Purtell v Bryant & May Pty Ltd

[1996] IRCA 287

DECISION NO:  287/96 

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.170DE, 170EE

PURTELL V BRYANT & MAY PTY LTD

No.SA95/1781

JUDICIAL REGISTRAR     :          LJ FARRELL
PLACE  :          ADELAIDE
DATE  :          27 JUNE 1996

IN THE INDUSTRIAL RELATIONS COURT      )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No.SA95/1781

B E T W E E N

VIVIEN CORINNE PURTELL

Applicant

AND

BRYANT & MAY PTY LTD

Respondent

MINUTES OF ORDER

BEFORE      :          JUDICIAL REGISTRAR LJ FARRELL

PLACE         :          ADELAIDE

DATE            :          27 JUNE 1996

THE COURT ORDERS THAT:

1. The Respondent pay to the Applicant the sum of $2,895 within 21 days.

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  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No.SA95/1781

B E T W E E N

VIVIEN CORINNE PURTELL

Applicant

AND

BRYANT & MAY PTY LTD

Respondent

BEFORE      :          JUDICIAL REGISTRAR LJ FARRELL
PLACE         :          ADELAIDE
DATE            :          27 JUNE 1996

REASONS FOR JUDGMENT

This is an application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claim that her employment was terminated unlawfully. She seeks compensation.

I find the facts as follows.   The Applicant was employed by the Respondent as a full-time secretary from mid 1984.   Prior to her return from her second period of maternity leave she requested that her hours be reduced so that she could manage her family responsibilities as well as continue to be employed by the Respondent.

2

From 5 November 1990 the Applicant worked 28 hours per week.   It appears both the Applicant and the Respondent regarded her as being employed on a casual basis, although on the facts before me that clearly was not so.   From late 1993 the Applicant’s hours were increased to 30 hours per week by agreement between the Applicant and her manager, Mr Binks.

In about October 1995 Mr Binks and the Applicant had some discussions about the hours of work the Applicant would perform in 1996.   The Applicant gave evidence that an agreement was reached that she would work 34 hours per week.   Mr Binks gave evidence that whilst some discussion took place that no agreement was reached.   I preferred the Applicant’s evidence regarding the discussions.   Her evidence was inherently more consistent that Mr Binks.

At about that time the Respondent entered into new arrangements that would result in an increased workload.

In late November 1995 Mr Binks asked the Applicant to work full-time from early 1996.   The Applicant subsequently (probably on 7 December 1995) agreed to work full-time.   On 14 December 1995 the Applicant told Mr Binks she had changed her mind and she would not work full-time.

A termination form was completed on that day.   The Applicant states on that form “I am very sorry to be leaving but I cannot do full-time work with small children.”   The Applicant’s last day of work was 22 December 1995.

Although at some stage during her employment with the Respondent there had been difficulties between the Applicant and Mr Binks, at the time of the termination of the Applicant’s employment those difficulties had subsided.   It is to be noted that the Applicant was a particularly efficient employee.

The Applicant argued that this was a termination of employment at the initiative of the employer.   I accept that argument.   When Mr Binks requested the Applicant to work

3

full-time he made it clear to the Applicant assumed that her employment would not continue if she refused to do so.

I refer to the decision of Justice Moore in Rheinberger v Huzley Marketing Pty Ltd (unreported, 16 April 1996)

“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.”

On the evidence before me of both the discussions in late November 1995 and the earlier discussion in or about October 1995 I find that Mr Binks was well aware of the limitations the Applicant felt herself to be under because of her family responsibilities and he expected the Applicant to refuse to work full-time.

I am satisfied on the evidence before me that for the purposes of Division VI of the Industrial Relations Act, the Applicant’s employment was terminated at the initiative of the Respondent.

In considering whether the Respondent had a valid reason for the termination of the Applicant’s employment based on it’s operational requirements, I am satisfied that it was open to the Respondent to decide that the secretarial duties that the Applicant performed should be performed on a full time basis.

However in my view the termination of the Applicant’s employment by the Respondent was harsh, unjust and unreasonable for the following reasons:

• The failure to warn the Applicant, who had been employed by the Respondent for over eleven years, well in advance that she would be required to work full time.

• The failure of the Respondent to consider any alternatives to bringing the Applicant’s employment to an end.

The Applicant does not seek reinstatement.   In my view compensation is the appropriate remedy in this matter.   The Applicant obtained employment at a higher rate of pay on 18 March 1995.

4

Between the date of termination of the Applicant’s employment and 18 March 1995, the Applicant earned approximately $2,000.   If the Applicant had worked for the Respondent during that time she would have earned $4,895.   I therefore award compensation to the Applicant in the sum of $2,895.

I certify that this and the preceding 3 pages are a true copy of my Reasons for Judgment.

DATE OF HEARING  :          21 May 1996
FOR THE APPLICANT       :          Ms D Tribe
FOR THE RESPONDENT    :          Mr B Sparreboom