping complex in the Australian Capital Territory the applicant had been unable to continue working and had resigned her position as corporate account manager with the Food Company on 11 July 1995. The applicant had been unemployed since that time although she continued with her external studies in Slavonic Languages at Macquarie University during 1995.

The applicant approached the Second Respondent (“Adia Centacom”) as she was interested in obtaining part-time employment in national sales and marketing and she believed from consulting the “Yellow Pages” telephone directory that it provided specialist employment services which would assist her in that regard. On or about 8 September 1995, the applicant attended the premises of Adia Centacom for that reason.There the applicant was interviewed by a Personnel Consultant employed by Adia Centacom and completed various forms and tests as part of an assessment procedure. Subsequently the Personnel Consultant said to the Applicant: “I have found something that may suit you. It’s at Spicers. I’ve called them up and they would like to see you now.” The applicant did not agree to attend the premises of Spicers Telelink immediately, but she agreed to be interviewed early the following week.

On or about 12 September 1996, the applicant was interviewed by Mr Chris Dass and Mr Imad Dannaoui on behalf of Spicers Telelink. During this interview, the applicant was offered employment at that company. According to the applicant she was informed:

“Everybody has started this way – through ADIA. We will train you and then after about 6 months you’ll be automatically made permanent. Can you start today?”

The applicant did not agree to start immediately but commenced working at Spicer Telelink on 18 September 1995 as part of the Telesales group/team headed by Mr Chris Dass, and was allocated the territory covered by Queensland, South Australia and Western Australia. The job of the applicant was to market the paper and stationery supplied by the Spicers Paper and Spicers Stationery organisations, complete the sales contract and then to oversee delivery of the paper and other goods. The applicant claims she did not receive any training. The applicant said she was told that computer training was to be offered to staff to attend in the evenings at their own expense. No such training was actually provided and the applicant claimed that she received no other training. This claim of receiving no training is not supportable in view of the evidence of Mr Dannaoui of his on going support and instruction while he was there. During her employment the applicant received, by way of wages, $285 per week paid by direct deposit into an account which she was required to open at the St George Bank.

The Telesales team headed by Mr Chris Dass held meetings each Monday at which the team’s performance against the group monthly statistical targets were discussed. The applicant testified that at one meeting, staff were advised that they would receive a bonus of $1,000, paid in gift vouchers, if 50 pallets of paper were sold. Subsequently the applicant received a large order of at least 50 pallets of paper but the bonus was denied to the Applicant. The explanation given by Mr Dass the Manager of Spicers Telelink was that the sale was not of the specified type of paper.
There was also discussion about a food basket being provided as a bonus.

The applicant testified that Mr Dass was of Greek origin or descent and that he often referred to her as being Macedonian. The behaviour of Mr Dass towards the applicant was believed by her to be in a manner which she regarded as unnecessarily harassing. Examples of these incidents were given by her:-

§ On an occasion when the applicant bought pastries and cakes to work, Mr Dass asked if the cakes/or pastries were Macedonian.

§ Although the applicant arrived after and left before all other staff, Mr Chris Dass often (about 6 or 7 times) ordered the applicant to move her car without any explanation.

§ Mr Chris Dass often stood at the Applicant’s desk for prolonged periods listening to her telephone conversations with clients.

§ The applicant was excluded from attending two dinners, (organised by Spicers Telelink as a reward for good Telesales results) when they were scheduled by Mr Chris Dass immediately before the university examinations of the applicant.

§ The applicant was similarly excluded from a weekend event at Port Stephens organised by another senior employee of Spicers Australia.

§ The applicant was treated less favourably in relation to terms and conditions of employment than another similarly engaged employee, Ms Vicki Kontalis, who is said to be of Greek origin or descent.

In or about late October/early November 1995, the applicant was advised by Mr Chris Dass and Mr Imad Dannaoui that her work performance had been the subject of formal assessment by them and her performance was regarded very favourably.
The applicant testified that she was told by Mr Dass that Mr Imad Dannaoui was leaving his employment with Spicers and he said: “When Imad leaves, the job is yours.”

On or about 2.00 pm on 15 November 1995, the applicant was talking to a client on the telephone. Mr Chris Dass stood at the applicant’s desk throughout this telephone conversation. The applicant testified that when she concluded the telephone call, Mr Chris Dass indicated that he wanted to speak with her in his office. The applicant said she followed Mr Chris Dass into his office where the following conversation took place:

DASS: “You have an attitude problem. I want you to leave.”
APPLICANT: “Do you want me to finish up today?”
DASS: “No, leave the building now.”

The applicant immediately left the premises of Spicers Telelink. The fact that she did so is supported by the evidence of Ms Leah Quinn.

The applicant had previously used the services of specialist employment agencies other than Adia Centacom in connection with obtaining employment. After the employment of the applicant with Spicers Telelink was terminated, she attended the premises of Kelly Services (Australia) Pty Ltd to look for other work and was advised by an employee of Kelly Services that they were undertaking a “promotional drive” for Citibank and was told to contact a person at Citibank. When the applicant made further enquiries at a later time, she was told that she would not be employed by Citibank as they had “received a bad report from Mr Chris Dass.”

The applicant had not been successful in obtaining other employment. It should not be overlooked that this termination occurred during the pre christmas period when employment relocation is usually difficult.

EVIDENCE OF NATIONAL GOVERNMENT MANAGER OF SPICERS STATIONERY

Mr Chris Dass, National Government Manager, Spicers Stationery, had been with the company for the last three years and was in charge of “Spicers Telelink” the telephone ordering service, which concentrated on marketing the products of the company mainly under government contracts, at a federal, state or local level. The group had been set up in May 1994, as a joint venture between Spicers Stationery and Spicers Paper with six original assignees who were working from outside agencies. The appointment of the first permanent employee was made later. At the time when the applicant commenced working on 18 September, 1998 there were four permanent employees and one assignee from Adia Centacom. The company had had a succession of assignees who had generally worked on the same territories then covered by the applicant. Mr Dass maintained that the authority to hire and fire rested with the Head Office of Spicers Paper and he had absolutely no authority to offer permanent employment to the applicant.

The applicant was referred from Adia Centacom to have an interview, as she seemed to fit that particular role. He maintained that the applicant was told that it was a temporary assignment with a view to testing the viability of the particular area. This claim should be contrasted with the fact that the group had been in operation for about sixteen months when the applicant was employed and some employees had been transferred from the Adia Centacom Payroll to that of Spicers Paper. The interview with the applicant took place in their showroom. There he explained the Spicers Paper organisation to her, and the place of Spicers Telelink within the telemarketing system as well as the range of products on contract and detailed what role was involved for her. The applicant was shown the room where she would be working. He maintained that he had not asked the applicant about her nationality or age or her marital status or her social habits.

He explained to the applicant that normally any contact about her conditions of employment was through Adia Centacom, who administered such matters. He made it clear to the applicant that it was a temporary appointment and he stressed he had not given her any undertakings that after 6 months she would be made a permanent employee. He confirmed that it was said to her that “it was a temporary assignment through ADIA and that it would be ongoing.” Asked to amplify the statement he suggested it would be a day to day assignment.

He agreed the applicant commenced on 18 September 1995 and suggested she was given some additional training as well as a brief introduction to the type of contracts, her use of the computer and further product and pricing advice. Training was on the job under the supervision of Mr Dannaoui with whom he had daily contact.

