O’Brien v Cresswell Nominees
[1996] IRCA 218
•28 May 1996
DECISION NO: 218/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether termination at the initiative of the employer
Industrial Relations Act 1988 ss.170DC, 170DE(1), 170DE(2), 170EE(1)(b)(ii)
CASES:Rheinberger v Huzley Marketing Pty Ltd (unreported, Moore J., No. NI 2064R of 1995, 16 April 1996)
Mohazab v Dick Smith Electronics Pty Ltd, (unreported, Full Court of the Industrial Relations Court of Australia, No. NI 2571 of 1995, 28 November 1995)
ANDREA O’BRIEN - v - CRESSWELL NOMINEES
No. VI 5945 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 28 May 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5945 of 1995
B E T W E E N :
ANDREA O’BRIEN
Applicant
AND
CRESSWELL NOMINEES
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 28 May 1996
THE COURT DECLARES THAT:
The employment of the applicant was terminated by the respondent in contravention of Division III Part VIA of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT:
The respondent reinstate the applicant by reappointing her to the position in which she was employed immediately before the termination.
For all purposes the respondent treat the applicant as having been continuously employed by it from the date of termination to the date of reinstatement.
The respondent pay to the applicant the remuneration lost by the applicant because of the termination.
There be liberty to each party to apply to the Court on reasonable notice being given to the Court and the other other party concerning the calculation and the amount of the remuneration lost under section 170EE(1)(b)(ii) of the Industrial Relations Act 1988.
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
VI 5945 of 1995
B E T W E E N :
ANDREA O’BRIEN
Applicant
AND
CRESSWELL NOMINEES
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 28 May 1996
REASONS FOR JUDGMENT
The applicant alleges that on Saturday, 25 November 1995 her casual employment as a bistro supervisor was unlawfully terminated by the respondent employer. The application was filed on 29 November 1995 and is defended by the respondent who denies that there was termination at its initiative; alleging that the applicant failed to return to her employment on Monday, 27 November 1995 after an incident on the evening of 25 November 1995.
If unsuccessful on the preliminary point, the respondent further argues that any termination was not in contravention of Division III Part VIA of the Act.
Neither parties’ case was well prepared or well presented to the Court. For example, it was not apparent until the respondent’s closing submission that it accepted the applicant should be reinstated in the event it was unsuccessful in its defence of the proceeding. Moreover, having opened its case on the basis that the respondent wished to defend any allegation that there was a breach of the provisions of Division III Part VIA of the Act if it was found the termination was at the initiative of the respondent, it closed its case with no reference to the issues raised by section 170DE(1) and (2) of the Act, only making passing reference to matters relating to procedural fairness and the opportunity for the applicant to respond to any allegation made against her on 25 November 1995. In turn, the applicant’s solicitor also failed to address in closing submissions any contravention of the Act, apart from the resignation or abandonment issue.
Doing the best I can with the evidence called, I have concluded that the applicant has established on the balance of probabilities that there was a termination at the initiative of the respondent. My reasons for so concluding are summarised in the following paragraphs.
THE FACTS
The applicant commenced her casual employment with the respondent in February 1995 as a supervisor of the respondent’s bistro area. The respondent company operates the Penthouse Hotel at Coolaroo in Victoria. The duties of the applicant included supervising at least eight staff in the bistro and setting up and closing down the bistro area. This she did during her shifts, the hours of which the Court was told varied from week to week. By consent the applicant’s solicitor tendered in evidence a summary of pay slips and hours worked and accompanying documentation. It is apparent from these documents that the hours worked each week varied between 17 hours and 34 hours up until 30 June 1995. Using the employer’s wage records, the applicant has calculated an average gross weekly income of $339.19 over the total period worked. This calculation was accepted by the respondent.
From a management point of view, it appears that above the applicant was the assistant manager referred to throughout the hearing as John and the manager Kevin Charles McCrudden (McCrudden). All of these employees were answerable to Chris Chriscoll (Chriscoll), the licensed lessee of the hotel and a director of the respondent company. The respondent’s witnesses, McCrudden and Chriscoll, gave evidence that all relevant times only they had the authority to terminate the applicant’s employment if they were so minded. The significance of this point arises from the allegation by the applicant that on the evening of 25 November 1995 John, the assistant manager, purported to terminate her employment. John was not called to give evidence by either party. The respondent, through its witness, McCrudden, made some passing comment to the effect that the respondent did not know where John was and thought he may be in Cairns with his parents. It did not attempt to provide any explanation to the Court for its failure to call this witness, who remained in employment with the respondent after 25 November 1995; being transferred to another hotel operated in the same area by Chriscoll again working as an assistant manager. No evidence was given as to how long John remained in his employment, what became of him and what attempts, if any, were made by the respondent to contact him for the purposes of the proceeding. Notwithstanding these observations on the calling of the witness, it is apparent that despite what occurred between the applicant and John, the events occurring afterwards culminated in the termination of the applicant’s employment at the initiative of the respondent.
