Sobevski v Cardlink Services Ltd

[1996] IRCA 295

DECISION NO:  295/96 

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination for VALID REASON  of CONDUCT AND PERFORMANCE - whether HARSH UNJUST OR UNREASONABLE - COMPENSATION- REINSTATEMENT

Industrial Relations Act 1988, ss 170EA, 170DE(1), 170DE(2)

ATHINA SOBEVSKI v CARDLINK SERVICES LTD
VI 5058 of 1995
MICHAEL VILLANUEVA v CARDLINK SERVICES LTD
VI 5092 of 1995

Before           :  PARKINSON JR
Place:  MELBOURNE
Date:  2 JULY 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5058 of 1995

B E T W E E N:

Athina SOBEVSKI and
FINANCE SECTOR UNION OF AUSTRALIA
Applicants

A N D

CARDLINK SERVICES LTD
Respondent

VI 5092 of 1995

B E T W E E N:

Michael VILLANUEVA
Applicant

A N D

CARDLINK SERVICES LTD
Respondent

MINUTES OF ORDERS

2 July 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. In matter 5092 of 1995 that the respondent reinstate the applicant to the     position in which he was employed immediately prior to the termination      of his employment and that the reinstatement take effect on and from the        date of this order.

1. That the period between the date of termination and the date of        reinstatement be treated as continuous employment for all purposes.

1. That the matter be adjourned to enable the parties to calculate in      accordance with the principles set out in these reasons for decision the amount of the remuneration lost by the applicant.

1. That the parties file within seven days of today’s date an agreed      calculation of the amount of remuneration lost by the applicant.

1. That the matter be listed on 15 July 1996 at 9.30 am for the making of        final orders as to the amount of remuneration lost by the applicant.

1. That in matter 5058 of 1995 the respondent pay to the applicant      compensation in the sum of $1061.00.

1. Time for payment is twenty one days from the date of order.

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
VICTORIA DISTRICT REGISTRY

VI 5058 of 1995

B E T W E E N:

Athina SOBEVSKI and
FINANCE SECTOR UNION OF AUSTRALIA
Applicants

A N D

CARDLINK SERVICES LTD
Respondent

VI 5092 of 1995

B E T W E E N:

Michael VILLANUEVA
Applicant

A N D

CARDLINK SERVICES LTD
Respondent

REASONS FOR DECISION

2 July 1996  PARKINSON JR

This is a decision in relation to applications made pursuant to s170EA of the Industrial Relations Act 1988. The applicants were employed by the respondent at its telephone authorisation service. They were employed as telephone operators who responded to retailer and merchant queries as to credit authorisations on various credit cards. Ms Sobevski was employed on 11 September 1994 and her employment terminated on 21 September 1995. Mr Villanueva was employed on 21 September 1991 and his employment terminated on 21 September 1995. Save for a jurisdiction argument in respect of the application of Mr Villanueva, the factual circumstances relied upon as founding the reason for the termination of the employment are substantially the same and hence the parties agreed that these proceedings be heard together. I turn first to consider the jurisdiction argument.

The respondent contended that the applicant Mr Villanueva was precluded by operation of s170EA and reg 30B of the Act from bringing these proceedings. Whilst it was conceded that he had been employed by the respondent for a period in excess of six months, it was argued that the employment could not be regarded as having been on a regular or systematic basis. The applicant’s average fortnightly roster amounted to approximately 12.7 hours per week (exhibit R5). This amount increased as an overall average because of additional hours worked at peak periods.

The evidence was that he was regularly rostered in advance for shifts in the following week.  In addition to these regularly rostered hours he was intermittently contacted to work additional hours as a result of peak work demand or to fill unexpected staff absences.  He regularly worked additional hours in school vacation times.  The evidence establishes that the average of the applicant’s hours worked over a long period of time and on a consistent basis was 12.7 hours per fortnight.  It is apparent that the applicant also took some periods of absence for holiday and other reasons.  These absences occurred by the applicant at his initiative advising the respondent that he would be unavailable to work for certain periods.  When he became available again he was placed back on the rostering schedules.  Despite these absences, the pattern of the employment is apparently a regular and ongoing one.  I am satisfied that the applicant’s employment was regular and by its rostering and scheduling was systematic.  I am also satisfied that the applicant Mr Villanueva had a reasonable expectation of ongoing employment with the respondent.  I am satisfied that he is entitled to bring this proceeding.  I turn now to the factual matters surrounding the termination of the employment of both applicants.

S170DE(1)-Background and evidentiary findings

On 29 June 1995 the respondent had invited potential clients to visit its premises to inspect its operations.  This was with a view to obtaining new business.  Prior to the inspection commencing, all operators present had been warned that they were to behave appropriately.  They were also asked to remove all reading material from the workplace consoles.  The evidence is that during the course of the visit, a supervisor, Ms Helen Marinas, was informed by another employee, Ms Sinclair, that the applicants were behaving inappropriately by dancing and making gestures, together with throwing magazines around the area, in a location which may have been visible to the visitors.  Upon this report, Ms Marinas spoke to the applicant Ms Sobevski, who denied anything had occurred.  Ms Bernadette Fanaris, a senior operator the applicants’ supervisor who was located at the applicants’ work area, indicated that she had not observed any such behaviour on the part of the applicants.  This evidence was also given in the proceedings.  It was put that it was possible that Ms Fanaris did not observe the conduct because she was working with her head below the level of the computer terminal and out of the line of vision of the applicants.  Ms Fanaris’s response to this proposition was that conduct of the degree described would have attracted her attention and been observed by her.