On the second day, that is Tuesday 19 September 1995, Mr Dass went to see her and stood near her desk and noticed that she was on a personal phone call. He was annoyed because the applicant continued with her personal phone call despite the fact that he was standing there. The call was extended longer than a couple of minutes but less than five minutes.

He agreed that during a conversation in which he was endeavouring to build up a rapport with her, he asked about her Macedonian heritage. However, he pointed out that he was born in Nyngan, NSW, and was therefore Australian born. He recalls that the conversation occurred when some cakes and pastries were being offered to the staff by the applicant, who mentioned that her mother had made them. He conceded that he had probably asked her about her nationality on that occasion.

He confirmed that he had asked the applicant to move her vehicle several times because where it had been parked it was blocking the entrance to No.2 Dock. He had been asked by the Operation Manager to have her move the car as the No.2 Dock was in use for unloading purposes. He had suggested to the applicant that she park up further where the other staff parked. His answer “yes” to a question on this issue was emphasised. Because there was a doorway adjacent to the loading dock it was probably convenient and was much closer to the actual location of the applicant in the office. In the following week in early October, apparently the applicant parked in the No 2 Dock area and Mr Dass again asked her to move it as there were numerous other parking spaces available.

He testified that the applicant was invited to a couple of functions including the farewell on 14 November 1995 at Le Sands Restaurant for Mr Dannaoui. Also, she was invited to go to Port Stephens but she did not accept. He denied in a loud, sharp voice that he had given her a hard time because she was Macedonian.

Exhibit 6 is a performance management report of Spicers Paper which was partially completed by the applicant and bears the date 12 October 1995. Mr Dass admitted that some of the writing on the form was his. However he denied the document was intended to be used by Spicers or that it was subject to any report back to Adia Centacom. It is not in dispute that the applicant had been successful in the initial approach to the job of selling paper. It is not credible to claim that the partial completion of the report was for no useful purpose. There is clear evidence that the applicant received praise for some of the results which she achieved. As is usual in “Sales” type situations reliance is placed on oral recollection by both sides to the equation rather than placing in evidence the completed written results.

Mr Dannaoui was in regular contact with Aida Centacom about a number of general issues. He was in touch weekly with that firm about the progress of the applicant. He was aware that a representative had pointed out that the applicant had enquired about the possibility of an increase in pay. Mr Dass confirmed he had not agreed to the charge-out rate being increased and consequently no increase could be paid to the applicant.

On or prior to 15 November 1995, Nina, one of the other staff members, reported to him that the applicant had made a successful large sale. Mr Dass conceded that he had approached the applicant after she had received this particularly large order and he had said to her; “Congratulations, Elena”, the applicant had replied, “Big fucking deal.” He responded by saying he did not appreciate that type of language and behaviour and then left the room. He emphasized that he had heard her use those words.

He passed this information on to Liz Johnson, then a Manager at ADIA Centacom Hurstville, who agreed with his reaction saying: “Oh that’s lovely!” Ms Johnson also told him that she had been speaking with the applicant who had been on the phone arguing about her rate of pay. He then said to Ms Johnson, “This temporary assignment should be terminated. Elena is not happy.” Ms Johnson replied, “If she is not happy then she should go.” He replied, “Well, I will tell her that.” The following testimony then occurred: “Now from that conversation with you, did you, gain the impression that Ms Johnson was telling you that she should go: Yes.”

He then went into the telemarketing room and asked the applicant if he could see her and took her into the showroom. He said he advised her that he did not appreciate that type of language and behaviour and suggested to her that they should part ways. He testified, “Why don’t we part ways?” She replied, “OK, fine.” “Why don’t you leave now and we will pay you for today?” With that, the applicant got up and she said “You got me cheap.” She went back into the room picked up some personal items and left.

He denied giving any adverse reference to Kelly & Associates about the applicant. Mr Dass also denied he had made any suggestion that the applicant would become a permanent employee of Spicers Paper. Mr Dass was then cross examined by Mr Britt for the second respondent. This phone conversation with Ms Johnson was not otherwise disputed. Ms Johnson was not called to give evidence by either of the counsel for the respondents although there was evidence that she had left the employ of Adia Centacom. Mr Dass stressed that it was Ms Johnson who suggested the applicant should go.

Under further cross examination by counsel for the applicant Mr Dass revealed a key motivation for terminating the employment of the applicant:

“Ms Keys: “But it was your evidence that Liz had said to you on the phone, if she is not happy then she should go, is that not right?---Yes.
So why were you saying, I think we should part ways?---I just said that to her.
Why?---Because she was not happy. With my prior discussions with AIDA, AIDA mentioned that she had been in – Elena had been in discussion regarding her rate of pay and it was her discussions and previous – during that particular week the issue of rates of pay had become quite heated with Elena and ADIA.
And who told you that?---Well after the – well during that particular discussion with Liz.
So Liz told you about heated discussions?---Yes she did. Elena had a heated discussion with ADIA that particular day.
That day?---That day of the completion of the assignment.”

FORMER SUPERVISOR OF APPLICANT

Mr Imad Dannaoui former supervisor of the applicant who was now employed as a sales marketing consultant, gave evidence by way of sworn affidavit and supplemented this by oral evidence. Mr Dannaoui was now employed as a sales marketing co-ordinator with a cleaning supply company where he had been for thirteen months. He had been the supervisor of Spicers Telelink for five months from July 1995 to November 1995. He gave evidence that he and Mr Dass interviewed the applicant for a temporary assignment on behalf of Adia and confirmed the evidence of the applicant as to the detail of the assignment. He also testified that she was told it was a temporary assignment which could lead to a permanent position. He denied that it was ever mentioned at the interview that the position would become automatically permanent after six months. He reinforced this testimony saying that such a decision had to be made from Head Office and was dependent upon the company structure and performance. Mr Dannaoui swore that he spent the first week of her temporary assignment training the applicant. Thereafter there were weekly training sessions about the paper products although any other training was left to the employees themselves. This provides some support for the testimony of the applicant on this issue.

He described the team promotion which involved selling fifty pallets of Georgia Pacific brand copy paper. If this target was achieved for the month $1,000 in gift vouchers would be split between the team members including the applicant. The target was not achieved, however the applicant did sell fifty pallets of another brand of copy paper during this monthly promotion. He testified that the applicant insisted during a weekly meeting that because she sold fifty pallets of copy paper, even though it was another brand of paper she should be entitled to $1,000 bonus individually.

He denies that he had heard Ms Christas or any other staff member refer to the applicant as Macedonian. He agreed that in about late October he and Mr Dass had conducted performance reviews of the staff at Spicers Telelink and they had an informal discussion with the applicant.

After the applicant left Spicers Telelink he recalled a telephone conversation in which she asked him to provide her with a reference. During the conversation he suggested the applicant had described Mr Dass as a “bastard”. He had advised Ms Jodie Wallace who had rung possibly once or twice a week but at least once a fortnight that he was satisfied with the perfomance of the applicant. He described the position of employees of Adia Centacom as their tax paid by Adia Centacom, whilst any problems concerning the job task were directed to either him or his supervisor Mr Dass. He denied that he told the applicant that she could have his job when he resigned. Mr Britt counsel for the second respondent cross examined that Mr Dannaoui who confirmed he had spoken to Ms Wallace about once a week or at least every fortnight and stated that he was satisfied with the performance of the applicant. This is reinforced by the reference he wrote for her:

“TO WHOM IT MAY CONCERN 15^th January 1996
This is to certify that Elena Misheva was employed by Spicers Paper Limited in the Telelink division as a Sales Consultant for the period of 25 August 1995 to 17 November 1995.
I had been Supervising Elena during the above stated period and was in full comprehension to her health difficulties in the leg and back areas.
Despite her difficulties she showed tremendous determination and was diligent in all her tasks and work responsibilities. Elena was a professionally work orientated person and continued to maintain that spirit throughout her employment period.

