Noelene Brenda Savige v Chavel Pty Ltd t/as Greater Gippsland Petroleum

[1995] IRCA 390

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  VI 2197 of 1995

B E T W E E N:

Noelene Brenda SAVIGE

Applicant

A N D

CHAVEL PTY LTD
t/as GREATER GIPPSLAND PETROLEUM
Respondent

REASONS FOR DECISION

18 August 1995  PARKINSON JR

This is an application made pursuant to S170EA of the Industrial Relations Act 1988.

The applicant was employed in March 1994 as a casual administrative assistant at the respondent’s fuel distribution business. Her starting and finishing times varied to meet the convenience of the applicant and the business. I am satisfied on the evidence of the applicant and Mr Vellios, managing director of the respondent, that the applicant was employed to work an average of 15 hours per week (see also Exhibit A1 - A15), and that notwithstanding that she had on a number of occasions regularly exceeded this number of hours, 15 hours was the expectation in terms of ongoing hours of work. I am satisfied that the employment was continuous and was not of the type excluded from the operation of the Act by Regulation 30B.

The applicant was employed at an hourly rate of $14.49 which, in accordance with the provisions of the expired Clerical and Administrative Employees Award (Vic) (Exhibit R1), contained a sum in loading in lieu of various other entitlements under the Award including, according to Exhibit R1, payment in lieu of annual leave. I am satisfied that the terms and conditions of the Award were operative upon the employment of the applicant. Contributions were also made on her behalf to the Oil Industry Superannuation Scheme.

It is convenient at this point in the proceedings to deal with the submissions made on behalf of the applicant and respondent in relation to leave to proceed in the accrued jurisdiction of the court with claims and cross-claims arising out of contractual or other liabilities existing between the parties. 

This matter was listed for hearing of the S170EA application for 31 July 1995. The hearing date was set for late July at a telephone directions hearing held on 6 June 1995, and both parties were represented at those directions. No applications were made in the interim period in respect of the claim of either the respondent pursuant to an alleged debt, or the applicant’s subsequent claim to annual leave entitlements arising pursuant to the Employee Relations Act 1992 (Vic). On 27 July 1995 at 5.09 pm the respondent filed in the registry of the court by facsimile transmission a notice of motion seeking leave to proceed against the applicant in respect of an alleged debt arising in the course of the employment. In response to this, in the course of filing a defence to the claim, the applicant gave notice of a cross-claim arising out of an alleged entitlement to annual leave payments. Neither of these proceedings was brought with any notice. I am not satisfied that the determination of the question as to the debt alleged is a matter convenient or appropriate to be dealt with by this court in the course of these proceedings. I decline to do so.

Further, in so far as the claim by the applicant for annual leave entitlements is concerned, I say that it is not convenient for that matter to be heard by this court. This is because I am not satisfied, having regard to Section 19 of the Employee Relations Act 1992 (Vic), that there is jurisdiction for the court to deal with the claim in its accrued jurisdiction. The decision of his Honour Keely J in Jupp v Computer Power Group Limited (No 2) (1994) 56 IR 81 to the effect that the exercise of the accrued jurisdiction is subject to there being no limitations upon the accrual of the power in this court by way of the originating statute is relevant in this regard, and I have applied this approach. Section 19 of the Employee Relations Act 1992 vests exclusive jurisdiction in the Industrial Division of the Magistrates’ Court of Victoria. It is not convenient for the court to consider either of these applications made in the accrued jurisdiction and I decline to do so.

I now turn to deal with the application made pursuant to Sl70EA of the Industrial Relations Act 1988.