It was agreed that on the evening of 25 November 1995 the bistro was very busy. Graham Leslie Patterson (Patterson), who was then also employed as a supervisor in the bistro, was working on the register. He gave evidence that he saw the applicant carrying an armful of plates and as she placed them on the servery he heard her say, “Fuck, that was hot”. Despite the noise level he claims that the applicant’s statement was audible from where he was standing some ten feet away. The applicant denied swearing on that evening or at all in front of bistro patrons. It is Patterson’s evidence that as a result of comments made to him by the occupants of table two at the bistro, who claimed to have heard the applicant swear, he transmitted a complaint to John, the assistant manager. Patterson had no further part to play in what occurred subsequently other than a short encounter with the applicant some time later in the foyer area.
It is the applicant’s evidence that although she had been rostered to work between 5.30pm and 8.30pm on 25 November 1995, she in fact started at 5.00pm and on that evening was expecting to finish at midnight. The bistro was particularly busy on that night and it was her view that more than 300 people were dining on that evening. The respondent contests this with allegations that the numbers were something between 150 and 170 diners. What is agreed, however, is that it was a busy night.
The applicant recalled that at approximately 9.15pm she was called out of the bistro by John and told by him to leave and that she would be called when she was required. She immediately asked whether she was sacked to which he responded, yes. Her next question was on whose authority he was sacking her and he replied, Kevin’s. When she asked why, she was told that she was being sacked for swearing in front of customers who had complained about this incident. She alleges that John refused to tell her who made the complaint or elaborate any further. She then insisted on seeing McCrudden and, because she entered the bistro and went from table to table asking the customers who had complained, she was told by John that she was barred from the bistro and gaming room area; being required to wait in the foyer area to see McCrudden. The applicant claims that she had returned to the bistro to try and find the customers who had complained, in her words, “Because I could apologise if I did do it”.
The applicant denied swearing in front of customers on any occasion, yet accepted that there was a possibility that she and others swore in the kitchen area. McCrudden when giving his evidence also accepted that employees from time to time swore in the kitchen area, nevertheless this behaviour was not condoned in front of customers. Both he and Chriscoll readily accepted that the accusation of swearing made against the applicant on 25 November 1995 was not, “a hanging offence”. In other words, they both accepted that her employment would have continued beyond that date with a warning but for the events which took place subsequently.
Having been told to remain in the foyer area to await an audience with McCrudden, the applicant again encountered Patterson. It was her evidence that there was a conversation with Patterson in which she told him that she had been sacked because of a complaint of swearing and she was then waiting to see McCrudden. The applicant recalls that Patterson responded by telling her that such an allegation was ridiculous because he had not heard anything.
Patterson no longer works for the respondent having commenced employment as a truck driver from December 1995. Prior to that, however, he was employed by the respondent, reaching the position of supervisor of the bistro area along with the applicant.
Apart from receiving the complaint and having the customers identify the person whom they say they heard swearing, Patterson’s evidence was that when he encountered the applicant in the foyer he was anxious that she not know he had “dobbed her in”. In his words, he was “trying to brown-nose her”. I took his evidence to mean that he accepted that he led the applicant to believe that he had not heard her swearing and had no part in telling management this because he wanted to maintain his working relationship with her. Patterson also recalled the applicant telling him that she had been asked to go home and that security had been instructed to prevent her from entering the bistro and gaming room areas. Patterson accepted that the applicant could have said to him that John had sacked her and that she was then waiting to see McCrudden about this incident. This concession was important because of what the applicant claims she told Patterson; tending as it does to support her version of events.
Dealing only with the evidence of the applicant and Patterson,I am satisfied that it is more probable than not that the applicant did swear on the occasion alleged in the circumstances described by Patterson. It is her uncontradicted evidence that she was then told by the assistant manager, John, that she had been sacked. Whether or not he had authority to do this is not decisive of the issue of whether there was termination at the initiative of the employer because the applicant did not accept his directive and insisted on seeing John’s superior, McCrudden.
