Nola Maree Trickett v Jeeds Pty ltd trading as Alma Village Supermarket

[1994] IRCA 102

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - Complaint of unlawful termination in contravention of Part VIA of the Industrial Relations Act - allegation that employee resigned - whether resignation or termination - recourse to documentary evidence when conflict of oral testimony

PRACTICE AND PROCEDURE - Costs - Costs against Third Parties - Costs against legal practitioners - Respondent not ready to proceed on hearing date due to failure of practitioners - matter adjourned - Practitioners ordered to pay costs thrown away.

Industrial Relations Act 1988, ss.170DC, 170DE, 170EA, 170EE, 347

CASES:Canceri -v- Taylor (unreported, Moore J. 11 August 1994)
Nicholson -v- Heaven & Earth Gallery Pty Limited, (unreported, Wilcox CJ., 20 September 1994).

NOLA MAREE TRICKETT -v- JEEDS PTY LTD trading as ALMA VILLAGE SUPERMARKET

No. VI814 OF 1994

Judicial Registrar:              M. D. Murphy
Place:  Melbourne
Date:  26 October 1994

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI814 of 1994

BETWEEN:

NOLA MAREE TRICKETT
Applicant

AND

JEEDS PTY LTD
trading as ALMA VILLAGE SUPERMARKET
Respondent

MINUTES OF ORDER

26 October 1994  Judicial Registrar M. D. Murphy

THE COURT ORDERS THAT:

1. the Respondent pay to the Applicant the sum of $5,844.00.

2. such payment to be made within 21 days of the date of this order;

3. Messrs Milder Elfman Szmerling Krycer Pty, the solicitors for the Respondent, pay the Applicant’s costs thrown away by reason of the adjournment of this matter on 20 October 1994.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI814 of 1994

BETWEEN:

NOLA MAREE TRICKETT
Applicant

AND

JEEDS PTY LTD
trading as ALMA VILLAGE SUPERMARKET
Respondent

REASONS FOR JUDGMENT
(Delivered Ex Tempore - Revised from Draft Transcript)

26 October 1994  Judicial Registrar M. D. Murphy

The Application:

This application is made under section 170EA of the Industrial Relations Act 1988 and the Applicant seeks in her application an order declaring that the termination of her employment by the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988. She also seeks an order for compensation for her loss of wages as a result of that termination.

The Evidence:

The Court heard evidence from the Applicant Pino Alessi.  Mr Gryngras and Mr Frank Nandappi were called by the Respondent.

The Issues:

The central issue in this application is whether or not the Applicant resigned from her position with the Respondent on 5 May 1994.  It is on this issue that there is a wide gulf between the parties.  The background to the occurrences on 5 May was that the Applicant had been employed in two different capacities with the Respondent since December 1991.  She commenced there as the manager of the diary/freezer section and subsequently went to work in the deli section.  There is a dispute between the parties as to whether or not she in fact was the joint manager of the deli section at the time of the occurrence of the events on 5 May 1994.

It is clear however, that in March of this year she was offered a position to jointly manage that section of the Respondent.  I note that in an affidavit filed by the Respondent and sworn by Lisa Pio on 12 September 1994, Lisa Pio describes herself as a deli assistant and says that she worked closely with the Applicant as a deli assistant.  The evidence of the Respondent in this matter is that in fact Lisa Pio had been appointed to the position as manager of the deli section.  The Applicant asserts that the two of them were jointly appointed to that position.

I am unable to make a finding on this matter in the absence of evidence from Lisa Pio.  At all events, the Applicant asserts that she was a good employee whilst the Respondent maintains that her work performance was only average and that her attitude was unsatisfactory.  The Respondent has led a volume of evidence about alleged comments made by the Applicant as to her attitude to work and alternative life choices which she would like to make.  The Applicant denies the comments that have been attributed to her while the Respondent’s witnesses are adamant that these matters were the subject of complaint by a number of its employees.

The Applicant did give some evidence that she was dissatisfied with the Respondent on one aspect, namely, that there had been a promise of a taxi home from work when she worked on afternoon shift which had not been met by the Respondent.  She also gave evidence that on three occasions she had asked Mr Alessi for a pay rise and he had denied that to her.  The Applicant therefore did have some grievance against the Respondent.  The question is whether as Ms Campton, Counsel for the Respondent, would assert that grievance was enough to give her motivation to resign from the Respondent on 5 May 1994.

The Events of 5 May 1994:

There seems no doubt that the usual practice within the Respondent was that individuals collected their pay from the cash office as they left work on pay day.  For the Applicant that was to be 5:00pm on 5 May.  However, at 4:30pm that day she was called to the office of the manager, Mr Alessi for a discussion.  She asserts that that discussion consisted of him raising her work performance as being poor, which she denied, and at that point he then said that he had made up her pay and was proposing to give her a week’s notice.  She then said that he changed his mind and said that she could leave immediately and he threw the pay packet across the table or the desk.

