Spencer v Glaxo Wellcome Australia Ltd

[1997] IRCA 223

DECISION NO:223/97

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether there was termination at the initiative of the respondent - JURISDICTION - whether the employer and employee relationship must cease before an employee lodges her application pursuant to section 170EA of the Workplace Relations Act 1996 - VALID REASON - whether the reason or reasons for termination included the applicant’s sex or marital status

Workplace Relations Act 1996 ss 170DB, 170DE(1), 170DF(1)(f), 170EA, 170EA(3)(a), 170EB
Income Tax Assessment Act 1936

Industrial and Employee Relations Act 1994 (SA) s 105

Strachan v Liquorland (Aust) Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 6 February 1996)
Brackenridge v Toyota Motor Corporation Australia Limited (1996) 142 ALR 99
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
Wood v Bayfield Newport Hotel Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 13 March 1997)
Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154
Siagian v Sanel Pty Ltd 1 IRCR 1
APESMA v Skilled Engineering Pty Ltd 1 IRCR 106

Fryar v Systems Services Pty Ltd 1 IRCR 246

JACQUELINE SPENCER  - v -  GLAXO WELLCOME AUSTRALIA LTD

No. VI 1109 of 1997

Before:          Judicial Registrar Millane
Place:            Melbourne (heard in Warrnambool)
Date:              11 July 1997

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1109 of 1997

B E T W E E N :

JACQUELINE SPENCER
Applicant

A N D

GLAXO WELLCOME AUSTRALIA LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Millane       11 July 1997

THE COURT DECLARES THAT:

1. On 15 November 1996 the respondent terminated the employment of Jacqueline Spencer in contravention of the provisions of the Workplace Relations Act 1996.

AND THE COURT ORDERS THAT within 21 days of the date of making these orders:

1. The respondent pay to the applicant the sum of $15,000, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1109 of 1997

B E T W E E N :

JACQUELINE SPENCER
Applicant

A N D

GLAXO WELLCOME AUSTRALIA LTD
Respondent

Before:          Judicial Registrar Millane
Place:            Melbourne (heard in Warrnambool)
Date:              11 July 1997

REASONS FOR JUDGMENT

In this case the applicant seeks compensation from her former employer, the respondent. She alleges that on Friday, 15 November 1996 her employment as a laboratory assistant at the respondent’s Port Fairy operation was terminated in contravention of section 170DE(1) and section 170DF(1)(f) of the Workplace Relations Act 1996 (the Act).

For its part the respondent denies any contravention of the abovementioned provisions of the Act and asserts that there was no termination by it of the contract of employment and the employment relationship.  If unsuccessful on this preliminary point, the respondent goes further in alleging that the jurisdiction of the Court is not enlivened by the application made because the applicant continued in an altered employment arrangement for some weeks after both 15 November 1996, when her hours and days of employment were drastically altered and 26 November 1996, the date on which her application was lodged with the Australian Industrial Relations Commission.  In essence the respondent’s argument rests on the premise that the ending of the employment relationship must occur before the Court’s jurisdiction is enlivened.

Because of the preliminary jurisdictional issues the applicant was required to proceed with her case first.

THE WITNESSES

The applicant gave evidence on her own behalf.  The respondent called the following witnesses:

-Christopher David Hobson (Hobson), the respondent’s quality assurance manager;

-Brendan John Russell (Russell), the respondent’s laboratory supervisor and the person to whom the applicant reported; and

-Peter Adrian McInerney (McInerney), a laboratory technician working in the respondent’s Port Fairy laboratory.

THE EVIDENCE

One of the operations performed by the respondent at Port Fairy is the seasonal processing in its laboratory of opium poppies from Tasmania.  This involves laboratory testing for the morphine content in the poppy straw between January every year and June or later depending on the extent of the crop.  The seasonal fluctuations in the crop affect the respondent’s labour requirements in its laboratory.  The applicant had various periods of casual employment with the respondent from 1987 to 1994 during which time the regularity of her employment was interrupted by the birth of at least one of her two children.  It was common ground that from 22 February 1994 she resumed a period of regular employment in the laboratory and this first period was as a casual employee (see Exhibit A1).  By a memorandum dated 5 September 1994 (Exhibit A2) the respondent confirmed the applicant’s position as a casual employee to 31 March 1995 with a mandatory break in employment during the Christmas period.  However, at that time the respondent was then considering creating permanent positions.