Best Wishes

……………………
Imad Dannaoui
Sales Co-ordinator”

In including this reference I am not overlooking the evidence of Mr Dannaoui that he was overborne by the persistent requests for assistance from the applicant.

EMPLOYEE OF FIRST RESPONDENT

Ms Leah Quinn had been employed by Spicers Telelink for three years and provided an affidavit dated 16 January 1996 . Ms Quinn maintained that the affidavit truly and accurately set out her evidence and it too was supplemented orally. In paragraph 4 of the affidavit the following appears:

“At one of our weekly sales meetings a promotion was launched to sell the Georgia Pacific brand. If the team achieved sales of 50 pallets of this particular brand only, a $1,000 bonus of gift vouchers was to be split amongst the team. This promotion was for a limited time only. The team did not achieve this target. Ms Elena Misheva claimed that she should have got an individual target because she sold a large volume of another brand Pacesetter during this promotional period. She argued the point aggressively at another one of our weekly meetings. This order she received was a repeat, which Spicers Telelink regularly received during the previous twelve months. The team disagreed against her argument and her request was subsequently denied.”

In her strangely worded affidavit Ms Leah Quinn added the following:

“The team reacted to this individual response and reinforced clarification Ms Elena Misheva that the promotion was a team effort and they did not achieve the target.”

My main reason for not totally accepting the evidence of Ms Quinn is that I gathered from her oral testimony that she was very supportive of Mr Dass and had little positive to say about the applicant. In her affidavit the use of the words, “abusive manner”, “politely asked” “always treated fairly” and “she mentioned that she was not interested in attending”, paints an unfair picture of the applicant. Her affidavit which I have quoted above reveals some negative comments about the applicant which seem unjustified by the circumstances. Accordingly I do not accept her as being an objective witness. Ms Quinn described what happened:

“What did he say?---Congratulations on your sale.
Yes, was he---?---Well done.
Was there a response?---Yes.
What was that response?---She said, she turned around, she said, Big fucking deal and that was it. And then Mr Dass – will I continue?
Yes please?---Yes, he said, I don’t appreciate that type of language and he walked out of the room.”

However I do accept that it is more probable than not that she did overhear a conversation between Mr Dass and Ms Misheva, and that this was to the effect that he congratulated the applicant on achieving “your sale”. In my view her use of the phrase is not an accurate record because there would be no need for Mr Dass to congratulate the applicant on a sale unless it was of a substantial nature and this of course is not mentioned in the evidence of Ms Quinn. However I am inclined to accept that the applicant did use words such as “Big fucking deal”, not necessarily in an abusive manner, but in a retort out of anger and frustration at her failure to achieve any result out of her claiming an increase in pay. Mr Britt counsel for the second respondent did not cross examine Miss Quinn.

EVIDENCE OF FORMER PERSONNEL CONSULTANT

Ms Jodie Wallace, a personnel consultant in the temporary division had started with Adia Centacom in August 1995, but prior to that had worked with Centacom from April 1993. Ms Wallace placed an advertisement for a Telemarketer in the local newspaper after being advised that Spicers Telelink had asked for such a placement. Soon after placing the advertisement the applicant had contacted her although the applicant denied in her evidence that she had seen the advertisement. This difference between the two witnesses is of no consequence in the overall situation. During the interview on 12 September 1995 she explained to the applicant the details of the position informing her that it was a temporary job and that Adia Centacom had agreed to provide Spicers Telelink with a Telemarketer. The applicant was told that it was possible that Spicer’s would offer her a permanent position after she had worked with them for some time or Adia Centacom may have other positions available for her. Ms Wallace also suggested to the applicant that the assignment would last approximately three months. Ms Wallace agreed that she had been provided with a copy of the resume of the applicant and that she had completed an Adia Centacom attitude appraisal. A reference check had also been conducted and the notes which she had made on those discussions are included as exhibits.

During the evidence of Ms Wallace the applicant became distressed and again left the room. Her distress continued for some time and a short adjournment was granted to allow Ms Keys to speak to her as there was no instructing solicitor involved.

After meeting the applicant Ms Wallace contacted Spicers Telelink and informed them that she had a person available to start and arranged an interview for the applicant. Shortly afterward she was advised by Spicers Telelink that they had agreed the applicant could start. Ms Wallace confirmed that the applicant started work on 18 September 1995 and she had spoken to Spicers on the first day and again at the end of the first week to receive a report that she was satisfactory. However in discussion with the applicant Ms Wallace formed the view she was: “OK about the position but not 100% happy”. After about three weeks into the assignment the applicant had complained about the hourly rate paid to her. It was explained that this rate was in accordance with the award and Adia’s charges to the client. Ms Wallace told the applicant she would seek an increase from Spicers Telelink however this was not accepted. Ms Wallace suggested to the applicant that she would take her off the assignment but this was not acceptable to the applicant. In her discussion with Mr Dass, he informed her that he wanted to keep the applicant because she was doing a good job.

The applicant had complained to her about a particular contract which she had signed and for which she believed she had done a great deal of work for no extra money. There was also some discussion by Ms Wallace with the applicant about payment of incentives to employees, however the applicant was advised that no such payments were made by Adia Centacom. Ms Wallace had advised the applicant to hang on in her position with Spicers Telelink until something better became available. Some days after this conversation Ms Wallace received a phone call from Mr Dass who advised her that he and the applicant had decided to part ways.

EVIDENCE OF THE MANAGER OF ADIA CENTACOM PERSONNEL

Ms Nicole Harwick the Branch Manager of Adia Centacom, Hurstville Branch , joined the Centacom organisation in May 1994. In November 1995 the company merged its operations with Adia to become Adia Centacom. Her role in the company was to oversee the staff recruiting and training areas, to develop and implement business plans, as well as marketing, and generally providing support and assistance to consultants. Her evidence outlined the procedures used for registering a candidate for temporary employment:-

§ Request the candidate to complete the application form.

§ Fill in the paperwork for temporary employment which includes an employment declaration and a banking details form.

§ Arrange for appropriate computerised testing of the candidate

§ Interview the candidate.

§ All candidates were given an information kit

§ Reference checks are made on them by the consultant.

§ A temporary file is established on the computer system together with a paper file.

§ When the consultant receives an assignment from the client, the details of the job are entered into the computer system which then matches the skills required against the candidates in the data base.

§ The consultant contacts the candidate selected to discuss details of the assignment.

§ If a candidate accepts the assignment the duty of the consultant is to advise them of the pay rate, location of the assignment and the name of the person to whom they will be reporting.

§ It is pointed out that the length of an engagement can vary.

§ The job of the consultant is then to contact the client to advise them the name of the temporary and give them a brief run down of their skills and employment history.

§ It is part of their quality procedures that the consultant contacts the client on the first day of the assignment to see if the temporary is performing satisfactorily and determine whether there are any remaining issues which the client requires to be dealt with.

§ Thereafter there are regular checks to determine the progress of the employee.

§ It is stressed to the candidates that they should contact their Adia Centacom consultant about matters affecting their conditions of employment and pay.