She asked him for a separation certificate which he gave.  She then collected her personal belongings and left.  The version of events by Mr Alessi is starkly different with the only common ground being that he called her to the office for a form of counselling.  He maintains that he raised with her her attitude to her employment and the fact that her comments abut her place of work and what she would prefer to be doing were causing disruption to the Respondent.

He maintains that she then said words to the effect, “Well, that is the way I am” and effectively resigned.  He then arranged to make up her termination pay and gave her a separation certificate.  As Mr Burchardt, Counsel for the Applicant indicated, in cases where oral testimony is in stark contrast and the matter falls to be determined on the credit of various witnesses, the Court looks for contemporaneous documents to support one or other version of events.

The only contemporaneous documents produced are the pay slip, Exhibit A1, and the Employment Separation Certificate, Exhibit A2.  The pay slip is curious in that it does provide for the payment of one week’s notice.  Mr Gryngras gave evidence as to why that amount was paid.  It was on the basis that she had been a good employee.  I find that explanation unsatisfactory and the more likely explanation is that of the Applicant namely, that Mr Alessi had decided to give her one week’s notice and payment in lieu thereof.

The pay slip also provides that she be paid four weeks holiday pay, in a substantial amount, and provides for various taxation deductions.  I find that the pay slip supports the Applicant’s version of events.

The Employment Separation Certificate also supports the Applicant.  The certificate is a document which is required to be tendered to the Department of Social Security to obtain unemployment benefit.  It also provides that the maker of the certificate is to complete an explanation for the termination of employment.  That explanation requires a box to be ticked with some details and those details cover both termination for unsatisfactory work performance and voluntary termination.

I find it difficult to believe that Mr Alessi ticked the wrong box. He ticked the box which indicated that the reason for the termination was her unsatisfactory work performance and he then gave as the reason:  “Losing interest in job”.  It is not the sort of mistake that a person would make, in my opinion.  If the Applicant had voluntarily resigned it seems unlikely, given her work record, that the explanation, namely losing interest in her job, would be placed on a document like this which could become a public document or may be required to be furnished in a further employment situation.

Mr Gryngras gave evidence that he believed that the Employment Separation Certificate was in effect a work report and explained it on that basis.  I do not accept that explanation but I do note that Mr Gryngras had nothing to do with the preparation of the certificate.  So the two pieces of documentary evidence do support the Applicant’s version of events.  The other consideration which supports the applicant’s version of events is the inference which the Court can draw from the failure to call relevant witnesses.

In this case I refer to Lisa Pio who was the co-worker within the delicatessen and who may have been able to give evidence as to the question of the motive of the Applicant and her work performance.  She would also have been in the position to clarify the status of the Applicant in terms of her job title at the time of her termination.  No satisfactory reason has been given as to why she was not called. The other witness who would have assisted the Respondent in relation to this matter is the person who made up the termination pay whose name was Sharon.

Sharon apparently occupied the same office as Mr Gryngras and Mr Gryngras gave evidence that he overheard the final conversation on 5 May.  His evidence on that point was relatively tentative in that he said that he was left in no doubt that she had decided to leave at the end of the conversation.  On the crucial matter as to the circumstances associated with the production of the pay slip however, his evidence was vague in the extreme.  He says that the calculations were done by Sharon and then he said they were usually done on a Wednesday night.  He said: “to the best of my knowledge, they were done that day not in the morning.”  But he also gave evidence that usually the pays are done on the Thursday morning and they are balanced.  He said:  “I am pretty sure I would have been involved in the final termination calculations” and he says:  “I think it was after the conversation between the Applicant and Mr Alessi.”

Well, if Sharon was involved and was working in his office she could not have failed, in my opinion, to have known of the circumstances associated with the production of the termination payment.  And, further, it is likely that there would have been some documentation by way of pay sheets which would have recorded the regular pays that were made up on the Thursday or the Wednesday evening and that would then have shown changed arrangements for the Applicant consequent upon, on the Respondent’s version, her resignation.  The only person who could shed light on this is Sharon and her absence has not been satisfactorily explained.

So although the credit of the Applicant was strongly tested by Ms Campton for the Respondent, in the end on the crucial issues I am prepared to accept the Applicant’s version of events. I therefore find that the Applicant did not resign on 5 May 1994 and that her employment was terminated by the Respondent on that date. It follows from this finding that I must consider whether or not the termination was in breach of Division 3 of part VIA of the Act. It is clear that the Respondent at no time gave the Applicant any proper opportunity to respond to the allegations made against her and therefore breached section 170DC. In those circumstances I have no hesitation in finding that the termination was in breach of section 170DE of the Industrial Relations Act.