By a letter dated 5 December 1995 (Exhibit A3) Hobson confirmed an offer of what was referred to as temporary employment from 15 January 1996 as a Chemical Tester Level One in the respondent’s quality assurance department reporting to Russell.  It was contemplated that this position would run until 12 July 1996, depending on the workload available, with the applicant working from 8.00am to 4.00pm on Monday, Tuesday, Thursday and Friday as well as every second weekend.  During this period of employment the applicant was paid as a permanent employee and was entitled to, amongst other things, annual leave and sick leave payments.

By August 1996 the abovementioned position altered inasmuch as Hobson notified the applicant in writing on 23 August 1996 (Exhibit A4) that from 26 August 1996 she would be employed as a temporary casual in the same position she then worked until at least 13 December 1996.  Relevantly, that further offer of employment referred to the giving of one week’s notice of termination of employment by either party.

The evidence of the applicant and Russell confirms that by September 1996, following a favourable staff appraisal, the applicant was included in a draft roster for 1997 which allocated her work essentially for the same hours and over the same period she was then working in 1996.  This is consistent with the respondent’s view that the applicant was a good and well-regarded employee.  Indeed, this is not a case about the employee’s performance or conduct, but about events beyond the control of the applicant which had a dramatic impact on her working environment and ultimately on her employment.

During the Christmas period in 1995 the applicant sent a card to a fellow employee and laboratory technician, McInerney, in which she thanked him for the help he had given her at work.  In March 1996 McInerney’s wife came across the card and telephoned the applicant at work insisting that the applicant meet her at Mrs McInerney’s house.  There was no suggestion that the two employees had anything other than a workplace friendship and working relationship.  Mrs McInerney obviously misconstrued the nature of the relationship and, despite the denials of the applicant when she met with Mrs McInerney, the latter, motivated by what could be best described as spite and revenge, indicated to the applicant that she would go to any lengths to see that the applicant lost her job.  She then telephoned the applicant’s husband who was and is still employed by the respondent in its factory area. 

The applicant’s husband did not give evidence, however, it was apparent from the evidence of all the witnesses that he is a large man with a quick temper.  The impression I gained from the witnesses is that Mr Spencer’s bad temper could lead to violence.  In this context the spiteful actions of Mrs McInerney, who held unfounded concerns about her husband’s fidelity, were the catalyst for and the cause of great personal suffering for the applicant in, at the very least, her workplace, if not her domestic environment.

It was common ground that following a telephone call from Mrs McInerney, Mr  Spencer attended the workplace armed with a baseball bat threatening to kill McInerney.  On that Friday in March 1996, there was a physical altercation between the two men in the respondent’s car park recorded on the respondent’s surveillance equipment.

Fortunately, the altercation between the two men ended without any significant injury.  There were no charges laid in respect to this incident, however, the respondent was then aware of the problem and both Russell and Hobson, when the applicant spoke to them, reassured her that her work would continue and that the respondent viewed the occurrence as a matter outside the workplace.

Given that the fight between the two employees occurred on its premises and was recorded by the respondent’s surveillance equipment, I find remarkable the respondent’s conduct in distancing itself from the event and not counselling or dealing with Mr Spencer.

It was conceded by the respondent’s witnesses that it has never raised the issue with Mr Spencer at any time since the first incident in March 1996, or since a further incident on 11 November 1996, the latter of which occurred away from the workplace but was reported to the respondent’s management by McInerney who was then seeking advice on whether he should report the incident to the police.  I accept that in the circumstances described it is likely, as suggested by the applicant’s counsel to the respondent’s witnesses, that the main reason the respondent did not take any steps to discipline Mr Spencer for his conduct at the workplace in March 1996, was because he was a rather fearsome character and the respondent was hoping that the matter would simply settle down.

In the period subsequent to the first incident and up until 11 November 1996, I accept that the relationship between the applicant and McInerney was distant but cordial and she suffered the gossip and the innuendo consequent upon the scurrilous allegations made by Mrs McInerney, but continued to share her weekly working time with McInerney who worked at the laboratory on weekdays.

