Smereczanski v Tynan Motors Country Pty Limited (A.C.N 066 499 803)
[1996] IRCA 443
•27 August 1996
DECISION NO: 443/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - PROCEDURAL FAIRNESS - COMPENSATION
Industrial Relations Act, 1988 Ss 170 DC DE EA EDA EE(2) and (3)
Nicholson -v-Heaven and Earth Gallery Pty Limited 126 ALR 223
SUZANNE CHERYL SMERECZANSKI v TYNAN MOTORS COUNTRY PTY LIMITED (A.C.N 066 499 803)
NI 1454 of 1996
Coram: LINKENBAGH JR
Place: GOULBURN
Date: 27 AUGUST 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 1454 of 1996
BETWEEN:
SUZANNE CHERYL SMERECZANSKI
Applicant
AND
TYNAN MOTORS COUNTRY PTY LIMITED (A.C.N 066 499 803)
Respondent
CORAM: Judicial Registrar LINKENBAGH
PLACE: GOULBURN
DATE: 27 AUGUST 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The name of the respondent be confirmed as Tynan Motors Country Pty Limited (A.C.N. 066 499 803);
The application of the respondent for an adjournment of these proceedings, part-heard, is refused;
The respondent is to pay the applicant compensation pursuant to the provisions of Sections 170EE(2) and (3) of the Act in the sum of $14,300
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
NEW SOUTH WALES DISTRICT REGISTRY
NI 1454 of 1996
BETWEEN:
SUZANNE CHERYL SMERECZANSKI
Applicant
AND
TYNAN MOTORS COUNTRY PTY LIMITED
(A.C.N. 066 499 803)
Respondent
CORAM: Judicial Registrar LINKENBAGH
PLACE: GOULBURN
DATE: 27 AUGUST 1996
REASONS FOR DECISION
Delivered ex tempore and revised from the transcript
This is an application pursuant to the provisions of Section 170EA of the Industrial Relations Act 1988 in which the applicant seeks a remedy arising from the termination of her employment by the respondent. That employment continued from 23 December 1994 when the company, which is the respondent to these proceedings, purchased the business from another company for which the applicant worked up to 23 December 1994. The employment terminated on 2 February 1996. The matter came before Deputy Registrar Hagan on 23 May 1996 for telephone directions when Mr Coombes appeared for the applicant and Mr Tynan, the Managing Director of the respondent, represented the respondent.
On that day the District Registrar ordered that the matter be fixed for hearing in Goulburn not before 22 August 1996 and on 3 June 1996 the parties were advised in writing by the District Registry that the matter was listed for hearing at Goulburn today. District Registrar Hagan made a further order that:
The parties produce to each other all relevant and requested documents within four weeks of today.
I am informed that the applicant made a written request at the end of July for the production of documents. There was a telephone response to the request and confirmation by the solicitor for the applicant that all documents relating to the termination of the applicant's employment were to be produced. In fact, no documents have been produced and the evidence of Mr Tynan today is that he, personally, was unaware of the request in writing or the telephone conversations subsequent to that request. There are, therefore, no documents which have been made available between the parties and no documents produced to the Court today to verify the respondent's reasons for the termination of the employment.
The matter proceeded today with oral evidence from the applicant and Mr Tynan. Mr Tynan made a request that the matter be adjourned, Part Heard, so that he could obtain the documentation and other evidence in support of his assertion that there was a valid reason for the termination of the employment. In view of the order made on 23 May and the history of the matter I refuse that application for an adjournment. The evidence is therefore complete, such as it is, and I propose to make a determination of the application on the basis of the evidence before me today.
The applicant's case is that she had not, prior to 2 February 1996, been the subject of any counselling or critical comment in relation to her performance of her duties. On that day Mr Tynan requested that she see him in a conference room and she related the conversation to the Court as:
Mr. Tynan:
"Sue, this company would like you to leave. It would be better if you left on your own accord otherwise we will have to give you the sack."
The applicant told the Court hat following those words being spoken to her she asked for a reason and was informed by Mr Tynan that:
"All the accounting records are in a mess."
She then asked Mr Tynan:
"What kind of mess?"
And the response was:
"Figures have been posted to incorrect accounts".
The applicant told the Court that Mr Tynan said further words to her along the lines that the auditors and an independent adviser were to verify the incorrect information in the accounts. The applicant then said that she had no intention of resigning from her position. She interpreted Mr Tynan's words as dismissal from her employment and she left the premises and did not return.
I note the Applicant's evidence that it was the intention of the employer to introduce a computerised accounting system from the beginning of February 1996 and that she had been attending a training course in relation to that new system. She had not been the subject of any criticism or comment in relation to her perceived ability to cope with the new system or to work with the new system and there had been nothing said to her which doubted her capacity to be able to work with the new system.
I note the applicant's evidence also that on 5 February 1996 she telephoned the senior clerk at the workplace. She was informed that a Separation Certificate which had been prepared for her indicated that the reason for the termination was: "Unsatisfactory work performance. Not suitable for duties." And it also informed her that she had left voluntarily. The applicant requested that that Separation Certificate be re-done but she has not received either the original or a replacement Certificate.