Remedy:

The Applicant sought the payment of a sum of $5,844.00, being the amount that she had lost based on the wages that she would have earned with the Respondent over the period until she obtained alternative employment on 3 October, less the amount that she was paid in social security benefits. Under section 170EE(2), the Court may award compensation in such amount as the Court thinks appropriate in the event of a finding that there has been a contravention of Division 3. I have found that there was a contravention of Division 3 and I am prepared to award compensation.

Under section 170EE(3), the court is required to have regard to the remuneration that the employee would have received or would have been likely to have received if the employer had not terminated the employment. It goes on to set a maximum. Nothing in the evidence satisfies me that had it not been for the termination of the employment on 5 May 1994 the applicant would have resigned her position. On that basis I am prepared to find that she would have continued her employment and therefore the amount of compensation which I award her is the sum of $5,844.00.

I am not prepared to award any amount in respect of pain and humiliation which was referred to in Mr Bruchardt’s final address in the absence of full argument in relation to the matter and binding authority.  Indeed the evidence on that issue was minimal.

Costs:

The outstanding question is the question of costs in relation to the first day that this matter was listed.  When the matter was listed on 20 October 1994 the Respondent was not present at the commencement of the day and it appears that, through an oversight, it was not in a position to proceed that day.  I adjourned the matter to a date to be fixed.  The matter was re-listed today.

The question is whether or not the Respondent or any other party should bear the costs occasioned by the adjournment.  I have been referred to two authorities of the Court in relation to the jurisdiction of the Court to award costs.  In Canceri -v- Taylor (unreported, Moore J. 11 August 1994), the Court held that it has an inherent power to award costs and that power is constrained by section 347 of the Industrial Relations Act. That decision was referred to with approval in a later decision Nicholson -v- Heaven & Earth Gallery Pty Limited, (unreported, Wilcox CJ., 20 September 1994).  At page 6 his Honour was referring to a circumstance where a proceeding had to be adjourned because a party did not have appropriate representation and said:

Those seeking to represent parties must ensure they have a right of audience.  If they fail to do so, and thereby place the Court in the position of having to grant an adjournment in order to avoid prejudice to their client, they face a real prospect, in future, that the Court will order them personally to pay the costs incurred by the opposing party and thrown away by reason of the adjournment.  The Court has power to make costs orders:  See Canceri (Supra).

The power extends to the making of orders against third parties:  See Knight -v- F. P. Special Assets Ltd (1992) 174 CLR 178, Brent  -v- Gough (1992) 36 FCR 204, Re Wridgmont Display Homes Pty Ltd (1992) 39 FCR 193 and Oz B & S Pty Ltd -v- Elders IXL Ltd (1993) 117 ALR 128.

The limitation upon the Court’s power to award payment of costs that is imposed by section 347 of the Industrial Relations Act applied only in relation to inter-parties orders. The section has no application in relation to costs orders made in favour of, or against, third parties.

The Respondent was represented by Counsel at the Directions Hearing in this proceeding at which time the matter was listed for trial.  On the Court file is a duplicate of a letter of notification of the hearing date and indeed Ms Campton concedes that the Respondent’s solicitors were aware of the hearing date.  In view of that there is no excuse for the Respondent not appearing when this matter was listed for trial on 20 October.  It appears to the Court that the blame for that must lie on the shoulders of the Respondent’s practitioners.  The Court has power to make orders against third parties and there is nothing in the decision of the Chief Justice in Nicholson (Supra) to indicate that that does not apply to practitioners.

In those circumstances it is the Court’s view that the Respondent’s practitioners should pay the costs thrown away by reason of the adjournment on 20 October.  This Court has only limited powers to award costs inter-parties and it is clear that the business of the Court requires diligence on the part of both parties and practitioners in order that the matters are progressed expeditiously.

The Applicant was ready to proceed for trial on 20 October and the Applicant was entitled to have her trial on that date and it was only an indulgence that the matter did not proceed on that date.  The cost of that indulgence should be borne by the practitioners for the Respondent.

Orders:

The court orders that:

1. the Respondent pay to the Applicant the sum of $5,844.00.

2. such payment to be made within 21 days of the date of this order;

3. Messrs Milder Elfman Szmerling Krycer Pty, the solicitors for the Respondent, pay the Applicant’s costs thrown away by reason of the adjournment of this matter on 20 October 1994.

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar M. D. Murphy as recorded in the draft transcript and revised by the Judicial Registrar on 8 November 1994.

Associate:

Dated:  

Solicitors for the Applicant:
Counsel for the Applicant:

Mason Sier Turnbull
Mr P. Burchardt

Solicitor for the Respondent:

Counsel for the Respondent:

Messrs Milder Elfman Szmerling Krycer Pty
Ms J. Campton

Dates of Hearing:

26 October 1994

Date of Judgment:

26 October 1994