I also accept the applicant’s evidence that following the first incident she felt, in her words, intimidated by McInerney’s presence.  In context I understood her to mean not that McInerney acted in an intimidatory way towards her, but that given the allegation made she was intimidated and daunted by his presence in the workplace where her behaviour vis-a-vis McInerney might lead to some further misinterpretation.  The problem at that stage had not been resolved but simply shelved with everyone resuming their work.  In making this lastmentioned observation I am not criticising the employer for not venturing too far into the domestic realms of its employees’ lives, however, some positive action on its part in March with regard to the conduct of Mr Spencer in the workplace may have resolved or clarified the parties’ position enough for the second confrontation between the two men on 11 November 1996 to have been avoided.

On Monday, 11 November 1996 the applicant was at home sick with a viral infection.  She initially spoke to Russell and indicated that on her doctor’s advice she would be unable to attend work on Monday and Tuesday.  Wednesday was her rostered day off in any event. 

On Monday evening the applicant was at home when the police attended and spoke to her husband about an alleged assault on McInerney by Mr Spencer in a car park where McInerney’s car was parked by him to go fishing . 

There was some conflict in the evidence about the sequence of telephone calls made on Wednesday, 13 November 1996 and whether McInerney also telephoned the applicant on that date telling her that Mr Spencer had assaulted him, kicked his car and scratched his fishing rod. 

On balance where there is conflict between the evidence of the applicant and the respondent’s witnesses concerning the discussions shortly prior to the alleged termination on 15 November 1996, I have accepted the applicant’s evidence as the most reliable evidence.  This is because she demonstrated a generally consistent and detailed recollection of the discussions held.  In contrast, it was conceded by the respondent’s witnesses that there had been some discussion about their evidence and the relevant dates prior to the hearing.  I infer from this that, unlike the evidence of the applicant, the evidence given by the respondent’s witnesses was a combination of actual recollection and reconstruction based on their discussions.

There was a backlog of work brought about by the applicant’s absence and in a telephone discussion with Russell on 13 November 1996, the applicant was asked by him whether she was returning to work on Thursday.  She responded by saying she was.  Their discussion turned to the more recent incident between her husband and McInerney at which time Russell informed her that the incident had been mentioned to the respondent’s management.  The applicant was then concerned that the incident had again been brought into the workplace, with the police involved, and with McInerney then considering whether he would lay charges.  Ultimately he did not, however, at that time the threat remained a real one. 

Russell transferred the applicant to Hobson at her request and they too discussed the further incident.  The applicant then expressed the view that she did not believe it was appropriate that first the incident be brought into the workplace and, secondly, the question of police charges be considered in discussions between McInerney and the respondent’s management.  It seems that on 12 November 1996 McInerney did report the incident to Hobson and a Mr Bowser and on that occasion was told that it was a matter outside the workplace and management had no right to advise McInerney on whether or not he should press police charges. 

It was agreed by Hobson that when the applicant spoke to him she was upset and distressed; raising with Hobson the question of whether she would be able to return to work and to continue to work with McInerney.  At that point in time her concern was an immediate one inasmuch as the applicant was worried about the pressing of police charges and the present need for her to return and complete the backlog of work accumulating as a result of her absence during her illness.

It was agreed by Hobson that when the applicant raised the question of whether she could work with McInerney, he suggested she take time to think about this and because he was not available on Thursday he suggested she come and see him on the following Monday, 18 November 1996.  Hobson also agreed that in the course of that discussion the applicant suggested that she attend in the afternoons and clear up the backlog.  Although he was not willing to concede that he agreed to this suggestion, which would have had the applicant working after McInerney left for the day on Thursday and Friday, Hobson did say that it was “a possibility”.  Therefore, following the discussion on Wednesday with Hobson the applicant assumed she could return to work on Thursday and Friday, possibly on an afternoon shift, and meet with Hobson on the following Monday to discuss any decision she made about her future.  That is to say, her decision about whether she continued to work with McInerney or made some alternative arrangement.

After speaking to Hobson the applicant claims that McInerney rang her.  He denied making the call, however, as indicated above I have preferred her recollection of events and I am satisfied that she had some telephone discussion with McInerney in the period following the second alleged assault, which spurred her on to return to work her usual hours on Thursday and Friday.  In that discussion she says McInerney complained to her about the circumstances of the assault.  She was angered by his call to her at home and she was, she says, prompted by this to ring Russell and tell him that she would return to work on Thursday as usual.

