Rowe v Khodair

[1996] IRCA 137

DECISION NO:  137/96

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - Claim of UNLAWFUL TERMINATION - whether termination for a VALID REASON - HARSH, UNJUST OR UNREASONABLE TERMINATION

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170EE

KIRSTY-ANNE ROWE -V- SUZETTE KHODAIR

No. SA95/1780

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  4 APRIL 1996

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

No. SA95/1780

B E T W E E N:

KIRSTY-ANNE ROWE

Applicant

AND

SUZETTE KHODAIR

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  4 APRIL 1996

THE COURT ORDERS THAT:

1. The termination of the Applicant’s employment by the Respondent was unlawful.

1. Liberty to apply with respect to the amount of compensation payable to the Applicant.

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

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

No. SA95/1780

B E T W E E N:

KIRSTY-ANNE ROWE

Applicant

AND

SUZETTE KHODAIR

Respondent

BEFORE:                 JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  4 APRIL 1996

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that her employment was terminated unlawfully, she seeks reinstatement or compensation.

The main issue in dispute in this matter was whether the Applicant  resigned or whether the Respondent  terminated her employment. 

The Respondent is the operator of a small delicatessen business in the eastern suburbs of Adelaide.  The Applicant was employed as a part-time shop assistant from December 1994 until 24 December 1995.  At the time her employment commenced Miss McLean, a casual shop assistant who had the authority of the Respondent advised the Applicant as to the terms and conditions of her employment.  There was a dispute on the evidence as to whether the Applicant was told at that time whether she was required to work on Public Holidays.  The Applicant worked on a part-time basis for the Respondent until October 1995. She was not ever requested to work on a Public Holiday.  In October the Respondent offered her a full-time position as trainee manager on a trial basis for either 2 or 3 months.  The Applicant was keen to obtain full time employment and so accepted the position.  She was paid an amount of $400 per week however her hours varied considerably as did the spread of the hours that she worked.  The Applicant was rostered to work every day from 4 December 1995 through until 26 December 1995 with only 1 day off, on  18 December 1995 during that period.

In early December the Applicant advised the Respondent that she had commitments on  Christmas day.  There is a dispute on the  evidence as to what the Respondent’s response was in relation to that.  The Applicant gave evidence that the Respondent seemed angry but eventually agreed that she did not have to work on Christmas day.  The Respondent said that no such assent  was given.  On 19 December 1995 the Respondent put up the roster showing that the Applicant was to work on Christmas Day.  The Applicant raised the matter with the Respondent and a conversation was had between  them regarding the Applicant’s work on 21 December 1995.  The Applicant was told to think about the matter overnight.  The following day the Applicant told the Respondent she would not work on Christmas Day.  The Applicant alleges that the Respondent then gave her notice that she had until 24 December 1995 to think about it, but her employment would end on that day if she would not work on Christmas day because she was not flexible.  The Respondent denies that conversation and her evidence was to the effect that she told the Applicant a review would take place following Christmas.

On 22 December 1995 the Applicant had a conversation with Miss McLean who appeared to be trying to resolve the matter.  Miss McLean conceded during her evidence that the Applicant told her that the Respondent had sacked her.

The Applicant did not work on 23 and 24 December 1995, having seen a medical practitioner on the morning of  23 December 1995 because she was distressed.  She attended at the Respondent’s premises on  24 December 1995 to obtain her wages but was told to come back the following Wednesday. 

I have preferred the evidence of the Applicant as to conversations between her and the Respondent.  The Applicant gave her evidence in a straightforward manner and her actions were consistent with her versions of events.  On the other hand the Respondent’s evidence seemed equivocal and her demeanour in giving her evidence left me with some doubts about her honesty.

I therefore find that the Respondent did terminate the Applicant’s employment.  In my view the Respondent did not have a valid reason for the termination of the Applicant’s employment because of her refusal to work on Christmas day.  In my view the Respondent was required to advise the Applicant prior to the commencement of her work as a trainee manager that she would be required to work on Christmas day.   It seems to me even if the evidence of Miss McLean was correct as to the conversations between her and the Applicant in December 1994 given that the Applicant was never required to work on a Public Holiday between December 1994 and December 1995 then the Respondent should have made it clear to the Applicant that she would have been required to work on Public holidays in her new position.  In addition I consider the termination of the Applicant’s employment harsh, unjust and unreasonable especially in circumstances where the Applicant was required to work every day but for the termination of her employment for a period of 21 days, with only one day’s break.

I therefore find that the termination of the Applicant’s employment by the Respondent was unlawful.

Remedy

In my view  reinstatement of the Applicant in this matter is impracticable.  The Respondent’s
business is small.   At most times there would only be the Applicant and Respondent working together.  Given the Applicant’s evidence regarding disharmony in the final weeks of her employment it seems to me to be impracticable to order reinstatement.

In considering the amount of compensation payable to the Applicant it seems unlikely that the Applicant would have continued to work for the Respondent beyond a further 12 weeks given the  conflict that existed between the Applicant and the Respondent.  In my view the appropriate period for which the Applicant should be compensated would be a further 12 weeks pay.

There was evidence before me that the Applicant did unpaid work for her parents before, after and during the time she worked for the Respondent.  I accept the Applicant’s evidence that she was not paid for that work. Even if some notional value could be attached to that unpaid work, the fact that it was performed both before and during the Applicant’s full-time work for the Respondent that it cannot be taken into account in assessing the amount of compensation payable to the Applicant

It is apparent that the Applicant was paid below the appropriate award rate for the work she performed for the Respondent.  The parties will need to agree to the appropriate rate or argue what that rate should be before me.

I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.

DATE OF HEARING  :          6, 25 MARCH 1996

FOR THE APPLICANT       :          MR  PRENDERGAST

FOR THE RESPONDENT    :          MR  GROOM