Ms Harwick first became aware of the situation with Ms Misheva when the merger of the Adia and Centacom branches at Hurstville occurred. She had no prior need to speak with Ms Misheva but she was aware that she was still registered for temporary work. There is provision in the contract between the client and Adia Centacom that if a client decides to directly employ an Adia Centacom employee within six months of the last assignment of the employee then a standard permanent placement fee will apply. No such fee had been paid in respect of the applicant. Spicers Telelink were routinely invoiced by Adia Centacom for the use of the services of the applicant, Ms Hardwick maintained the applicant was an employee of and paid by Adia Centacom.

FINDINGS

With respects to the specific incidents raised by the applicant the following conclusions are reached. Mr Dass admitted to having a conversation with the applicant in which her Macedonian nationality was raised. I am not satisfied that this had any sinister overtones.

I am satisfied that the applicant felt that she was being singled out for attention in relation to the parking of her car. This is confirmed by the evidence of Mr Dass. Ms Quinn and Mr Dannaoui also testified that the applicant had been asked on at least two occasions by Mr Dass and on one occasion by Mr Dannaoui to move the vehicle. This is not as extensive as the applicant’s claim of six or seven times, however, for a person who was part time in the operation it seems to me the difference is not substantial, nevertheless it becomes a factor in the equation. It is also more probable than not that the requests to move the car were justified.

I do not accept his denials or the evidence of Ms Quinn that Mr Dass did not listen in to the applicant’s telephone conversations. After Mr Dannaoui left Mr Dass would have had much more responsibility in relation to supervision of the applicant, it is understandable that any supervisior who is required to work closely with a person who is making sales by the use of a telephone will listen to the conversation to make an assessment of what is occurring on a day to day basis so this too could lead to the applicant believing that she was being harassed.

In relation to the invitations to various functions I accept the evidence of the applicant that she was required to study for or attend examinations in connection with her university course and for that reason could not attend. It does not follow that the times were arranged so as to exclude the applicant from participation in the events.

There is no evidence presented to support the allegation that Ms Vicki Kontalis was treated more favourably than the applicant even if she were of Greek origin or descent. This person was not called upon to testify by any party.

I accept that Mr Dass probably used the words: “I don’t appreciate that type of language.” Mr Dass then overreacted to this incident and that this caused the termination of the applicant’s employment. This was an employment arrangement where the daily supervision was provided by one person and the conditions of employment were administered and regulated by a different organisation consequently the prospect for a breakdown in communications at the workplace are enhanced. The applicant believed she was achieving sales and sought additional financial reward. Unfortunately those supervisors who were praising her performance then took refuge from any responsibility by trying to plead that Adia Centacom was at fault for the failure to respond adequately. Despite the refusal to increase the charge out rate for the applicant.

This administrative arrangement is in contrast to the intention behind the Workplace Relations Act where the focus is on achieving good relations at the workplace. The type of administrative arrangement developed by the two respondents is not conducive to such a mutual understanding and “a fair go all round.”

The following findings are also made:

The applicant approached the second respondent for a position as a result of consulting the advertisement in the “yellow pages” telephone directory.
It was represented to the applicant that there was a strong possibility of permanent employment with the first respondent.
Training was in the nature of on the job instruction by her supervisors Mr Dannaoui and Mr Dass together with support from fellow employees.

Contract between First Respondent and Second Respondent

At the conclusion of the hearing late in the evening of 24 January 1997 the following orders were made:

“1.       Respondents to provide original terms and conditions of Adia Employees effective 1 March 1993 known as Exhibit 12 in the Court file.
2.        Second Respondent has search made of Adia’s printouts, disks and any proper records for matters relevant to these proceedings – Misheva v Spicers Paper Australian & Anor - in relation to Adia’s contact with Ms Misheva and her employment with Spicers Paper Australia.
3.        Applicant to provide written submissions by 21.2.97 4.00 pm. Respondents to provide written submissions by 4.00 pm 28.2.97. Written submissions to be provided in reply by 4.00 pm 14.3.97 by Applicant.
4.        The matter is stood over part-heard until 9.30 am – 11.00 am on Thursday 3.4.97 to address McIlwaine JR on the submissions.”

In accordance with paragraph 1 the contract between the two respondents was made available and it was evidenced by letter:- “Adia
The Employment People

8 June 1995  Adia Personnel Pty Ltd
  (ACN 006 253 336)
Mr Andrew Price
Spicers Stationery
133 Vanessa Street
KINGSGROVE    NSW
Dear Andrew
RE:     SUPPLY OF ADIA EMPLOYEES
Please find below the position description, the hourly charge rate and specific terms and conditions for the supply of ADIA employees under the Clerical and Administrative Temporary Employees ADIA Agreement 1994. Under the conditions of this Agreement, ADIA pay and charge public holidays, provided the temporary works the day before and the day after the public holiday. Further, ADIA pay and charge overtime in accordance with the Agreement. Overtime is due and payable after eight (8) hours in any one day, (unless flexible arrangements have been confirmed in writing) or thirty-eight (38) hours in any given week.
Position:  Reception/Switchboard
Hourly Rate:              $19.00
This quotation is to be read and accepted in conjunction with the general conditions on the reverse of this quotation. Please indicate your acceptance by signing where indicated on both sides and returning a signed copy to me.
Thank you for the opportunity to submit our quotation which shall remain valid for six months from the date of issue, unless Award of Agreement regulations change, whereby ADIA reserve the right to review rates. Should you have a requirement for any additional information please do not hesitate to contact me on 231-6622.
Yours sincerely  Accepted on behalf of:
ADIA – The Employment People  by:
  Title:
  Signature
(Signed)  Date:
Fiona Gardiner
TEMPORARIES CONTROLLER
Quote Ref: T120/95”

On the reverse of the above page was set out the Terms and Conditions for the supply of Adia Employees. The important parts of which are:-

“TERMS AND CONDITIONS FOR THE SUPPLY OF ADIA EMPLOYEES EFFECTIVE 1 MARCH 1993
Specific hourly rates to be invoiced by ADIA and particular Terms and Conditions for the supply of ADIA employees are on the reverse of this document and form part of this contract.
GENERAL CONDITIONS
The rates on the reverse are all net and subject to the following details and conditions;
The customer acknowledges that:-
1.        All ADIA employees are assigned under the care, control and supervision of the customer and the customer is responsible for all acts, errors and omissions of ADIA employees be they wilful, negligent or otherwise for the duration of the assignment.
2.        The hourly rates invoiced to the customer by ADIA include allowances for all applicable statutory charges, eg. Annual Leave, Sick Pay, Workers Compensation Insurance, Payroll Taxes, etc. ADIA is responsible for issuance of Group Certificates.
…………………...
…………………...
8.        ADIA will pay and invoice on the the basis of the working hours shown on the ADIA Time Sheet and the customer undertakes to have each ADIA Time Sheet authorised by an appropriate person.
9.        ADIA will pay employees and invoice the customer four (4) hours or such other appearance Monies as are designated by the appropriate Award or Agreement in the event that an assignment is cancelled or postponed without prior notice to the employee.
10.      ADIA are to be provided with not less than eight (8) hours notice of cancellation or postponement of any individual ADIA employee’s assignment.
…………………
14.      If the customer seeks to recruit an ADIA employee to their own staff within six (6) months of the last ADIA assignment by the employee with the customer then a standard permanent placement fee will apply and be invoiced to the customer by ADIA.
………………….
TERMS STRICTLY FULL PAYMENT SEVEN (7) DAYS FROM DATE OF INVOICE
Signed for and on behalf  Signed for and on behalf of
  ………………………………...
of ADIA by:by its duly authorised representative

Signature:  Signature:
Name:  Name:
PC No:  Designation:
Date:  Date:”

No issue was raised between the first and second respondents that this agreement was not binding between the two of them. It is important to note that Spicers Paper by this agreement accepts the care control and supervision of an Adia Centacom employee being the applicant in this case. Moreover it takes responsibility for all acts, errors and omissions of Adia Centacom employees be they wilful negligent or otherwise for the duration of the assignment. This agreement of itself is sufficient to create the relationship of employee-employer between the Adia Centacom employee under the contract and Spicers Paper. I am also satisfied based on the evidence of the witnesses for the respondents that a great deal of control was exercised over the applicant in carrying out her tasks. This is an added factor in creating an employment relationship between the applicant and Spicers Paper.