The applicant gave evidence that when she went to see McCrudden a number of matters were discussed. First she asked to speak to McCrudden without John being present. This was presumably because she had a number of things she wished to say about John to McCrudden. This request was refused and according to both the applicant and McCrudden, John remained during the course of the discussion. The applicant claims that she then questioned McCrudden on why he had not told her himself that she was sacked. She did not tell the Court what McCrudden’s response was to this question. The applicant further claimed that she was told by McCrudden that she would have to wait until the following Wednesday to receive her wages which was the day of the week upon which employees were paid. The applicant strenuously denied being told at any time what she is alleged to have said in the hearing of the respondent’s customers. She further denies receiving any written or verbal warnings, much less counselling, concerning her job performance or conduct on any earlier occasions. She told the Court that the interview ended after an acrimonious exchange between her and John, followed by a statement made by her to the effect that she would return on the following Monday to speak to Chriscoll. I understood from this evidence that the applicant was unhappy about being dismissed and John’s part in this; intending to take the matter further with Chriscoll.
McCrudden’s evidence conflicted with that given by the applicant in a number of significant ways. Ultimately, I have accepted the applicant’s evidence in preference to that given by McCrudden because of a number of inconsistencies in his evidence and the improbability of some of the matters alleged by him.
For instance, McCrudden claimed to have spoken to the customers who complained after John came to see him to inform him of the complaint. However, subsequently he told the Court that John informed him the customers left after the applicant entered the bistro and moved from table to table trying, as she told the Court, to ascertain who had complained and what the complaint was. If anything, her actions are consistent with a desire to find out precisely what had been said by her and who had complained. According to McCrudden the applicant’s behaviour led to her being barred from the customer areas and being confined to the foyer area whilst she waited to see him. On this evidence, it is unlikely that McCrudden ever dealt directly with the complaint in the manner in which he suggests. McCrudden told the Court that at the meeting in the office with the applicant, the applicant was told that she should not swear in front of customers and the details of the complaint were spelt out. According to McCrudden her response was that she had sworn in the heat of the moment. Because the customers were irate McCrudden deemed it appropriate to ask the applicant to finish up her shift that night and return on Monday to see both him and Chriscoll. Apparently this arrangement was made because McCrudden intended to, in his words, “keep the peace with the customers” and to provide the applicant with a formal written warning. These reasons were not given to the applicant. If, as is alleged by McCrudden, the customers had left by the time of the interview because of the applicant’s actions, it was hardly necessary to terminate her shift early on that evening in order to pacify those customers. Sending her home well before the end of the shift is consistent with a desire to terminate her employment in all the circumstances.
In attempting to show that it had no intention of terminating the applicant’s employment on that Saturday evening, the respondent sought to rely on a typed warning signed by McCrudden and dated 27 November 1995, which is the Monday following the incident with the applicant.
The warning states:
“To Andrea O’Brien.
This is a final warning, it is duly noted that your language whilst working in the Bistro on Saturday 25/11/95 offended certain patrons. We will not tolerate such behaviour of staff members. Previously we have given you three verbal warnings regarding your attitude and language towards patrons. If your behaviour does not change we will be forced to take other measures.
Manager.”
In cross-examining the applicant, no matters were put to her concerning any previous conduct or warnings. McCrudden gave evidence that the reference to the three verbal warnings regarding the applicant’s attitude and language towards patrons was a reference to three specific incidence. The first was an allegation that the applicant had on one occasion snatched a meal from in front of an Asian customer; abusing the man for having the wrong meal. McCrudden alleged that he took the applicant aside and instructed her that this was no way to deal with the customer. There was no complaint from the customer; nor was there any evidence given by McCrudden of what the warning was, if any.
The second occasion allegedly related to the applicant’s habit, in McCrudden’s words, of yelling at staff from one side of the bistro to the other. This, McCrudden alleged, required him to instruct the applicant to walk across to address staff members, rather than yell. Again, there was no evidence of any specific warning given.
The third occasion referred to in the written warning was one where McCrudden allegedly told the applicant that the hotel was not a creche and instructed her not to bring her daughter and son to the hotel to play in the facility provided for patrons’ children.
In addition to the abovementioned matters referred to in McCrudden’s evidence-in-chief, in cross-examination he also alluded to an occasion some weeks earlier in which he alleged he heard the applicant say, “Oh, fuck”.
None of the abovementioned matters were canvassed with the applicant in cross-examination. Moreover, the three so-called warnings relied on by McCrudden obviously had nothing to do with swearing in front of patrons. Even if the Court accepted McCrudden’s evidence, it contained no element of proper warning given in the sense that the applicant was formally on notice that she was being warned vis-a-vis her employment with the respondent.
