Morris v Bourke
[1996] IRCA 335
•24 July 1996
DECISION NO: 335/96
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether PROBATIONARY EMPLOYMENT - whether terminated for TEMPORARY ABSENCE on account of ILLNESS - whether termination for VALID REASON of CONDUCT OR PERFORMANCE - whether termination HARSH UNJUST OR UNREASONABLE - whether PROCEDURAL
FAIRNESS
Industrial Relations Act 1988, ss 170EA, 170CC, 170DE(1), 170DE(2), 170CC, 170DF(1)(f), 170EE(3),
reg. 30B(1)(c)
Industrial Relations Court Rules, o. 13 r. 2
TRACEY ALLISON MORRIS v RAYMOND CHARLES BOURKE
VI 5453 of 1995
Before: PARKINSON JR
Place: MELBOURNE
Date: 24 JULY 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5453 of 1995
B E T W E E N:
Tracey Allison MORRIS
Applicant
A N D
Raymond Charles BOURKE
Respondent
MINUTES OF ORDER
24 July 1996 PARKINSON JR
THE COURT ORDERS THAT:
Pursuant to order 13 rule 2 of the Industrial Relations Court Rules the name of the respondent be amended to Raymond Charles Bourke.
The respondent pay to the applicant compensation in the sum of
$8599.50
Time for payment is twenty one days from the date of order.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5453 of 1995
B E T W E E N:
Tracey Allison MORRIS
Applicant
A N D
Raymond Charles BOURKE
Respondent
REASONS FOR DECISION
24 July 1996 PARKINSON JR
This is a decision in relation to an application made pursuant to s170EA of the Industrial Relations Act 1988. The hearing took place on 7 and 9 May 1996 at Moe. The proceeding was then adjourned to enable the filing by the respondent of a document to be obtained from its accountant. Leave was reserved to apply in this regard. The document was not filed. No application for leave was made. An affidavit of a Mr James George Johnson sworn on 21 May 1996 was filed. The content of the affidavit was ambivalent and non-committal. Further, the affidavit material purports to draw conclusions and make assertions as to the likely conduct of the respondent. I did not find the contents of the affidavit filed on behalf of the respondent on 22 May 1996 helpful in explaining the failure to file the document.
The respondent is named and described as ‘Warragul Drycleaners’ on the original application made by the applicant on Form 132 as prescribed by the Rules of Court. Mr Raymond Charles Bourke filed a notice of appearance in the proceedings as the proprietor of the business trading as Warragul Solar Dry Cleaners. His evidence was that he was the proprietor of that business and that he was in partnership with his spouse.
Pursuant to Order 13 rule 2 of the Rules of Court, on the Court’s own motion I will order that the title of the proceeding is to be amended to accurately reflect the name of the parties to the proceeding. The name of the respondent is amended to Mr Raymond Charles Bourke, the registered proprietor of the business.
I now turn to the substantive matters in the proceeding.
The applicant was 24 years old at the time of the employment and was employed by the respondent at its dry-cleaning premises at Warragul in Victoria as a presser and driver. Her employment commenced on 24 July 1995 and was terminated by the respondent on 23 October 1995. The applicant was employed with no previous experience in the dry-cleaning industry. She received some training from other employees of the respondent when she commenced employment. In addition to pressing duties, the applicant was also responsible for delivery and collection duties to the respondent’s other outlets and to agencies.
The respondent submits that the employment terminated in the course of a probationary period, and that consequently s170CC and reg. 30B(1)(c) of the Act operate to preclude the jurisdiction of the court to hear the claim. In this regard the respondent relies upon a document (exhibit R1) which it says is a photocopy of a contract of employment entered by the parties on the day the applicant commenced employment. The evidence of the respondent was that it was a document written by Mr Raymond Bourke in accordance with a pro-forma in a reference publication. The terms of exhibit R1 in relation to a probationary period are clear. It provides for a probationary employment period of three months commencing on Monday 24 July 1995 and concluding on Friday 20 October 1995. The respondent identifies a signature at the bottom of the document as being placed on the document by the applicant on that day. The respondent’s evidence was that the applicant was handed the original document by Mr Raymond Bourke shortly after she attended the workplace to commence work. Mr Raymond Bourke’s evidence is that the applicant was handed the document at the back of the premises, where she remained to sign the document together with an employment declaration form for the taxation office and a superannuation document.