I note the applicant's evidence that she has worked in the motor vehicle sales industry for about 17 years. In this employment she had not been spoken to in relation to any matters arising out of inspections of the accounts at the respondent's business, either by the firm's Sydney accountant or by outside auditors, other than to have been given a list of items following the external audit, all of which were matters which on her evidence were attended to in the ordinary course.
I note also the applicant's evidence that her role at the workplace was to enter into the accounting system data which was provided to her by other employees. In particular, I note that she had a practice of checking with the Sales Manager the calculation of commissions due to the Sales persons prior to payment of commissions to them, on a regular basis.
Mr Tynan's evidence in relation to the conversation on 2 February was that it was in different terms to the version of the conversation given by the applicant. Mr Tynan put to the applicant that the conversation he had with her was in terms of:
"Under the circumstances you can't stay in this position."
The applicant denied there was any reference to her particular position or any suggestion that she might fulfil another position within the company. In his own evidence, Mr Tynan said that he was prepared to move the applicant to another position in the company.
I note that in his evidence, Mr. Tynan did not give any details of any particular position he had in mind. I note that Mr Tynan's view was that there was not a termination of the employment at his initiative, because the applicant left the meeting before he had reached the point of offering an alternative position within the company. I have some reservations about accepting that Mr Tynan's recollection of the conversation on 2 February is complete. Those reservations are strengthened by his agreement in cross-examination that he did not offer the alternative to the applicant, that he did not suggest the alternative to the applicant and that he did not attempt to contact her after the meeting, although he agreed that her reaction in leaving the meeting and taking her personal possessions with her from the workplace must have meant that she interpreted the events as execution of an intention on his part to terminate her employment.
The evidence from the point of view of the respondent in the context of the requirements of the provisions of the Industrial Relations Act is left wanting. The respondent is clearly in breach of Section 170DC of the Act. The reasons that the respondent asserts for the termination of this employment are to do with the applicant's discharge of her duties. Section 170DC enjoins the employer not to terminate the employment for reasons related to performance unless the employee has been given the opportunity to defend herself against the allegations or unless the employer could not reasonably be expected to give the employee that opportunity. The latter is not the case here. There was every opportunity for Mr Tynan to explain to the applicant his reasons for coming to the conclusion that she was unable to discharge her duties satisfactorily, and he did not do so.
The employer is also in breach of Section 170DE of the Act in that, on the evidence before me, there is no valid reason connected with the applicant's capacity to perform her duties which would justify the termination of her employment. The onus is on the respondent under the provisions of Section 170EDA of the Act to satisfy the Court that there were valid reasons for the termination of employment. I have no doubt that in his own mind Mr Tynan was thoroughly convinced on 2 February this year that the applicant was unsuitable for the position that she held with his company. That is, however, not enough. An employer must be able to demonstrate that his perception that an employee cannot discharge her duties properly is a reasonable perception, based in fact.
The evidence in this case is that the applicant received data prepared by other employees and entered it into the accounting system. The accuracy of her entries into the system of necessity depended upon the accuracy of the data which she received. Before I could be satisfied that whatever the shortcomings were in the final results of the accounting process could be sheeted home to the applicant's discharge of her duties and to no other cause, I would need some detailed evidence. There is not only no detailed evidence before me today, but none at all on which I could safely base any conclusion that whatever problems Mr Tynan perceived in the running of the business at Goulburn were the fault of the applicant, so as to constitute a valid reason for the termination of her employment.
The applicant is therefore entitled to a remedy. She was not expressly asked today whether she sought reinstatement to her position. I note that in her initial application which was filed on 24 February 1996 she did seek reinstatement. I have no hesitation in finding that reinstatement in all the circumstances of the case is impracticable. I say that because of the attitude exhibited by Mr Tynan in relation to his perception of the applicant's ability to perform her duties and also because of the delay which has occurred between the date of termination of the employment and the date of hearing, and I find that reinstatement is impracticable.
I propose to make an order for compensation. It may well be that there were reasons which justified the termination of this employment, or would have justified reasons for the termination of this employment in the fullness of time. However, there is no evidence of any reason before me or any facts on which I could base a conclusion along the lines of the reasoning of the Chief Justice in Nicholson v Heaven and Earth Gallery Pty Limited 126 ALR 223 that this employment would have come to conclusion sooner rather than later.
On the evidence before me, there is no reason why the applicant should not receive the maximum compensation which I am permitted to grant under the terms of Section 170EE(3). The orders therefore that I make today are:
that the name of the respondent be confirmed as Tynan Motors Country Pty Limited ( A.C.N. 066 499 803);
the application of the respondent for an adjournment of these proceedings, part-heard, is refused;
the respondent is to pay the applicant compensation pursuant to the provisions of Sections 170EE(2) and (3) of the Act in the sum of $14,300.
I certify that this and the preceding 6 pages
are a true copy of the reasons for decision of Judicial Registrar Linkenbagh as recorded in the transcript and revised by the Judicial Registrar.
Associate: Renee Cauchi
Dated: 24 September 1996
APPEARANCES
Solicitor for the applicant Mr. W Coombes Higgins and Higgins Respondent was represented by: Mr M Tynan, Managing Director Date of hearing: 27 August 1996
0
0
0