The document relied on by the respondent was never given to the applicant who, despite her threat to return on the following Monday to speak to Chriscoll, did not return, instead requesting a fellow employee to obtain a print-out of her wages received to date for the purpose of presenting this to the Department of Social Security.
The applicant denied asking for payment in cash of her wages. Rather she alleges that she attended another employee’s home on the Monday afternoon after receiving a call from that employee to collect her wages, amounting to a cash payment of $263.00. The respondent claimed that the reason for the wages being made up early and being forwarded to the applicant via another employee was because the applicant made this request through the other employee. The other employee named Megan was not called to give evidence. However, if I accept that the applicant had been told that she would be paid on the following Wednesday, being the usual day for payment of wages, the payment of her wages on the Monday and the failure to give the written warning to the applicant or contact her to ascertain when she was returning are further actions consistent with a desire on the part of the respondent to bring the applicant’s employment to an end.
Bearing the abovementioned matters in mind as well as the other matters already canvassed, I am of the view that the written warning was prepared in an attempt by the respondent to shore up its position in this proceeding. In his recent decision in Rheinberger v Huzley Marketing Pty Ltd (unreported, No. NI 2064R of 1995, 16 April 1996), Justice Moore explained the findings of the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd, (unreported, No. NI 2571 of 1995, 28 November 1995) in the following way:
“... it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”
Taking an overview of the facts of this case I find that the cessation of the applicant’s employment was the probable result of the conduct of the employer and, in particular, the actions of John and McCrudden.
Accordingly, for the purposes of the Act there was termination at the respondent’s initiative. Although there was a half-hearted attempt to justify termination, I find that the respondent has failed to discharge its burden of proof in this regard. It also failed on the evidence to act in a way that was procedurally fair in providing the applicant with proper details of the complaint made and an adequate opportunity to explain her conduct. Because of this lastmentioned omission, the respondent has contravened section 170DC of the Act.
REMEDY
At the conclusion of the proceeding the respondent indicated to the Court that reinstatement was an appropriate remedy if the Court made a finding against the respondent. This presumably envisaged some adjustment to lost remuneration in recognition of the fact that the applicant has been unwell and unable to work since 5 March 1996. The applicant gave evidence that from 5 March 1996 she has suffered from shingles and because of this she is unable to accept employment before late May. Since termination she has been paid a sum of $2,166.12 gross working at the Moonee Valley Race Club on Saturday evenings only. She appears to have made the choice to work less hours because, as a single parent, it has allowed her more time with her two children. The applicant expressed the view that she would be uncomfortable returning to work with the respondent and particularly McCrudden to whom she did not feel she could speak about her work problems.
Notwithstanding the difficulties the applicant may perceive in working with McCrudden again, it does appear that the assistant manager with whom she had conflict is now no longer working at the hotel.
In considering whether reinstatement is impracticable and taking into account the circumstances presented to the Court, I am not satisfied that the relationship between the employer and the employee is irretrievable and that it would be impracticable to reinstate this woman to her former employment. Clearly as a casual employee it is up to the applicant to decide whether or not in the future she wishes to work less hours with the respondent in order to spend more time with her children. In considering the amount of money to be paid by way of lost remuneration it is appropriate to take into account both the monies received from the Moonee Valley Race Club and the period of incapacity for work from 5 March 1996 for some twelve weeks.
On the evidence before the Court the parties have accepted that $339.19 gross per week is the sum to be used to calculate her entitlements. Insofar as lost remuneration must be calculated from 26 November 1995 then it should be paid for the period to 5 March 1996 less both the sum of $2,166.12 gross received from the Moonee Valley Race Club and any tax payable by the employer on the gross figure as calculated.
MINUTES OF ORDERS
THE COURT DECLARES THAT:
The employment of the applicant was terminated by the respondent in contravention of Division III Part VIA of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT:
The respondent reinstate the applicant by reappointing her to the position in which she was employed immediately before the termination.
For all purposes the respondent treat the applicant as having been continuously employed by it from the date of termination to the date of reinstatement.
The respondent pay to the applicant the remuneration lost by the applicant because of the termination.
There be liberty to each party to apply to the Court on reasonable notice being given to the Court and the other other party concerning the calculation and the amount of the remuneration lost under section 170EE(1)(b)(ii) of the Industrial Relations Act 1988.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate: ........ ........ ........ ........ .....
Dated: 28 May 1996
Solicitors for the Applicant: Gill, Kane & Brophy
Appearing for the Applicant: Mr P. Holding
Solicitors for the Respondent: Australian Hotels Association
Appearing for the Respondent: Ms S. Stonier
Date of hearing: 6 May 1996
Date of judgment: 28 May 1996
0
0
0