The applicant denies that there was any contract document provided to her on the day she commenced her employment. Her evidence is that she was not informed that a probationary period applied to the employment, nor did she sign a contract of employment document. Her evidence is that Mr Vincent Bourke, the manager of the store and the son of the proprietor, Mr Raymond Bourke, interviewed her for the position on Monday 17 July and that she was offered and accepted the position on that day. Consequently, she gave one week’s notice to her existing employer to enable her to commence work for the respondent on Monday 24 July 1995. Her evidence was that Mr Vincent Bourke was present on the day she started work, and that she only briefly saw Mr Raymond Bourke. Her evidence is that the only document she was provided with on commencement of the employment was the employment declaration form, the original of which was produced by the Australian Taxation Office in these proceedings (exhibit A1), and which the applicant completed in her car the following morning, immediately prior to commencing work. The irregularities in her signature and writing style in that document are consistent with the document having been so completed. Her evidence in relation to the superannuation documentation is that she was provided with the form in early October 1995 by Mr Raymond Bourke. This evidence is consistent with the fact that it appears that no contributions were made to the superannuation fund on her behalf until October 1995, and no confirmatory correspondence was received by the applicant from the fund until around that time (exhibit A2).
The applicant contends that the signature which is on the bottom of the photocopy employment contract document (Exhibit R1) is a signature which has been transposed or lifted or reproduced from the employment declaration form which she did sign on the day of commencement of her employment. The applicant submits that her employment was terminated by Mr Vincent Bourke as a result of her having been absent from work on account of illness in the three working days immediately prior to the termination of her employment.
The applicant called evidence from a handwriting analyst to inform the court of his observations and analysis of the handwriting on the photocopy document (Exhibit R1) produced as being the contract of employment. Mr Gary Lindsay Storey was formerly employed as a handwriting analyst for the Victoria Police located at the State Forensic Laboratories. He was employed in this capacity for nine years. He is now self employed in this capacity. I ruled that he was qualified to give expert evidence. His evidence was that to the extent that there can be any accuracy of analysis of photocopy documents, it appeared likely that the signature contained on the bottom of the document was a signature which had been reproduced from the applicant’s signature on the employment declaration form. His evidence was that the signatures were in material respects exact reproductions of each other and that the natural or usual minute variations which occur from signature to signature were not apparent as
between these two signatures. He said that a comparison of the original documents would enable such an assessment to be absolute, but these original documents were not available to him at the time of making his analysis. He observed that the documents provided both to him and to the court were photocopies of photocopies, and that on such photocopies more smudges and other distortions may appear. His conclusion as to the signature was that whilst it was clearly the applicant’s signature, it was a signature which had not been placed on the document originally by the applicant but had been transposed from the employment declaration document, exhibit A5.
I have been greatly assisted by Mr Storey’s evidence in my assessment of the probative value of the documentary evidence tendered on behalf of the respondent. Having regard to his evidence and the further matters set out below, I have concluded that the documentary evidence produced by the respondent in these proceedings was unreliable. The documents produced by the respondent were photocopies, and photocopies of photocopies. The respondent was unable to produce the originals of any significant document in the proceedings. In explanation, the court was informed by Mr Raymond Bourke that the original documents had, in the case of the original of the employment contract, been given to the applicant and last observed on the table in the rear of the respondent’s premises from where it apparently disappeared; in the case of the original photocopies of the contract and the warning letter, they had been mislaid during photocopying at a newsagent in Coolum Queensland in September 1995; and in the case of the no-carbon-required copy of the employment declaration, it had been provided to the respondent’s accountant but lost or misplaced at those premises.
I am satisfied that it is unlikely that so many crucial original documents or first generation photocopy documents would disappear in the circumstances set out by the respondent. I do not accept the evidence of the respondent as to the whereabouts of documents or the circumstances of their being misplaced. The only original document tendered by the respondent in the proceeding was a single page document described as a wages record sheet (exhibit R4). By the perforation on the left-hand side of exhibit R4, that document appears to have been extracted as a single sheet from a more extensive document. That document contains a number of notations regarding an alleged probationary period. However, I do not accept that the notations were made at a time which would assist the court in determining whether there had been a probationary period.