Hobson was not present on the Thursday when the applicant returned and worked her usual hours alongside McInerney in the laboratory.  On Friday, 15 November 1996 the applicant attended for work as usual commencing at 8.00am and working through to approximately lunch time.  That morning Russell, Hobson and Bowser met early in the morning to discuss the 1997 roster for temporary and casual staff.  One purpose in settling the roster at that stage was to identify temporary and casual staff requirements for January 1997 onwards so that people could be trained in December to perform this work.

During the abovementioned management meeting it was decided to offer the applicant weekend work only for 1997.  Hobson agreed to two propositions.  The first was that the imposition of this new arrangement for work was the respondent’s response to the applicant’s indication to Hobson on the previous Wednesday that she would find it difficult to continue working with McInerney.  The second was that the respondent had at the management meeting decided that it would be in the best interests of everyone that the applicant be removed from the weekday work and be limited to working weekends.  When the management meeting commenced at about 9.00am Hobson had not seen the applicant and I understood his evidence to be that he was not then aware that she had attended for work as usual the day before and on that very Friday morning.  It is not clear from the respondent’s witnesses’ evidence whether during that meeting Russell informed Hobson that the applicant had expressed a willingness to return to her usual working hours and had in fact resumed working those hours.

Prior to lunch time on 15 November 1996 the applicant went to see Hobson, she says to ask him what was happening and to see if it was all right for her to return to work as usual.  When she asked Hobson “... what was going on?”, it is her evidence that he told her management had decided that it would be best for everyone and better for staff morale if she did not work during the week.  The applicant also claims that Hobson explained these comments by saying that there was gossip around the workplace which had to be stopped and her removal from the laboratory where McInerney worked would solve that and improve the morale in the laboratory.  She was shocked by this turn of events and, at first, fearing that she would lose her job altogether, told Hobson that if that was what the respondent wanted she would do it. 

Hobson’s evidence is different in that he suggested that during the conversation he only recommended, and the applicant agreed, that she should work weekends for 1997.  At that time the arrangement was for her to work until 13 December 1996.  If Hobson’s evidence is accepted on these matters then his expectation was that during the month or so until the Christmas closure he expected the applicant to work alongside McInerney on weekdays and from 1997, allegedly in accordance with her wishes, she was to cease working during the week and only work on weekends.  Realistically speaking, the applicant’s distress and her belief that there may be difficulties working with McInerney were immediate issues, not ones that could be put off until late January 1997.  In my view it is more probable than not that when the applicant and Hobson discussed her work on Friday, 15 November 1996 she was talking about her immediate working situation as she had been on the previous Wednesday, but, because she had not by then had any further discussion with Hobson about any decision to change her working arrangements, she was confining her comments to the balance of the 1996 year.  Whilst Hobson said that he would have revisited the 1997 roster if the applicant had told him she wanted to continue her weekday work, I am not satisfied that this was so.  At the time the decision was made the applicant had not been consulted about what her own decision was on working in the laboratory at the same times as McInerney.  When she offered to do later shifts to avoid working alongside McInerney on the immediate Thursday and Friday, she was not then indicating that she sought to give up a substantial part of her employment and income.  At best her position was one where she was looking for some compromise to accommodate the difficult position she found herself in.

After the applicant left the meeting with Hobson she was very distressed and following the lunch break Russell came upon her in her distressed state.  At this meeting she complained to Russell about the fact that McInerney was leaving for a family weekend and she was losing her job.  Russell then understood that she was not happy with the change to her employment and he told the Court that he felt in a quandary “... because she has come to me and requested a change in the timetable and we’ve made all efforts to accommodate that change in the timetable”. 

The applicant’s evidence is that when she complained to Russell about her predicament he said there was nothing he could do about it because management had decided she would work only weekends and the rosters had been changed for 1997 to accommodate this decision.  Russell could not recall the lastmentioned comment but did say that he remembered saying that the decision had been made based on the applicant’s request and to accommodate the company’s training requirements for 1997. 

I am satisfied that at that meeting Russell’s position, whilst he was attempting to be sympathetic and console the applicant, was one which indicated to her that the company had made its decision and that was the end of the matter.  This indication dissuaded the applicant from pressing her position further with either Russell or Hobson.  Instead, she said to Russell that if that was to be the case for 1997 she may as well start straight away, which meant she would not be working the weekdays for the balance of the year to 13 December 1996 but only weekends.  It was Russell’s evidence that she said this “... in the context of being very upset and being very angry at Mr McInerney at the time”.  The applicant’s explanation for going onto shorter hours immediately was that if the company thought it was best for morale not to have her there, then she may as well finish her weekday work immediately.  She also told the Court that in accordance with her contract she believed that she was entitled to one week’s notice but was prepared to stop earlier and “... stop any grief at all with anybody”. 