I accept that in view of Ms Fanaris’s location she would have observed, at least by her peripheral vision, conduct of such an extreme type alleged against Mr Villanueva. It is also unlikely in my view that she would not have observed the applicant Ms Sobevski rising from her seat and dancing or otherwise behaving in such an extreme manner in the workplace. Whilst I accept the evidence of Ms Sinclair that some conduct of note on the part of the applicants occurred that day, I do not accept that it was to the degree reported to have been observed. There are also significant discrepancies as to the date and the identity of the visitors said to have been present during the relevant day. These discrepancies are not surprising in view of the time which elapsed between the date of the incident alleged and it first being raised with the applicants. I have taken into account these discrepancies in determining the questions raised by s170DE(1) of the Act. After the initial approach by the supervisor, no further action was taken and the matter was not raised again until the date of the termination of the employment.

On 21 September 1995 a complaint was made by  Ms Sinclair as to events occurring in the workplace which she believed were being generated by the applicant Ms Sobevski as a result of the original incident on 29 June 1995.  The complaint was made to Mr Andrew Darby, the manager of the respondent.  The complaint was that Ms Sinclair was being ostracised by the applicants and others of their acquaintance as a result of having reported the incident on 29 June 1995 to a supervisor.  The instances of intimidation and hostility she referred to involved the writing of comments on her workplace console and on the footrest used by her at the workplace, and intimidating conduct in hallways, such as bumping up against her and into her deliberately.

On 21 September Mr Villanueva was called into Mr Darby’s office and informed that it had been reported to him that he and Ms Sobevski had behaved inappropriately on the occasion of 29 June during the course of the inspection.  No other matter was mentioned.  The incident was denied by Mr Villanueva who indicated that he was unable to remember the incident.  Despite the denial, the applicant was informed that as a consequence of this conduct, which had the potential to jeopardise the business of the respondent, his employment was thereby terminated.  The applicant was given no notice of termination of employment.  He was handed a letter informing him of the reasons for the termination.  That letter is Exhibit R2.  The reason given is the alleged incident on 29 June.  The applicant was required to leave the premises immediately.

The failure to remember or to recall the incident, combined with the denial by Mr Villanueva, was relied upon by the respondent as evidencing a lack of frankness on his part.  I do not accept that there is anything inconsistent with such a response in circumstances where the incident referred to was only vaguely dated or identified, and where it occurred more than three months prior.  This is particularly so when no further mention had been made of the incident in the intervening period.  The evidence is also that the supervisor did not on 29 June, the date of the alleged incident speak, directly to Mr Villanueva.  I am not satisfied in relation to the applicant Mr Villanueva that there was a valid reason for the termination of his employment.  The evidence as to his conduct on 29 June is insufficient to establish that he was engaged in conduct directly contrary to the instructions of the supervisor.  There is no evidence in these proceedings that he was in any way engaged in the conduct directed to Ms Sinclair.

On 21 September Ms Sobevski was telephoned by a supervisor and informed that her employment was terminated and that she would not be required to attend for any further work with the respondent.  Ms Sobevski was given no opportunity to discuss the issue with the respondent prior to the termination of employment.  She was given no opportunity to discuss the circumstances or events or to clarify any of the information which had been provided to the respondent.  During the course of the telephone conversation terminating her employment, no issue was put to her as to her conduct towards Ms Sinclair, and this conduct was not relied upon as founding the termination of employment.  She was not informed as to this conduct being a part of the reason for the termination of the employment.  A letter of termination of employment was sent to Ms Sobevski (exhibit R1).  The letter stated that the reason for the termination of the employment was the conduct alleged to have occurred on 29 June.  No mention was made of any other matter.  As to the conduct alleged on 29 June, I am not satisfied that the evidence establishes the fact of this conduct, nor am I satisfied that the conduct of itself was sufficiently serious to constitute a valid reason for the termination of employment.  As to the matter of her conduct towards Ms Sinclair, I am satisfied that this was one of the reasons for the termination of employment and is relied upon by the respondent as establishing that it had valid reason for the termination.

Ms Sobevski denies that she was involved in a campaign of harassment directed at Ms Sinclair.  In her evidence, whilst conceding that she had written on the footrest, she described the conduct as merely a joke.  She also denied any other involvement in the matters alleged by Ms Sinclair.  I do not accept that this is the case.  I accept the evidence of Ms Sinclair that she was being harassed by the applicant Ms Sobevski and that her workplace environment had been made uncomfortable as a result of the latter’s conduct.