The absence of the original of Exhibit R1 containing an original signature, together with the absence of other documents including the no-carbon-required copy of the employment declaration which might have lent some support to the oral evidence given by Mr Raymond Bourke as to the contract’s origin and whereabouts, leads me to conclude that the documentation produced by the respondent is of little probative value. This is particularly so in circumstances where a friend of the respondent, Mr Barnes, was alleged to have been present at the signing of the original contract document containing the probationary term, and by his signature witnessed that document, yet was not called to give evidence. The evidence of Mr Raymond Bourke was that Mr Barnes was visiting from Coolum in Queensland at the time the applicant commenced her employment on 24 July 1995, and was said to have witnessed the applicant’s signature to the document during the course of that visit. This was denied by the applicant. This person was an important witness in these proceedings. The court rules provide for the taking of evidence from witnesses in distant locations by video link. No such application was made. I do not accept the evidence of Mr Raymond Bourke that he was unable to make contact with Mr Barnes, or that the witness had gone to the outback and was out of communication. There is no subpoena directed to this person to give evidence in the proceedings and no evidence of any attempt to serve such document.
The evidence of the applicant was that her hours of work were originally 8.30am to 4.30pm on week days. Her evidence is that these hours did not change until the second week of the employment. I accept this evidence. The document headed Employment Agreement Contract (exhibit R1) specifies the hours of work of the applicant as being the hours worked at the time of the termination of the employment, not the original hours worked at commencement of employment. This is not consistent with the document having been drafted and signed at or in the first week of the employment commencing 24 July 1995.
I prefer the evidence of the applicant in these proceedings. I found her to be a frank and forthright witness who was prepared to concede matters even when they were not favourable to her case. I did not find either Mr Raymond Bourke or Mr Vincent Bourke to be convincing witnesses. I am satisfied that the applicant did not sign any document which was a contract of employment or voluntary employment agreement or like document either prior to or after the commencement of her employment with the respondent. I also accept her evidence that she was not told by Mr Vincent Bourke or Mr Raymond Bourke that she was employed subject to a probationary period. I further accept the applicant’s evidence that she was never provided with a warning letter by the respondent in respect of her work performance, and that she did not receive a copy of any such warning letter dated 22 September 1995 (exhibit R2).
Having regard to all of the above matters, I am satisfied that there was never any probationary period applicable to the applicant’s employment by the respondent. The court has jurisdiction to hear and determine the s170EA application. Before I turn to the other aspects of this proceeding, it is in this case appropriate to observe that had I found that a probationary period operated in respect of the employment, it would nevertheless not have been a probationary period of the type contemplated by reg. 30B(1)(c) as operating to preclude the s170EA application. I am satisfied that a probationary period of three months would not in the circumstances of the employment have been a reasonable period. The is because the applicant’s position was a relatively junior position, requiring the performance of routine tasks in a workplace where the applicant was subject to supervision and daily direction and control by the owners and operators of the business. Indeed, the evidence of Mr Vincent Bourke was that the work was not complicated and that the applicant should have been able to pick up the work very quickly. In such circumstances it would be reasonable to expect that the respondent would not need a three month period of probation to assess the capacity of the applicant to do what it describes as basic work requiring little skill. A probation period of three months would not have been a reasonable period of time. I turn now to consider the matters arising under s170DE(1) and s170DF(1)(a) of the Act.
Valid Reason - s170DE(1) and s170DF(1)(a)
The respondent bears the onus of establishing on balance of probability that there was a valid reason for the termination of the applicant’s employment. That reason must be one relating to the applicant’s work performance or conduct or the operational requirements of the business of the respondent. The reasons for, or part of the reasons for, the termination of the employment must not include any of the matters proscribed by s170DF of the Act. One of those matters is a short term absence from work on account of temporary illness or injury.
I am not satisfied that part of the reason for the termination of the applicant’s employment did not include the reason that the applicant was absent from work temporarily on account of short term illness or injury. I refer to my findings above as to the alleged probationary period and observe that in view of that finding, it is no explanation for the timing of the termination of employment that the alleged probationary period was due to expire. I have already said that I am satisfied that there was no probationary period. The only incident of any note which occurred at or around the time of the termination of the employment otherwise, was the fact that the applicant was absent from work on account of illness.