In view the abovementioned evidence I am not satisfied that the respondent and, particularly Hobson, would have made any adjustments to further accommodate the applicant if Hobson had been told that the applicant was distressed and upset by what had happened to her employment.  This is not because Hobson was behaving unsympathetically but because he proceeded to make the decision concerning the longterm roster without any further consultation with the applicant, even though she had arranged to meet him for this purpose on the following Monday.  Had these unfortunate circumstances not occurred it was clearly the case that the applicant had a reasonable expectation that her regular temporary or casual employment would continue for the 1997 season in the same way it had since at least February 1994.  The respondent needed the work she was doing to be performed but it was not viable for it to create a regular afternoon shift and, therefore, the applicant needed to continue her work during the weekdays in the same laboratory area as McInerney if she worked during the week.  On Thursday, 14 and Friday, 15 November 1996 she demonstrated her preparedness to do this.  Moreover, the respondent knew and expected that the applicant would continue to work her usual days and hours for the balance of 1996.  It is reasonable to infer from this that when the respondent made its decision on 15 November 1996 in respect to the 1997 roster, it then understood that the applicant could and would work in the laboratory alongside McInerney.  Therefore, the main reason for cutting her 1997 hours and altering her days of work was to minimise the risk of further confrontation occurring between Mr Spencer and McInerney in the workplace.

In the weeks succeeding the discussion on 15 November 1996 the applicant attended for work on the weekend 23 and 24 November 1996 and on one weekend in early December following which date the factory closed for Christmas.  She was not contacted by the respondent after the last weekend worked or offered any further work thereafter.  This appears to have been as a consequence of her solicitors filing on 26 November 1996 and serving the application now before this Court.  The application is signed by the applicant who attended on her solicitors on Monday, 18 November 1996 and signed the application bearing that date.

When the applicant was cross-examined as to why she worked after signing her application I understood the answer she gave to be that she still thought that she would be employed by the respondent for 1997 but was then concerned about whether the respondent was entitled to alter her working hours in the manner in which it did.  I understood the response to mean that she would have continued working the altered hours if they had been offered to her pending the outcome of the dispute with the respondent over whether it could alter her employment as it did for the reason or reasons it did.

WAS THERE TERMINATION OF EMPLOYMENT?

In the present case from at least February 1994 the applicant was employed regularly and systematically as a casual employee with one period of permanent employment between 15 January 1996 and 26 August 1996 after which period she continued in her same employment whilst being paid at casual rates.  It was then anticipated that this further period of casual employment would last until “at least 13 December 1996 depending on the workload in the laboratory”.  Exhibit A4 shows that such employment was subject to a reduction in the hours worked “as the workload dictates ...“.  In this case it is plain that the workload played no part in the decision to reduce the applicant’s hours of work and alter the shifts she had agreed to work, bearing in mind her evidence that some months earlier she had been offered more weekend work and had refused it.

Central to his reasoning in his decision in Strachan v Liquorland (Aust) Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 6 February 1996) is Justice Moore’s view that termination of employment under the Act is consistent with a termination that has brought to an end the employment relationship. It is not intended to apply to the demotion of an employee who, as in that case, remains in employment with the same employer. The Full Court in Brackenridge v Toyota Motor Corporation Australia Limited (1996) 142 ALR 99 in determining whether the demotion of the employee who continued in employment with the same employer amounted to termination, endorsed His Honour Justice Moore’s reasoning and approach because it too interpreted the relevant Convention (see Schedule 10 to the Act) as not applying to situations where there was no actual loss of employment.

In the case before me undoubtedly there was before the hearing termination of the employment and the employment relationship, whether or not that loss of employment was causatively linked to the conduct of the respondent on 15 November 1996 and its subsequent conduct in not offering any further work after December 1996.  The two issues which emerge from the circumstances peculiar to this case are whether the termination of the employment was at the respondent’s initiative and, if it was, did the lodging of the application on 26 November 1996 prior to the cessation of the applicant’s employment in December 1996 affect the jurisdiction of the Court to hear and determine the application?  If there was no termination at the initiative of the respondent the answer to the second question is immaterial to the outcome of the proceedings. 