I am satisfied that the applicant Ms Sobevski did engage in the conduct complained of by Ms Sinclair.  As to that conduct, I am satisfied that the respondent had valid reason arising out of it for the termination of the employment.  The conduct of Ms Sobevski was conduct directed to the discomfort of another employee and was designed to cause upset and disruption in the workplace.

I turn now to consider whether the termination of the employment of the applicant Ms Sobevski was harsh, unjust or unreasonable. The findings I make apply equally to the applicant Mr Villanueva. Notwithstanding my findings as to S170DE(1) in respect of Mr Villanueva, as a result of the necessity to take into account all of the circumstances in considering any remedy which might arise, it is appropriate to record my findings on S170DE(2) in relation to him. The events as to termination of employment took place with a reasonable degree of haste. I am satisfied that the respondent did not consider any alternative to dismissing the applicants. In the circumstances where there had been no complaints as to the applicants’ work performance and there had been no previous incidents or warnings as to their conduct, the decision to terminate the employment was in my view harsh.

The evidence satisfies me that it would have been reasonable to warn the applicants as to the matters complained of, and to advise them of the consequences of any repetition.  The imposition of the penalty of termination of employment in circumstances where there are two versions of at least one of the events referred to and relied upon, is not reasonable.  This is particularly the case when the evidence establishes that the direct line supervisors in the workplace did not see it as appropriate to take any action at the time of the incident of 29 June, and that incident took place some three months prior to the decision to terminate the employment.

The evidence is clear that neither applicant was given an opportunity to defend themselves against the allegations made.  This is particularly so in relation to the allegations as to Ms Sobevski’s conduct towards Ms Sinclair.

I am satisfied that the penalty of termination of employment imposed was harsh and in the circumstances unreasonable. The respondent failed to comply with the requirements of s170DE(2) of the Act. I am not satisfied that either applicant was given an opportunity to be heard in relation to the allegations made as to their conduct prior to the termination being effected. The respondent failed to comply with its obligations arising from s170DC of the Act.

In this proceeding both applicants seek reinstatement to the employment and an order for remuneration lost, or compensation.  I deal with each of the applicants in turn.

Mr Villanueva
In so far as Mr Villanueva is concerned, I am satisfied that an order for a remedy is appropriate and I am not satisfied that an order for reinstatement would be impracticable.  The fact that the applicant has obtained other part-time casual employment does not of itself preclude him from returning to work for the respondent.  I am also satisfied that it is appropriate that an order for lost remuneration be made in respect of this applicant.  I have determined, having regard to the wages exhibits tendered in the proceeding, that the order for remuneration lost should be calculated by reference to Mr Villanueva’s average rostered hours over the period of employment in 1995.  Reference to exhibit R4 reveals a more accurate recording of hours worked given the seasonal variations which occur in this employment.  The hourly rate to be allowed is 7.27 hours per fortnight.  There is to be deducted from this amount the amount of earnings received by him from his casual employment obtained after the date of the termination of the employment.  There was no evidence in these proceedings to suggest that these earnings would have arisen in the usual course of events even if the applicant had not had his employment terminated by the respondent.  Therefore I am satisfied that these earnings should be taken into account by deduction from remuneration payable by the respondent.  There is to be deducted from these earnings the amount of income earned by him for the period from the date of the termination of employment to the date of the order for reinstatement.  The parties are directed to calculate the amount of the remuneration lost in accordance with the matters I have set out.  The matter will be relisted for final orders as to the amount of remuneration lost.  In the event that the parties cannot agree as to the amount, the amount will be fixed by the court.

Ms Sobevski
I am satisfied having regard to the incidents in the workplace which I have found occurred between Ms Sobevski and Ms Sinclair that an order for reinstatement would be impracticable.  Whilst I am conscious of the evidence that Ms Sinclair is no longer employed by the respondent, I am of the view that to reinstate the applicant would be liable to create disruption in the workplace concerned, as I am not satisfied that such conduct would not be repeated.  Further, I am not satisfied that the applicant has either acknowledged or recognised the nature or severity of the conduct.  Therefore it would not be practicable for the applicant to return to that workplace.

In the circumstances, it is appropriate to order for an amount of compensation in recognition of the failure to accord to the applicant an opportunity to be heard in relation to the matters alleged against her.  The harshness of the penalty of termination of employment is also a matter I have taken into account.  I propose to order that the respondent pay compensation in the sum of $1061.00 being an amount equivalent to four weeks pay.  In assessing that amount of compensation I have taken into account the fact that the applicant had been employed by the respondent for a reasonable period of time, and that she was rostered on a daily basis, making herself available on a regular basis for additional hours and shifts.  But for her conduct, this pattern of employment suggests that she would have been likely to remain in the employment in the short to medium term.

I certify that this and the preceding nine (9) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:  2 July 1996

APPEARANCES

Solicitors for the applicants:  Ryan Carlisle Thomas
Counsel appearing for the applicants:                 Mr N Kenyon

Solicitors for the respondent:  Freehill Hollingdale & Page
Counsel appearing for the respondent:               Mr M McDonald

Dates of hearing:  13 & 14 May 1996