There is a further agreement that Adia Centacom are to be “provided with not less than eight (8) hours notice of cancellation or postpone or postponement of any individual Adia’s employees assignment”. This condition also restricts the right of Spicers Paper to terminate the employment of the applicant.

WRITTEN SUBMISSIONS

In her written submissions Ms Keys on behalf of the applicant submitted:

“The applicant contends that her employment with Spicers Paper was unlawfully terminated on the following grounds:
(a) Spicers Paper failed to give the Applicant notice of the termination of her employment pursuant to section 170DB of the Industrial Relations Act, 1988 (Cth);
(b) Spicers Paper failed to give the applicant an opportunity to defend herself against the allegations made about her conduct/performance pursuant to section 170DC of the Industrial Relations Act, 1988 (Cth);
(c) Spicers Paper terminated the applicant’s employment without valid reason which was connected with the applicant’s capacity or conduct or based on operational requirements, contrary to section 170DE(1) of the Industrial Relations Act, 1988(Cth).
(d) Spicers Paper terminated the Applicant’s employment for reasons which included reasons related to the applicant’s race, contrary to section 170DF(1) of the Industrial Relations Act 1988 (Cth).

In an alternative submission Ms Keys on behalf of the applicant contended that her employment with Adia Centacom was unlawfully terminated by Spicers acting with the authority of Adia Centacom as the supervisor of the employment of the applicant, on the following grounds:

(a) the First Respondent, acting with the authority of the Second Respondent, failed to give the applicant notice of the termination of her employment pursuant to section 170DB of the Industrial Relations Act, 1988 (Cth);
(b) Spicers acting with the authority of Adia Centacom, terminated the employment of the applicant without valid reason which was connected with the Applicant’s capacity or conduct or based on operational requirements, contrary to section 170DE(1) of the Industrial Relations Act, 1988 )Cth).
The applicant seeks:
(a) reinstatement pursuant to section 170EE(1) of the Industrial Relations Act, 1988; or
(b) compensation pursuant to section 170EE(2) of the Industrial Relations Act, 1988; and
(c) damages pursuant to section 170EE(5) of the Industrial Relations Act, 1988.”

The first submission is rejected as there was only an employment relationship established by the applicant with Spicers Paper. The contract of employment was with Adia Centacom and the remedies of the applicant ultimately rest with that organisation.

In her written submissions the applicant also made an application for leave to amend or claim to include a period of unpaid wages and payment for study leave. The applicant gave no indication that she was entitled to payment of study leave in the conditions of her employment. Nor was any evidence given which disputed the date of termination originally accepted by all the parties. The application cannot be granted.

Mr Johnson on behalf of Spicers Paper submitted:

The first respondent submits that the ultimate authority over the applicant rested with the second respondent. In accordance with the principles outlined in Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16. In the circumstances above, the position of the first respondent was no more than an agent of the second respondent. The fact that the applicant was invited to attend two social occasions (a fact which is disputed by the applicant) does not create an employee/employer relationship, nor does a document purporting to be a staff performance form which sets out in her own glowing terms of what an asset she is to any employer create and employer/employee relationship.”

This submission overlooks the impact of the day to day control of the activities of the applicant exercised by the Manager Mr Dass and the supervisor Mr Dannaoui on behalf of Spicers Paper. It also does not take into account the contractual responsibility for the applicant imposed on Spicers Paper by its agreement with Adia Centacom.
Regarding the evidence of the applicant:

“The first respondent submits that the impression that the court would gain of this applicant was, at worst deliberately lying to the court or in the alternative that she as the applicant is a petulant, manipulative and egocentric person who believes that the first and second respondents; (a) cannot do with her and, (b) if they can do without her they will have to pay for their temerity to consider her anything less than outstanding.”

Although one conclusion to be drawn from her performance in giving evidence would support this submission. I do not find that she deliberately lied to the court. However on occasions she was less than frank as were other witnesses for the first respondent. There is sufficient evidence that the applicant suffered from a bad back and could not sit for lengthy periods. Also she had undergone major surgery which delayed the commencement of the trial and she was on medication during the trial.

At the end of the second day of hearing Mr Britt, advocate for the Adia Centacom made a statement as follows:

Second Respondent’s Admissions

The second respondent concedes that it is the employer of the applicant.
The second respondent concedes that if the Court were to make the following findings of fact and law in these proceedings that:
           (a)       the second respondent is the employer of the applicant;
           (b)       the applicant’s employment was terminated;
           (c)       the termination was at the initiative of the employer;
(d)the applicant is not an employee excluded by regulations made under section 170CC of the Workplace Relations Act (the “Act”); and
(e)the employee is not guilty of serious misconduct in terms of paragraph (b) of subsection 170DB(1),

then the second respondent is in breach of section 170DB(2).

Subsequently he made two further points:

That the employment of the applicant was for a specified task and therefore excluded from the provisions of the legislation; and,
Adia Centacom were excluded from liability on the basis that the action taken by Spicers Paper had lead to a frustration of contract. The scope of specified task has been examined by Wilcox CJ in Raymond Drury v BHP Refractories Pty Ltd (an unreported IRCA decision No.276/95 dated 16 June 1995 after referring to the facts of the case and the argument of counsel he concluded:
“I do not think this is correct. The words “for a specified task” qualify the words “contract of employment.” The contract of employment must be for a specified task; it must be a contract under which the employee is to carry out a specified task. The words “for a specified task” have nothing to do with the employer’s task, or project. This seems clear as a matter of grammar and it makes sense in policy terms. One can understand a view that the protections provided by Division 3 of Part VIA should not be available to people who undertake only a specified task. Especially after the task is completed, it would be anomalous to restrict the employer’s right to terminate the contract of employment. Bearing in mind that many projects undertaken by employers continue for many years, while employees come and go, it would be equally anomalous to exclude relief under Part VIA simply because the employee was engaged in connection with a particular project.”

In this case there had been a series of employees employed before the applicant at Spicers Telelink and the position would continue for as long as Spicers Paper believed it to be productive of sales of its products. The applicant was not employed for a specified task.

With respect to the argument that Adia Centacom was entitled to rely on the doctrine of frustration to escape liability this cannot be accepted. That doctrine in order to be effective requires the intervening event to have been without fault of the parties. In this case all of the parties contributed not least Adia Centacom by not exercising its right to insist on a breathing space of eight hours as it was entitled to do under its contract with Spicers Paper.

TERMINATION AT THE INITIATIVE OF THE EMPLOYER

A key issue, upon which the applicant bears the onus of proof was whether there was a termination at the initiative of the employer. Adia Centacom asserts that the termination of the employment of the applicant was not at its initiative.