There is now a substantial body of case law decided in the Industrial Relations Court of Australia which deals with the meaning of the phrase “termination at the initiative of the employer”.  Relevantly, in its decision in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200 the Full Court of the Industrial Relations Court of Australia found that the termination of the employment relationship is what is comprehended by the expression “termination of employment”.  In that case the Full Court said at pages 205 and 206 of its decision that in deciding what amounts to termination at the initiative of the employer “... an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.  That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”.

The facts of the case before me lead me to the conclusion that, irrespective of the respondent’s intentions when it set about rearranging its rosters for 1997, the significant changes it proposed for the applicant’s working hours and the days upon which she could work directly or consequentially terminated the employment and the employment relationship.

In Wood v Bayfield Newport Hotel Pty Ltd (unreported, Industrial Relations Court of Australia, Moore J, 13 March 1997) His Honour Justice Moore had occasion to consider the question of whether a casual employee’s employment was terminated by the respondent when it proposed changes to the venue at which she worked and the shifts she worked. In deciding that case His Honour made the following observations at page 7 of his decision:

“Given that the proposed change in the duties of the applicant might have brought with it changes to her pattern of working hours which, in turn, might materially and adversely have affected her home life, a real issue could arise about whether the act of the employer in unilaterally proposing change constituted conduct which might inevitably lead to the applicant declining alternative employment.  Thus it might be a termination of employment at the initiative of the employer of the type considered in Mohazab v Dick Smith Electronics No.2 (1995) 62 IR 200; see also the recent helpful discussion of the relevant cases in Jackson v Elmerside Pty Ltd (unreported, Industrial Relations Court of Australia, 3 February 1997, Farrell JR).”

The employee was not successful in Wood’s case because, amongst other things, the employee’s refusal to accept the changes made was based on idiosyncrasies such as her disinclination to work with her sister-in-law and her concern about having to explain the move to customers.  It was not, therefore, the changes proposed that prompted her to leave her employment or, indeed, was it the case that she had no effective or real choice but to resign.  What is clear from the decision in Wood’s case is that there must be a real causative link between the action of the employer in altering the employment and the termination.  His Honour’s findings are also consistent with the view that the intention of the employer to retain the employee when making changes and offering alternative employment is not decisive of the question of whether there was a termination at the initiative of the employer.  In other words, as harsh as it may seem, when viewed objectively the action of a well-intentioned employer may nevertheless bring about an unintended consequence so that “... the cessation of (the) employment relationship is the probable result of the employer’s conduct” (see Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154).

When first there was discussion of changes in the applicant’s work arrangements to accommodate any difficulties she had with McInerney, the discussion was confined to altering her day shift work to afternoon shift work. Conceivably she could have continued in 1996, and had she turned her mind to 1997, continued working some twenty days each month between 8.00am and 4.00pm, rather than the four days weekend work per month she was offered.  By late Friday afternoon on 15 November 1996 Russell was well aware that the applicant was very unhappy about the dramatic alteration to her work shifts and the days offered to her and was also aware that she then characterised the unilateral changes made as a loss of her job. 

It is appropriate to record that in reaching my decision I formed the view that neither Hobson nor Russell should or could be considered as unsympathetic in their behaviour towards the applicant.  Notwithstanding this view, the actions of the respondent had the unintended effect of severely punishing the applicant for the misdeeds of others, in circumstances where the primary purpose of the change made was to improve staff morale in the laboratory.  As a general rule, an unfair action on the part of an employer does not provide a sound, defensible or well founded reason for termination.  It follows from this reasoning that the same unfair action may in some circumstances and does provide a basis for saying that the cessation of the employment relationship was the probable result of the employer’s conduct. 

Relying on the abovementioned analysis of the evidence and some of the many authorities in this Court, my finding is that there was termination at the initiative of the respondent because its actions in November and ultimately in December 1996 in not offering any further employment brought about the cessation of the employment relationship. 

It was common ground that the employment of the applicant continued beyond 15 November 1996 and ultimately beyond the date of the lodging of the application.  Even if one allows for the one week’s notice as provided for in the contract between the parties, the employment relationship subsisted until the respondent, acting on the advice of its solicitors, ceased to communicate with the applicant about any further work arrangements beyond December 1996.  As I have already noted she herself thought she would probably continue weekend work. 