The following persons gave evidence in the proceedings:
Christopher Vellios      -       managing director of the respondent
Joy Vellios                    -       sister-in-law of Christopher Vellios
Henry Roy Staley         -       respondent’s depot manager
Noelene Brenda Savige  -       the applicant
Gayle Wojcinski           -       pay officer of the respondent

The circumstances and fact of termination are in issue between the parties. The applicant says her employment was terminated on 20 March 1995 as a result of her being attributed with the responsibility for rumours and allegations made about Mr Christopher Vellios, a principal of the respondent company. These rumours were repeated by Mr Vellios’ sister-in-law Mrs Joy Vellios at a family luncheon, and were attributed to the applicant. The applicant denies having made statements of the type or in the context attributed to her by Mrs Vellios, and for which she was blamed by Mr Vellios.

As a result of the upset caused to his family by the revelations made by his sister-in law, Mr Vellios made arrangements to meet with the applicant in relation to the matter. The respondent says that the meeting was for the purpose of warning and counselling, and that the termination of the employment resulting from the meeting occurred at the initiative of the applicant and constituted a voluntary resignation.  The applicant denies that she resigned from the employment.  Her evidence was that she was dismissed. 

The only persons present at that meeting were the applicant and Mr  Vellios.  Mr Vellios gave evidence that at no time did he dismiss the applicant from her employment, nor did he engage in conduct which would have been able to be construed by her as a termination of the employment.  His evidence was that the applicant had volunteered her resignation, saying “ Well I suppose I’d better resign”.  He had merely agreed that this would be the best course of action. The applicant’s evidence was that she had been directly dismissed, with the respondent saying that she was “under the circumstances dismissed immediately”. She understood she was being dismissed as a result of the rumours and allegations for which she was alleged to be responsible.

It is relevant for the purposes of determining whether the applicant resigned or was dismissed to look at the conduct of the applicant and Mr      Vellios prior to and immediately subsequent to the termination of employment. In the present case the applicant left the premises of the respondent in a distressed state and drove to premises at which the sister-in-law Mrs Joy Vellios and her husband operated a business. 

The evidence of the applicant and Mrs Vellios is that upon arrival the applicant was clearly distressed and  asked why she (Mrs Vellios) had said such things and that it had cost her job. It is apparent from the evidence of Mrs Vellios that her understanding at the time of the visit by the applicant was that the applicant had been dismissed from the employment. The evidence was further that Mrs Vellios had offered to contact the respondent with a view to getting her job back. This conduct of the applicant together with that of Mrs Vellios is consistent with there having been a termination of the employment at the initiative of the employer.

Further, I prefer the applicant’s evidence in relation to the circumstances of the termination of the employment. In the absence of any documented resignation, and having regard to the consistency in the evidence of the applicant and Mrs Vellios, and the personal circumstances of the applicant which suggest it would be unlikely that she would voluntarily resign her employment in the absence of alternative employment, I am not satisfied that the applicant resigned her employment with the respondent. I am satisfied that the termination of the employment was a termination at the initiative of the employer of the type contemplated by S170EA of the Industrial Relations Act 1988.

S170DE(1)- Valid Reason
I am not satisfied that the respondent had valid reason to terminate the employment of the applicant in the circumstances. At whose initiative the rumour complained of was raised is a matter which, on the evidence before me, is not established.  There is considerable variation between the evidence as to where and when the conversation took place. On balance I am not satisfied that the initiative was that of the applicant.

Further, the contents of the discussion were alleged by the applicant to have been raised by Mrs Vellios, the applicant merely responding to enquiries made by the former. What is clear on the evidence is that the applicant did not respond in a derogatory or a negative manner in so far as any discussion as to her employer was concerned.  The evidence of both Mrs Vellios and the applicant is that whatever the applicant may have said or acknowledged about any rumour, she had specifically indicated to Mrs Vellios that she did not believe it was true. 

Whilst in some circumstances conduct of an employee which is designed to disrupt or to affect the personal life of their employer, even when occurring outside of the workplace, may constitute a valid reason for termination, this is not such a case. I am not satisfied on balance that the applicant either initiated any such conversation or made any comments of a nature designed to disrupt or affect the respondent’s personal life.  The conduct of Mrs Vellios and her indiscreet repetition of rumours she was aware of was beyond the control of the applicant and is a matter for which Mrs Vellios is responsible, not the applicant.