There are some differences between the parties as to how the termination occurred, however, when all the factors are taken into account, it seems that the disputed facts between the two persons is of little consequence. The direct evidence arises out of the context of the discussions between Mr Dass and the applicant. I have sufficiently outlined, in my earlier remarks, the way in which the termination occurred.

Neither the applicant or Mr Dass were able to provide secondary evidence of a corroborating or supporting nature as to what had occurred in their private conversation after Mr Dass had obtained the concurrence of Ms Johnston to his proposed course of action. On one view of the matter Mr Dass can be simply seen to be passing on a message from Adia Centacom. On balance I am prepared to accept the version of the events given by the applicant. I am satisfied that there was clearly a termination at the initiative of Adia Centacom.

In Qantas Airways Ltd v Christie (1998) HCA 18, McHugh J cites with approval a decision of the Full court:

“In Mohazab v Dick Smith Electronic Pty Ltd (No.2), the Full Court of the Industrial Relations Court interpreted the phrase “Termination of employment at the initiative of the employer” in accordance with the general rules of treaty interpretation found in Arts 31 and 32 of the Vienna Convention on the Law of Treaties 1969. The Full Court held that “Termination of employment at the initiative of the employer” meant a termination that was brought about by an employer and to which the employee had not agreed. The Court held that a termination occurs when “the act of the employer results directly or consequentially in the termination of the employment.”
It said:
“That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

Had Ms Johnson insisted on an eight hour delay it is likely that proper discussions could have taken place and the matter resolved satisfactorily. I am satisfied that had Adia Centacom had taken a different course the applicant probably would have remained in the employment relationship with Spicers Paper.

ALLEGATION OF DISCRIMINATION ON GROUNDS OF RACE AND SEX –
WAS THERE AN UNLAWFUL TERMINATION?
There was also a claim made by the applicant that the respondents terminated her employment by reason of her race and or sex contrary to section 170DF(1)(f) of the Act.

In Milica Stojanovic v The Commonwealth Club Limited (unreported, AI267R of 1994, 8 December 1995) Moore J outlines some of the issues involved in a claim that the applicant was dismissed from her employment on the grounds of her pregnancy. After discussing the concerns of one witness as to the advisability of the applicant continuing to perform the heavy duties of a supervisor at the club rather than an apparently less physically demanding job of a secretary. He observed:

“I do not suggest that these concerns did not flow from views genuinely held and I have no doubt they reflect views shared by others in the Australian community. However the legal obligations of the Club derive from the Act.
Parliament has made plain in s 170DF(1)(f) that pregnancy is not a reason justifying the termination of an employee’s employment subject to the qualifying effect of s.170DF(2) which provides:
“Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position”
and s 170DF(3) concerning staff at religious institutions.
¼
However the relationship between s 170DE and s 170DF(1)(f) is a matter I need not consider further nor determine. That is because the views then held by at least two members of the committee about the likely effect of the applicant’s pregnancy on her capacity to perform her duties were a matter of speculation and not based on any observed incapacity. Such views are symptomatic of the type of conduct to which s170DF(1)(f) was directed. More importantly they constitute evidence from which it might reasonably be inferred that at least one reason for the termination of the applicant’s employment was her pregnancy and the belief that she would, while pregnant, not be able to perform her duties or, in doing so, would put at risk her health.
A reason for the termination of the applicant’s employment may have been a belief, genuinely held, that the applicant’s behaviour had led to a significant and material deterioration of the relationship between her and Mr Stowell in particular. However there is evidence that points to a further reason being the applicant’s pregnancy. The Club has not demonstrated it was not. I am not satisfied that the pregnancy of the applicant was not a reason for the termination of her employment. Accordingly, having regard to the combined effect of s 170DF(1)(f) and s 170EDA(2), I find the termination was in contravention of a provision of Division 3 of the Act.”

In this case I am not satisfied race or sex was a factor in the termination.

In considering this matter I have taken into account the observations of Northrop J in Johns v Gunns Ltd (1995) 60 IR 258, where he examined the scope of the operation of section 170DF(1)(f) and concluded:

“The respondent has to establish a negative, namely that the reasons for dismissal did not include the reason that Mr Johns was temporarily absent from work because of injury. A mere denial may not be sufficient. All the facts and circumstances of the case have to be considered.”

On this issue Northrop J also cites with approval a passage appearing at page 268 in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 which he observes has equal application where s170DF(1)(a) of the Act applies:

“The provisions of s.5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant’s action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge.”

In this case I accept the denials of Mr Dass that race or sex was not a factor in his decision to terminate her employment.. Mr Dass improperly took the recourse the applicant was having to Adia Centacom over the payments being made to her into his consideration of the difficulties which had arisen between them. I have drawn the conclusion that the main reason for the employment of the applicant being brought to an end was concern by Mr Dass about the effect her claims for increased payment was having on the Spicers Telelink operation and in particular on staff morale. The phrase “administrative authorities” is wide enough to encompass the role which Adia Centacom had in the contract of employment. Accordingly, this decision contravened s170DF(1)(f) of the Act on the ground of recourse by the applicant to competent administrative authorities. Normally there would be a declaration that Spicers Paper contravened s170DF(1)(f) of the Act on that ground and possibly Adia Centacom as well. It would be inappropriate to make such a declaration in this case as the point was not taken in the proceedings. It is sufficient to take it into account in considering whether there was a valid reason for the termination of the applicant.

WAS THERE A VALID REASON FOR TERMINATION?

Under the provisions of the Act, the employer, in this case Adia Centacom, carries the burden of showing that at termination it had a valid reason or reasons for bringing the employment to an end summarily. In his decision in Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371, Northrop J describes the meaning of this phrase in the following way:

“Section 170DE(1) refers to “a valid reason, or valid reasons”, but the Act does not give a meaning to those phrases or the adjective “valid”. A reference to dictionaries shows that the word “valid” has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: “2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.” In the Macquarie Dictionary the relevant meaning is “sound, just, or well founded; a valid reason.”
In its context in s170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bostik Pty Ltd (1995) 60 IR 1, when considering the construction and application of s170DC.”

The defence of this case by Spicers Paper was based on the concept that the applicant was not an employee of its organisation. Spicers Paper suggest at most it was an agent of Adia Centacom. There can be no dispute that there was an employment relationship between the applicant and Spicers Paper even though it fell short of being a Contract of Employment. There was a contract of employment between the applicant and Adia Centacom. As there was no Contract of Employment between the applicant and Spicers Paper it follows that Adia Centacom is required to prove that at 15 November 1995 it had a valid reason for the termination of the applicant. Spicers Paper maintains through its representative Mr Dass its reason for dismissing the applicant revolves around her use of abusive language to Mr Dass. It is more likely that without a supervisor he did not need the extra aggravation of a relatively new member of the team disputing the level of salary paid to her. I am satisfied that the demands of the applicant for an increase in her pay was the real reason for her termination. It is easy to see that this became an embarassment to Mr Dass. No doubt he was convinced that he was able to dispose of the services of the applicant easily and without any consequences to his organisation under its arrangement with Adia Centacom. This was a section which had employed a series of persons who had not been satisfactory for one reason or another.