Some of the earliest decisions of the Industrial Relations Court of Australia on the meaning of “termination” indicate that where, for instance, notice of termination is given by an employer then that act alone amounts to termination even though the employee may not accept it immediately (see Siagian v Sanel Pty Ltd 1 IRCR 1 and APESMA v Skilled Engineering Pty Ltd 1 IRCR 106). In many cases an employee receives written or verbal notice of termination and works for the period of notice. This is consistent with the provisions of section 170DB of the Act which provides for minimum periods of statutory notice or compensation in lieu of notice. During the period of notice worked the employment relationship subsists and the obligations and legal liabilities remain until the relationship actually ceases. However, for the purposes of the Act it is open to the employee to lodge an application and not await the conclusion of the notice period.

Section 170EA of the Act provides as follows:

“170EA(1)      A person may lodge with the Commission an application for relief in respect of termination of his or her employment.

170EA(2)       A trade union whose rules entitle it to represent the industrial interests of an employee may, on the employee’s behalf, lodge with the Commission an application for relief in respect of the termination of the employee’s employment.

170EA(3)An application under subsection (1) or (2) must be lodged:

(a)       within 14 days after the employee receives written notice of   the termination; or

(b)       within such further period as the Commission allows on an   application made during or after those 14 days.

170EA(4)       An application so lodged is to be treated by the Commission as a request to attempt to settle the matter by conciliation.

170EA(5)Unless the Commission otherwise orders, the parties to such a conciliation proceeding are:

(a)the employer and the employee concerned; and

(b)       if the application is lodged under subsection (2) - the trade   union concerned.”

As can be seen from the abovementioned section, the lodging of an application is not restricted to when the contract and the employment relationship actually cease; rather section 170EA(3)(a) states that the application must be lodged within 14 days after receipt of the written notice. The sub-section therefore contemplates that the time within which an application may be lodged is a time during which the employee may still be working with the employer but nevertheless have received notice of termination.

In his decision in Fryar v Systems Services Pty Ltd 1 IRCR 246, His Honour Justice von Doussa had occasion to consider an argument that the jurisdiction of the Industrial Commission of South Australia was not enlivened until the cessation of the employment relationship where written notice of termination was still running when the application was made. His Honour was then considering the question of whether the State Commission provided an adequate alternative remedy within the meaning of section 170EB of the Act. The section upon which the respondent in the cases involved relied was section 105 of the Industrial and Employee Relations Act 1994 (SA) which provides:

“s105(1)        If an employer dismisses an employee, the employee may,           within 14 days after the dismissal takes effect, apply to the Commission for relief under this part.”

Ultimately, His Honour concluded that section 105 is merely a procedural provision, and not one establishing the jurisdiction of the Court.  In arriving at this conclusion he compared the State provisions with those contained in the Act (as it then was) and made the following pertinent observations:

“An analogy may be drawn between the scheme of the South Australian legislation and the Act.  Under the Act this Court is established under Pt XIV, and by s 412 the Court is given jurisdiction with respect to matters arising under the Act in relation to which applications may be made to it under the Act.  Subdivision C of Div 3 of Pt VIA, headed “Remedies in respect of unlawful termination”, contains broadly similar provisions to Pt 6, and deals with the procedures and remedies to be applied in the exercise of the jurisdiction of the Court.  In Subdiv C, s 170EA is plainly a procedural section.  Section 170EA(3) prescribes a limitation period which requires that an application “must be made (a) within 14 days after the employee receives written notice of the termination; or (b) within such further period as the Court allows on an application made during or after those 14 days”.  It would be impossible to treat s 170EA(3) as the section, or as one of the sections in a scheme, that establishes the jurisdiction of the Court to hear an application under s 170EA as s 170EA(3) deals only with cases where written notice of termination is given.  It makes no provision for dismissals otherwise than on written notice.  If s 170EA(3) were a jurisdictional provision, the Court would not have jurisdiction except where written notice was given.  The proper interpretation is to treat s 170EA as a procedural provision; and in cases where an employee does not receive written notice of termination, no period of limitation is imposed.”

In the case before me the conduct of the respondent amounting to termination occurred on 15 November 1996 despite the fact that the applicant worked two weekends thereafter.  On Monday, 18 November 1996 she signed the application which was eventually lodged with the Commission on 26 November 1996 and the cessation of the employment relationship consequent upon the continuing course of conduct complained of occurred shortly thereafter. 

