Sally Jane Wilson and Kevrob

[1995] IRCA 706

Industrial Relations Court
of Australia
Tasmanian District Registry  Matter No:   TI 95/1144

Between:                 Sally Jane WILSON
  Applicant

And:  Kevrob
  Respondent

Place:  Launcestion
Date:  1 December 1995
Before:  Tomlinson JR

Reasons for decision delivered ex-tempore revised from transcript

This is an application for compensation under the Industrial Relations Act as amended for compensation allegedly arising out of an unlawful termination. The applicant, Ms Sally Jane Wilson, was born on 7 June 1974 and at the date of these proceedings is aged some 21 years. The applicant gave evidence to the Court that she began employment with the respondent, Kevrob, during October of 1992 as a casual console operator at the Mobil Service Station at Lane Park here in Launceston. At that time there was a Lesley Beck and a Graeme Lancaster who seemingly had some managerial involvement with the service station.

From all accounts the applicant did well at her work and at no stage did this Court hear any evidence that the applicant was anything other than an exemplary employee.  The applicant became a permanent employee paid at an hourly rate, receiving the sum of $530.00 gross per week or $415.85 net.  In February of 1994 the applicant attended a two-week training course run by Mobil in Melbourne and paid for by the respondent.  The purpose of the course was to enable the applicant to become the manageress of the service station and to learn the systems and methods of Mobil.

After two weeks the applicant returned to Launceston and in fact became the manageress.  As such, the applicant supervised some seven staff members, organised rosters, ordered stock, did the daily banking and drew cheques for the owner, Mr Matthew DePaoli, to sign when he visited the site from Melbourne.  On occasion the applicant would pay wages from her own moneys and then subsequently be reimbursed from respondent's moneys at a later date.  The applicant had the right to hire and fire, and the Court heard in fact that she employed some of her family members at the service station, but it is noted that nothing hangs on that evidence.

The Court heard evidence of a shooting on 8 September 1994 when a staff member was shot.  I am unable to place any weight on the incident of the shooting or on the state of security of the premises of the service station as it is my view that such is not relevant to the applicant's claim for relief under the Industrial Relations legislation.  The applicant stated that on 6 December 1994 she was in her office and that Mr DePaoli visited her and stated among other things that she was aware that he had been looking for partners to come into the service station business with him and that her job as manageress was no longer available.

In evidence-in-chief the applicant stated words to the effect that Mr DePaoli had indicated the new partner was Mr George, and that there would be future discussions concerning some hours of work out the front of the service station as a console operator.  The applicant stated that she responded, “Is that all I get?”

One week later the applicant returned, received a day’s pay due to her and requested additionally, one week’s payment in lieu of notice.  Mr George made a telephone call to Mr DePaoli and then gave her $415.85, being that one week’s pay.  In cross-examination the applicant told the court she enjoyed her job and that she did not resign.

On behalf of the respondent, the Court heard from Mr Matthew DePaoli, who stated that he was a sole proprietor of the respondent at the time in question and that prior to that he had run the business together with a Mr Lancaster.  I am unable to place much weight on that evidence.  Mr DePaoli agreed that the applicant had been an excellent employee and that he on two occasions had discussed with the applicant the possibility of her becoming an equity partner with him and contributing capital.  The witness said that on Monday 5 December, he travelled from Hobart to do his normal review of the service station business.  At that time the respondent stated he advised the applicant that her job as manager was no longer there as Mr George had become the new partner.

From evidence before the Court it was clear that at the time of the conversation, being 5 December 1995, Mr George had in fact travelled to Melbourne to undergo the managerial course offered by Mobil as agreement at that time had been reached between Mr DePaoli and Mr George to enter into partnership.  It was common ground between all parties to these proceedings that that meeting was the first time the applicant had learned Mr George had become a partner, that her position as manager was no longer available, and that the nature of her employment had changed.  It is clear the actual agreement between the two men, Messrs George and DePaoli, had been finalised some three weeks prior to that meeting with the applicant.

The Court heard no evidence that the applicant was in any way involved in those discussions nor given an opportunity as to how to deal with her future job arrangements.  It is my opinion that until that point in time the true position concerning the future employment prospects of the applicant had been actively concealed from her.

If the case before the Court had been argued on the basis of a redundancy, the obligations of the respondent would have been crystal clear.  Mr DePaoli in fact did use the word “redundancy” while giving his evidence-in-chief but in reaching my conclusions I am guided by counsel in this matter.  There is no common ground that this is a redundancy and I am of the view that it is not open for me to so find.

On behalf of the respondent the Court heard from the new partner, Mr Michael George, who confirmed the agreement for him to enter the partnership was agreed upon towards the middle to the end of November of 1994.

There was no evidence that that decision was communicated to the applicant.  The agreement was, to use the words of the witness, that he would “take over as manager”.  The witness stated he had discussions with Mr DePaoli that Ms Sally Wilson would be offered a front console position.  On December 6, Mr George went to work and his evidence was that Mr DePaoli had indicated to him that Ms Wilson had left.  Mr George did not make contact with the applicant to discuss any further work opportunities.

In considering the evidence of the employer I am at a loss to understand why Mr DePaoli did not contact the applicant after the conversation, be it either on 5 or 6 December, to further continue discussions that took place allegedly for the offer for front work concerning the console.  The witness, Mr DePaoli, in my opinion dissembled at that point and I have to say in regard to what took place in the office on that day early in December, I prefer the evidence of the applicant, Mrs Sally Wilson.  I place weight on her testimony as to what occurred.  It is clear that her services were no longer required.  There was evidence that Mr DePaoli flew to Melbourne to discuss matters with Mr George.  It was clear that in dealing with Ms Wilson it was a matter that Mr DePaoli was solely to attend to.

Having considered all the evidence before this Court it is a finding that the employer, Mr DePaoli, unlawfully terminated the applicant and that she did not resign.  From all accounts the applicant was a most excellent employee.  I do not agree with the submission on behalf of the respondent that the applicant abandoned her employment.  I agree with the submission of Mr Jones in this matter that the respondent has not provided a valid reason for the termination of the employment of the applicant, Ms Wilson.

Accordingly, it is the finding of this Court that section 170DE of the Industrial Relations Act has been breached. Further, it is a finding that reinstatement or redeployment is impracticable and, accordingly, compensation should be awarded.

I see nothing to prevent the award of the maximum amount of compensation and award to the applicant the amount of $13,780 payable by the respondent within 28 days of the date of this judgment.

I further award the additional sum of $530.00 under section 170EE(5) as it is my opinion two weeks notice payment is due to the applicant under section 170DB(2) making a total payment of $14,310 payable within 28 days of the date of this judgment.

Minutes of Order

The court orders that:

1. The respondent is to pay to the applicant the sum of $13,780.00 within 28 days of the date of this judgment.

1. The respondent is to pay to the applicant the further sum of $530.00 under section 170EE(5), within 28 days of the date of this judgment.

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

I certify that this and the four (4) previous pages are a true and accurate record of the resons for decision delivered ex-tempore, revised from transcript, of Judicial Registrar Tomlinson.

Associate        

Date:              25 January 1996

Appearances

Solicitor for the Applicant:     Mr R.Pearce

of:  Messrs Douglas & Collins

Solicitor for the Respondent:  Mr M.Daly

of:  Rae & Partners