Even if it were to be accepted that Mr Dass was so offended by the words spoken to him so that he had no alternative other than to dispense with the services of the applicant I am not satisfied that at 15 November 1995 this could properly be established by Adia Centacom as a valid reason for her dismissal. There was no evidence of a review of the incident by any other personnel consultants or Managers of Adia Centacom. Ms Johnson did not seek an eight hour delay to achieve this purpose. Had the issue been discussed in a proper way with Ms Wallace involved perhaps a review period could have been worked out and a specific level of sales calculated to give the applicant an incentive to stay on at the business. The evidence of Mr Dass that he spoke to Ms Liz Johnson and obtained her concurrence to the dismissal remains unchallenged. This does not give the case for Adia Centacom any proper basis for establishing that the decision to terminate the applicant was sound or well founded.

The evidence in this case leads me to the conclusion that there was not well founded or just grounds for the decision to terminate the employment of the applicant. There was not a valid reason to terminate the employment of the application.

SECTION 170DC: EMPLOYEE OPPORTUNITY TO RESPOND

Section 170DC is in the following terms:

“An employer must not terminate an employee’s employment for reasons related to the employer’s conduct or performance unless the employee
(a) has been given the opportunity to defend himself or herself against the allegations made or
(b) the employer could not reasonably be expected to give the employee that opportunity.”

In this matter Section 170DC(b) certainly does not need to be considered. Although her language was inappropriate it did not constitute ‘serious’ misconduct warranting instant dismissal. In Raymond Drury v BHP Refractories Pty Ltd (1995) 62 IR 467, Wilcox CJ mentioned earlier referred to a much more serious use of language and personal invective directed at a supervisor as follows:

“I agree with Mr Raymond that it did not constitute “serious misconduct”, warranting instant dismissal. But it was behaviour that went beyond even the “give and take” atmostphere of a modern Australian workplace. It was disruptive behaviour that called into question the authority of the person who was in charge of the project. If continued after a clear warning, it was conduct that constituted a valid reason, connected with operational requirements of the project, for Mr Drury’s termination: see s.170DE(1) of the Act.”

The applicants conduct in this case is mild when compared to the frequent use of the “f” word by Mr Drury and his other vivid descriptions of his supervisor including an insulting reference to an apparent matrimonial difficulty. I do not see her remarks, sarcastic as they were, as challenging the authority of Mr Dass.

The applicant was not given the opportunity to defend herself against the allegations of abusive language. Nor the fact that she was seeking recourse to her employer for an increase in pay. At the very least section 170DC required Mr Dass to set out to the representatives of the second respondent in some detail his reasons for terminating the employment of the applicant. The applicant should have been spoken to by one of the consultants before the assignment was terminated.

In Perrin v Des Taylor Pty Limited (1994) 58 IR 254 at 256-7, Moore J said the following about the purpose of section 170DC:

“Its purpose is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee’s capacity. In the present case, the applicant may have been able to show that the complaints about slow delivery parts had no factual foundation or that there was an explanation for their slow delivery that did not relate to any want of effort on his behalf.
A second purpose of s170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. They may be extenuating personal circumstances or they may involve undertakings about future conduct.”

Despite the fact that the applicant had frequent discussions with the representatives of Adia Centacom, there was no evidence of any opportunity being given to her to respond to the allegations made against her. It appears that Mr Dass was convinced that he could rely on his view that the applicant was not an employee of Spicers Telelink and she was therefore a person who could be terminated without any opportunity to defend herself. This can be the only logical conclusion as to why he would act in such a peremptory fashion.

In my view, Adia Centacom breached section 170DC of the Act, in that it should have given the applicant the opportunity of making representations about the retention of her job. Ms Liz Johnson concurred with the view of Mr Dass and improperly did not insist on the 8 hours notice required under the contract. In addition, the applicant may have wished to give “undertakings about future conduct to” both respondents including ways in which the dispute about the level of payment to her could be resolved. In those circumstances there will be a finding against the second respondent that there was a contravention of section 170DC of the act.

REINSTATEMENT : IS IT IMPRACTICAL?

As to whether it is impracticable to reinstate the applicant I refer to the observations of Wilcox CJ and Keely J in Liddell v Lembke (1994) IRCR 466 at page 487.

“The precise meaning of impractical in this context should be left to another day. The question is one of general importance. It was not fully argued in this case, but although impractical does not mean impossible, it means more than inconvenient or difficult. Imposition of such a stringent limitation on the court’s power to award compensation rather than order to reinstate is inconsistent with the notion that Parliament intended the court have an open discretion whether to intervene at all.”

This is also supported by Gray J in his judgment in that case at page 495. “Reinstatement is therefore required if it can be done. If the employer is still employing or able to employ someone to perform the same or similar tasks, then reinstatement will be practicable. Its practicability does not depend on the existence of grounds which would have justified termination but which were not relied on, because unknown to the employer at the time of termination.”

The only cogent evidence from the first Respondent that would lead me to consider that it would be impractical to reinstate the applicant was given by Mr Dass to the effect that he has lost confidence in the applicant. He had nothing of a more tangible nature to provide to the court. A lack of confidence by a former employer is not a sufficient ground to prevent reinstatement of the former employee.

The applicant acknowledged that she was still emotional about it and felt she could not give full service to someone such as Mr Dass who she considered had treated her so roughly.

I am satisfied that I have only a limited discretion not to reinstate the applicant where it has been found that there is no valid reason for termination of his employment. (See decision of Liddell v Lemke t/a Cheryls Unisex Salon (1994 IRCR 466 supra). Because of the decision which I have come to on the grounds of the impracticality of reinstatement it is not necessary to determine the question as to whether there is power under the legislation to reinstate the applicant with Spicers Paper.

The applicant failed to give any positive evidence that would support her claim that reinstatement is not impractical. During the trial the applicant often was visibly distressed and sat with her head bowed during much of the hearing. Frequently she had to stand or leave the courtroom because of pain from her back. I am not satisfied by the physical signs which she exhibited during the hearing it would be either practical or proper to reinstate here to a position which requires lengthy periods of sitting.

I am satisfied that at least one other member of the staff would not welcome her reinstatement. The impression is easily gained that the feeling is mutual in so far as the applicant was concerned. It is impractical on physical grounds to reinstate the applicant to the position in which she was employed immediately before her termination by Adia Centacom at Spicers Paper.

There was no other evidence given as to the possibility of a similar position with another section of Spicers Paper.

The applicant still bears a sense of injustice. In the circumstances of this case I am of the view that the discretion should be exercised against the applicant. Therefore I find that it is impractical to reinstate the applicant.

DISTRESS

The applicant had responded positively to the blandishments of the representatives of Spicers Paper who had requested she go to them for an interview. Her performance had been publicly approved by Mr Dass and also by Mr Dannaoui. Her termination was carried out with the concurrence of Ms Johnston.

I am satisfied that she did suffer distress of the nature outlined in Burazin v The Blacktown City Guardian Pty Ltd (1995) case (unreported IRCA (Full Court) decision No. 606/96 dated 13 December 1996). In that case the full court, determined that in making an assessment of damages caused by stress suffered in a termination of employment restraint must be exercised in the level of damages.

In this matter I assess damages suffered through distress caused by the method of termination at $1,000 dollars. I make that assessment upon my observations of the applicant in giving her evidence, her description of how she felt at the time of her termination and the reaction which she illustrated in the witness box. I am satisfied that it did and will have a continuing adverse impact on her. Those circumstances justify taking that damage into account.