Keeping in mind my comments on the effect of section 170EA of the Act and His Honour Justice von Doussa’s observations set out above, I am satisfied that an application may be lodged at any time after the repudiatory act occurs subject to the fourteen days requirement where there is written notice and, subject to there being actual loss of the employment consequential upon the repudiatory conduct, I am further satisfied that the Court has jurisdiction to hear an application lodged before the applicant actually ceases work.

VALID REASON AND SECTION 170DF(1)(f)

The respondent advanced no argument seeking to establish a valid reason for this termination. This is not surprising given its preliminary argument that there was no termination. It did, however, defend the allegation made pursuant to section 170DF(1)(f) of the Act whether or not the respondent bore the burden of proof in respect to the allegation belatedly raised at hearing. I am satisfied that the respondent was not motivated by any prohibited reason or reasons when it acted as it did. On the evidence the applicant’s employment arrangements were not altered by reason of her sex, nor were they altered by reason of her marital status, the latter of which really refers to a reason connected with a person’s status in being married, single or, possibly, divorced. On one view of the facts the respondent dealt with the applicant in a discriminatory way inasmuch as by acting as it did it treated her less favourably than the other two employees when it decided to take the opportunity to improve the morale in the laboratory and reduce some of the inevitable gossip the incidents between McInerney and Mr Spencer gave rise to. In attempting to achieve this result it could have considered other employment arrangements for McInerney and Mr Spencer but did not do so. In this sense its behaviour was discriminatory. Nevertheless, I am satisfied that it was not discriminatory behaviour by reference to the prohibited reasons; namely, the applicant’s sex or marital status. Essentially, its actions are aptly characterised as being manifestly unfair and unjust.

REMEDY

The applicant now performs some child minding work having remained unemployed until approximately February 1997.  Since February 1997 that work consists of one nine hour day per week and from April 1997 in a further position, three ten hour days per week all paid at the rate of $10.00 per hour.  The applicant is also undertaking off-campus study for a Diploma of Child Care. 

Reinstatement was not pressed as a remedy by either side.  The applicant was very distressed on a number of occasions in Court whilst giving her evidence.  I am satisfied that returning her to the same employment circumstances against her express wishes, where both McInerney and her husband remain, is not an appropriate remedy in all the circumstances.  Accordingly, I find that reinstatement is impracticable. 

The Court was informed that for her weekday work the applicant received from the respondent $494.81 gross and for her weekend work she received $190.82 on Saturdays and $247.00 on Sundays.  For twenty-six weeks work on weekdays she earned $12,865.06.  She worked only two weekends each month and therefore earned only thirteen weekend payments in a twenty-six week period totalling $5,691.66.  This being so, her gross average earnings during the six month period following termination would have been $18,554.72 less any reduction in earnings attributable to the seasonal closure of the laboratory over Christmas. 

When the matter came on for hearing it was nearly six months since the termination, although there were two weekends of payments by the respondent in that period and there have been modest earnings from child minding since February 1997.  This is a case where the applicant has sought other paid employment and has suffered a significant and ongoing loss through no fault of her own.  Furthermore, she has not been paid the one week’s notice provided for in the terms of her contract.

I am satisfied that the loss of remuneration from a reasonably well paid position in Port Fairy is an ongoing one and the calculation of her actual loss exceeds the jurisdictional cap.  This being so, I propose to make an order for the sum of $15,000 which approximates the extent of my jurisdiction to compensate the applicant; recognising that in doing this any deduction by reason of her employment since February would not have any impact on this payment because her loss is ongoing. 

MINUTES OF ORDERS

THE COURT DECLARES THAT:

1. On 15 November 1996 the respondent terminated the employment of Jacqueline Spencer in contravention of the provisions of the Workplace Relations Act 1996.

AND THE COURT ORDERS THAT within 21 days of the date of making these orders:

1. The respondent pay to the applicant the sum of $15,000 less any amount payable to the Commissioner of Taxation pursuant to the IncomeTax Assessment Act 1936 and actually paid.

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

I certify that this and the preceding twenty-one (21) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.

Associate:                 
Dated:  11 July 1997

Solicitors for the Applicant:  D. Madden & Co
Counsel for the Applicant:            Mr P. Burchardt

Representatives for the Respondent:     Australian Chamber of Manufactures
Counsel for the Respondent:                   Mr B. Lacy

Date of hearing:  6 & 7 May 1997
Date of judgment:  11 July 1997