The applicant was in fact hospitalised on 18 October 1995 and the respondent was contacted by, or made contact, with both the applicant’s mother and grandmother on at least two occasions during the course of the illness and hospitalisation. I am satisfied that the respondent was informed as to the applicant’s illness and I do not accept that the respondent was told by Mrs Morris, the applicant’s mother, that her daughter would not be likely to be returning to work. The applicant was absent from work for three days. There is no question that the applicant was not truly ill and that the respondent knew of this fact during the absence and from the commencement of the absence.
I accept the applicant’s evidence that when she returned to work on Monday 23 October 1995 she was taken aside by Mr Vincent Bourke and told “ that for future reference you need to let employers know why you’re sick”, and that it was not good enough that her mother and grandmother had rung. The applicant took this as being an observation of disapproval at her absence for illness. This was a reasonable conclusion on her part. It is the conclusion reached by the court. The applicant was then handed two envelopes, and a cursory explanation as to the payments being made upon termination of employment was given. The applicant correctly understood the reason why she was being terminated as being on account of her absence and its inconvenience to the respondent. Mr Vincent Bourke does not deny that he made the observation referred to, but explained it as being intended to assist the applicant in her dealings with future employers. The fact of this remark being made suggests that there was in the contemplation of the respondent at the time of the termination of employment an issue as to the applicant’s absence on account of illness. On the applicant’s evidence it was the only discussion held and the only matter referred to at the termination interview. I accept this evidence. The inquiries made by Mr Raymond Bourke and Mr Vincent Bourke in the period of the applicant’s absence also identify an active and motivating concern on the part of both persons with the fact of the absence for illness. I am satisfied that these inquiries were not motivated by an interest in the welfare of the applicant, but were founded upon an objection to her absence on account of illness.
On the respondent’s evidence, the applicant was told she was being terminated for poor work performance. The evidence of the respondent was that there had been occasions where the applicant had made errors in the performance of her work. There were three instances of errors in the period of the employment. The applicant was new to the work and had no previous experience in the industry, and it is not therefore surprising that she made some mistakes. However, the evidence does not establish these matters as being sufficient to constitute valid reason for termination of employment. Nor do I accept that they were matters in the contemplation of the respondent when the employment was terminated.
I am not satisfied that the respondent had valid reason for the termination of the applicant’s employment. The respondent has contravened s170DE(1) and s170DF(1)(a) of the Act in that the reason for the termination of the applicant’s employment was her temporary absence from work on account of illness. I turn now to consider the question of remedy.
S170EE - Remedy
The applicant had been employed by the respondent for a relatively short period of time. It is clear to the court that any relationship which may have existed between the parties has broken down entirely. I am satisfied that an order for reinstatement would be impracticable. The applicant has suffered loss as a result of the termination of the employment and is entitled to be compensated for that loss. In order to accept the position with the respondent, the applicant resigned from a part-time position as a private nanny in which she had been employed for some time. In this regard she lost a secure and ongoing income by taking the position with the respondent. Save for the conduct of the respondent in terminating the employment for the reasons I have found, the applicant was likely to have remained in the employment for some time. The area in which the applicant lives is an area of high unemployment and limited employment opportunities. It is reasonable to conclude from this that the applicant would not have lightly or in the short term have left the employment of the respondent. Her evidence was that she had applied for but been unable to obtain alternative employment. The applicant earned a base salary of $315.00 per week. Superannuation contributions on her account were required to be made at the rate of 5 per cent of the weekly wage. I am satisfied that the applicant ought receive compensation for the entire period she has been unable to obtain employment. The amount of compensation which may be awarded is limited by operation of s170EE(3) of the Act to an amount not exceeding the remuneration which would have been earned in the six months following the termination of the employment. That amount is an amount of $315.00 per week in base wages and $15.75 per week in superannuation contributions made by the respondent on the applicant’s behalf pursuant to superannuation guarantee fund obligations. The applicant is entitled to compensation in the sum of $8599.50.
The orders of the court will be:
That pursuant to order 13 rule 2 of the Industrial Relations Court Rules the name of the respondent be amended to Raymond Charles Bourke.
That the respondent pay to the applicant compensation in the sum of $8599.50
Time for payment is twenty one days from the date of order.
I certify that this and the preceding eleven (11) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate:
Dated: 24 July 1996
APPEARANCES
Counsel appearing for the applicant: Mr M Goldblatt
Solicitors for the applicant: McDonald & Charman
Counsel appearing for the respondent: Mr A Lindeman
Solicitors for the respondent: Phillips Fox
Dates of hearing: 7 & 9 May 1996
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