I am not satisfied that the respondent had valid reason for the termination of the employment of the applicant.

I turn now to consider the operation of S170DC  and S170DE(2) of the Act in the circumstances.

S170DC  - Opportunity to be heard
I am not satisfied that the applicant was given an adequate opportunity to be heard in relation to the allegations made as to her conduct. Mr Vellios’ evidence as to the conversation which occurred between himself and the applicant at the termination interview was revealing in this regard.  When the allegations were put to the applicant, it is not in contest that she responded with a denial that she had made the comments or engaged in the conduct alleged.  Instead of querying what if anything she had said, the respondent’s response was to challenge her with the proposition:  “Are you calling my sister-in-law a liar?”  The use by the respondent of the familial relationship in this manner, and as the basis for indicating whose version of events he would prefer, was unfair. In the circumstances of such a retort by Mr Vellios, the applicant was in a lose/lose position. Nothing she could say would sensibly assist or retrieve her position, and this would have been apparent to her.  In my view this response on Mr Vellios’ part made clear the manner in which the applicant’s explanations were to be received and the weight which was to be accorded to them.  In my view the conversation discussed above reveals that the respondent had determined the circumstances and outcome of the matter before he spoke to the applicant on 20 March 1995.

Further, this court found it difficult to establish the date and time of the alleged conversation, much less the nature of its contents, with any accuracy. There was however no investigation of the allegations conducted by Mr Vellios.  The information provided by Mrs Vellios, such as it was, was taken at face value, and the applicant was fixed with the responsibility for Mrs Vellios’ version of the conversation which occurred.  It is clear on the evidence that the respondent did not know and was not informed that the applicant had indicated her disbelief of the rumours under discussion. 

Further, the termination of the employment in the circumstances, having regard to the fact that the respondent was acting upon the basis of a conversation alleged to have occurred and to which he was not a party, in circumstances where the applicant denied the accuracy of its contents, was harsh and unreasonable.

S170EE - Remedy
The applicant does not seek an order for reinstatement but seeks  compensation.  It is submitted on behalf of the applicant and the respondent that an order for reinstatement would be impracticable.  The evidence is that the applicant has not obtained alternative employment and that, given the allegations made against the applicant together with the evidence in the proceedings as to the circumstances of the termination being in direct conflict, this makes it unlikely that an amicable or even civil working relationship between the applicant and Mr Vellios would ever be established. This, it was submitted, is compounded by the necessity for communication on a regular basis between the applicant and Mr Vellios. I am satisfied in these circumstances that an order for reinstatement would be impracticable.  

In determining the appropriate amount of compensation I have had regard to the length of the employment with the respondent, the  reasonable likelihood that, but for the circumstances of the termination, the employment would have continued and the circumstances of the applicant, including her inability to obtain alternative employment.  I am satisfied that an appropriate amount of compensation in the circumstances is the sum of $2,608.20.  This sum represents a period of a further 12 weeks employment with the respondent.

In addition the applicant is entitled to damages in the sum of $ 434.70 as representing the amount of notice of termination to which she was entitled pursuant to S170DB(2) of the Act.

The orders of the court will be:

1. That the respondent pay to the applicant the sum of $ 2,608.20 in compensation.

1. That the respondent pay to the applicant the sum of $ 434.70 in    damages.

1. That such amounts be paid within 14 days of the date of this order.

I certify that this and the preceding nine (9) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.

Associate:
Dated:   18 August 1995

Solicitors for the applicant:  Warren Graham Murphy
Counsel appearing for the applicant:                  Mr S Wood

Solicitors for the respondent:  Rennicks Gippsland
Counsel appearing for the respondent:               Mr B Lacy

Date of hearing:  31 July 1995
Date of judgment:  18 August 1995