NON ECONOMIC LOSS CAUSED BY UNLAWFUL TERMINATION ON GROUNDS OF RECOURSE TO COMPETENT AUTHORITIES

In order for there to be a connection between a breach of duty and for damages to follow, it is necessary to show that the breach relied upon was a cause of the loss suffered. The test as to whether the act or admission was a cause of damage is one of common sense. Adia Centacom was obliged to ensure that there was proper discussion about her claims. In this case, Adia Centacom had a duty of care to its employee (the applicant) to protect her from injury caused by the unlawful terminating of her employment relationship with Spicers Paper. This is a clear case of a breach of that duty.

My assessment of the key witnesses in this case leads me to conclude that a proper working relationship cannot be re-established. Nevertheless, I acknowledge that the finding which I have made on the allegation of an unlawful termination on the ground of recourse to competent authorities may in some cases require a declaration reinstating the applicant. However, I have taken into account the observations of Kirby J at p.70 in Qantas Airways Limited v Christie (1998) HCA 18, 19 March 1998:

“But if reinstatement were not ordered, questions of compensation and damages would remain. By such means a court could vindicate the provisions of the Act although in circumstances which took into account the mitigating factors, including some of those upon which Qantas relied.”

There is extensive discussion of the assessment of non economic loss in sexual harassment cases such as:

Bennett & Anor v Everitt & Anor (1988) EOC 92-244
Tammy Jackson v Riste Ilievskil (Innes, Com., Human Rights and Equal Opportunity Commission, 10 February 1997, unreported, decision no.H96/85
Lorelle Dippert v Cliff Luxford and Vrachnas Betabake Pty Ltd (1996) EOC 92-828
Hall, Oliver and Reid v Sheiban (1989) 85 ALR 503

Based on an examination of these cases it is reasonable to conclude that a range exists from $6,000 to $9,000 for such damages. I am satisfied, having reviewed the above cases, that an assessment of $8,000 for the damage suffered through the failure of the respondent to protect the applicant from injury caused by the unlawful termination of her employment relationship with Spicers Paper.

COMPENSATION

The circumstances of the termination of the applicant may be compared to those which applied to the applicant in May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112). In that case Wilcox CJ, made an assessment of her future losses based on the difference in terms of the salary which the applicant was likely to receive and that which she would have received in her previous position in her former employment.

The calculation of that amount led to the amount of damages being in excess of the maximum amount of compensation allowed under the legislation. Accordingly the maximum amount was allowed. In the present case I do not have the necessary evidence as to future losses as it was not led from the applicant. Accordingly there is no evidence on which I can rely to make such a prediction.

In the circumstances I am limited to assessment of the damages based on the evidence from the applicant for the period she was unemployed, together with the amount for distress and for non-economic loss caused by the unlawful termination of employment which I have assessed earlier.

Alternatively if the three elements of the Contract of Employment and the employment relationship had a proper discussion about the issues involved it is likely that the employment of the applicant would have continued for some time. If Ms Wallace had been allowed to perform her proper administrative function; it is likely that the applicant would have stayed in the job until a more suitable position became available given the limitations on her capacity to work as a result of her previous injury. Such assessment needs to take into account the Christmas/New Year shutdown period in industry. In these circumstances it is foreseeable that the applicant would be in that employment until May or June 1996 at least. A period that coincides with the maximum amount of compensation allowed under the legislation.

It is not appropriate to make any deduction for the workers compensation payment as this was paid to her for a different purpose.

There will be an award of the maximum amount allowed under the legislation.

It can be seen from the conclusions that have been reached that Adia Centacom has contravened Section 170DB(2) and an award of one weeks wages should also be paid to the applicant..

COSTS

I note counsel for Spicers Paper may wish to make submissions about the question of the payment of the costs of Part of these proceedings as no formal orders have been made against them. I propose to give an opportunity of addressing the Court on that issue if that is desired by either respondent. The applicant will, of course, have an opportunity to respond. By 4.00 pm on 14 October 1998 Spicers Paper may lodge a Notice of Motion, together with an outline of any claim for costs against either the applicant or Adia Centacom. That outline is to include an itemised daily claim including disbursements for counsel. If a claim is made against the applicant then I will hear at the same time her response to any claim for costs and whether she would be seeking reimbursement from the Adia Centacom.

I observe that a difficulty facing Spicers Paper in this matter, is that part of the problem was occasioned by the filing of misleading and inappropriate Notice of Appearances. Indeed, it would seem to me that it can be strongly argued that a crucial turning point in the case was the admission to the court at the end of the second day of hearing by Adia Centacom as to its liability in the matter.

Spicers Paper is faced with Section 347 of the Act as the applicable section:

“347(1) A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.
347(2) In subsection (1): “costs” includes all legal and professional costs and disbursements and expenses of witnesses.”

As this application was filed after 15 January 1996 Section 170EHA is also applicable. Before finally concluding my remarks and to assist the parties, I note prima facie, that I consider there is currently no evidence before me, that the Applicant acted in a vexatious way or without reasonable cause. The fact that I have not accepted her evidence about what was said to Mr Dass, in my view, does not necessarily lead to the conclusion that she acted vexatiously and that costs should follow.

Contrary to the directions of the court it was not until the conclusion of the hearing that a proper copy of the written contract between the two respondents was made available to the court and presumably the applicant. For whatever reason it was only then that I am satisfied the parties were fully informed of the contractual position and employment relationship between the respondents. It would require additional detailed factual material, in my view, to assist either of the respondents to establish a case for costs. In the circumstances I propose to give both parties an opportunity to further argue the question of costs should such be needed.

In the event that action is not taken to file a Notice of Motion by 4.00 pm on 14 October 1998, then in addition to the orders which I have earlier indicated there will be an additional order entered:Each party to pay their own costs.

For this purpose I will set the matter down for a hearing at 10.00 am on 15 October 1998 or, if an argument is required, at such later time on that day as is convenient to the parties. If the Notice of Motion is not lodged by 4.00 pm on 14 October 1998 then I propose to decide the issue on the basis that there will be no order for costs and the parties need not be in attendance.

There will be judgment and orders accordingly.

I certify that this and the preceding 44 pages
Is a true copy fo the reasons for the decision of
Judicial Registrar McILwaine.

Associate: Kate Benson

Dated: 13 October 1998

APPEARANCES

Counsel for the Applicant: Ms J. Keys

Solicitors for the Applicant: (Counsel for the Applicant

appeared by direct brief.)

Counsel for the First Respondent: Mr Richard Johnson

Employer’s organisation for
First Respondent: Ms J. Robichaud

Printing Industries
Association of Australia

Employers Advocate for the Second Respondent: Mr Anthony Britt

Employers Organisation for
the Second Respondent: Australian Chamber of
Manufacturers

Dates of Hearing: 22.1.97, 23.1.97,

24.1.97, 1.5.97,

5.6.97

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 1420 of 1996

BETWEEN:	ELENA MISHEVA APPLICANT
AND:	SPICERS PAPER LIMITED TRADING AS “SPICERS PAPER AUSTRALIA”, “SPICERS STATIONERY”, “SPICERS PAPER” & “SPICERS TELELINK” FIRST RESPONDENT AND ADIA PERSONNEL PTY LTD (ACN 006 253 336) SECOND RESPONDENT
JUDICIAL REGISTRAR:		MCILWAINE
DATE OF ORDER:		9 OCTOBER 1998
WHERE MADE:		SYDNEY

INDUSTRIAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 96/1420

JUDICIAL REGISTRAR:	MCILWAINE
DATE:	9 OCTOBER 1998
PLACE:	SYDNEY

[1998] IRCA 33

9 Oct 1998