Susan Fenton v Sanctum Skincare Australia Pty Ltd
[1996] IRCA 34
•14 February 1996
DECISION NO: 34/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - uncontested hearing - no VALID REASON - lack of PROCEDURAL FAIRNESS - HARSH, UNJUST OR UNREASONABLE - no complaints as to CONDUCT OR PERFORMANCE - agreement by respondent to pay expenses incurred by employee in purchasing items for use in her employment - no appearance for respondent relevant to the appropriateness of referring matter to the Commission
Industrial Relations Act 1988 ss.170DB, 170DC, 170DE, 170DE(1), 170EC,
170EE(3), 170EE(5), 376(1)(a)
SUSAN FENTON -v- SANCTUM SKINCARE AUSTRALIA PTY LTD
No. VI 4294 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 14 February 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 4294 of 1995
B E T W E E N :
SUSAN FENTON
Applicant
AND
SANCTUM SKINCARE AUSTRALIA PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 6 February 1996
THE COURT DECLARES THAT:
The termination of the employment of the applicant by the respondent contravened Division 3 Part VIA of the Industrial Relations Act 1988.
It is not appropriate to refer this proceeding in accordance with section 170EC of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT:
The respondent pay the applicant the sum of $8660.00 by way of compensation pursuant to section 170EE(3) of the Industrial Relations Act 1988.
That the respondent pay to the applicant the sum of $333.46 by way of damages pursuant to section 170EE(5) of the Industrial Relations Act 1988.
That the respondent pay to the applicant the further sum of $720.57.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 4294 of 1995
B E T W E E N :
SUSAN FENTON
Applicant
AND
SANCTUM SKINCARE AUSTRALIA PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 14 February 1996
REASONS FOR JUDGMENT
During an uncontested hearing the applicant sought compensation from the respondent, her former employer, alleging that it unlawfully terminated her employment on 26 July 1995.
The applicant was represented at hearing, there being no appearance for the respondent company; duly served with notice of the proceeding on 13 October 1995 (see Affidavit of Service sworn on 7 November 1995).
The applicant told the Court that she answered an advertisement in the Age newspaper on 7 June 1995 seeking a sales promotion consultant. She was interviewed by Steven Armstrong, the respondent’s state manager, and was engaged as a part-time sales promotion consultant working some 25¾ hours per week on Thursdays, Fridays and Saturdays at the rate of $12.95 per hour. It was alleged that she averaged some $333.46 gross per week. Her terms of employment included a travel allowance of 46.5 cents per kilometre and a sales commission of 7.5% on sales.
Essentially the applicant’s duties required her to liaise with six Myers stores in the metropolitan area doing promotion and sales work, facials and ensuring stock reserves were kept up to the appropriate levels.
The respondent is in the business of selling and promoting its organic skincare products. It was alleged by the applicant that the respondent was experiencing some difficulties in sales and had received a complaint from the Myer store at Knox City because of its failure to provide a representative for the sale of products at its store. This seems to have initiated the appointment of the applicant; one of her functions being to establish goodwill in the stores and turn around the sales figures.
The applicant claims that she achieved the goals set for her; in that she turned around the sales figures and at her weekly meetings with the state manager, Steven Armstrong, she was complimented on her performance. After some four weeks it was suggested to her that in future she might take over as a manager. This suggestion may also have been linked to the fact that Steven Armstrong was then intending to leave and establish his own business.
On about 24 July 1995 the respondent’s general manager, David Rock, met with the applicant for the first time. Prior to the meeting the applicant had arranged a staff information meeting at Eastlands and on this occasion Rock took the opportunity to conduct the promotion because by that stage Steven Armstrong had left the respondent’s employ.
After the abovementioned promotion the applicant met with Rock in the course of which meeting she reminded Rock that she had not been paid the previous week for her car allowance. She was concerned because she had booked work for the forthcoming Thursday, Friday and Saturday and wanted to clarify the position. In response she was told by Rock that he would let her know when he had decided what to do. The applicant was concerned and pointed out to Rock that she had appointments booked at Myers and needed to know whether he wished her to continue with them. Rock’s response was that he did.
During the abovementioned meeting the applicant claims that Rock was not interested in hearing from her about her sales successes and appeared to be only interested in what her assessment was of how he was received by Myers during the public information session. In any event he did arrange to meet her on the following Tuesday in order to discuss further strategies. When Tuesday arrived the applicant was telephoned my Rock who informed her that he was busy and could not make the meeting. During the conversation she indicated that the Wednesday evening was unsuitable for a meeting because it was her daughter’s birthday and it was agreed that Thursday was an appropriate time for them to get together. Notwithstanding this arrangement on Wednesday evening Rock rang the applicant at her home at 7.00pm telling her that she no longer had a job. When she queried the reason for this Rock provided some excuse to the effect that she had been seen having a cup of tea in front of one of the Myer managers in the Myer cafeteria. The applicant conceded that it was her practice to have a cup of coffee before starting work and after finishing work.
Some four to six weeks following the termination of her employment the applicant had a further discussion with Rock about the reasons for her termination at which time he informed her that he believed she was taking the termination too personally. Further he told her he had acted on his gut feeling that her employment would not work out and he always followed his gut feeling. He also informed her during this conversation that her performance had nothing to do with his decision.
It was the applicant’s evidence that on no occasion had her conduct or performance been the subject of any criticism, quite the contrary she had been led to believe that she would be promoted in recognition of her obvious skills in increasing the company’s sales. On the strength of the recommendations the applicant purchased a mobile phone, new briefcase and a suit carrier for carrying the respondent’s products at a total cost of $509. In respect to this expense the applicant alleges that Rock did inform her that the company would reimburse her. Accordingly she seeks reimbursement of these expenses in the proceedings. She also seeks $211.57 which sum represents the unpaid travel allowance as at the date of the termination. There was no notice given pursuant to s.170DB of the Industrial Relations Act 1988 (the Act) and accordingly the applicant seeks a gross sum of $333.46 for one week’s notice.
It was submitted on behalf of the applicant that there was no valid reason and therefore a breach of s.170DE(1) of the Act, moreover there was failure to comply with the procedural fairness provisions of the Act. Bearing in mind the applicant’s uncontested evidence it is clear that there has been no proof of a valid reason; further there has been a failure to afford her procedural fairness and, in view of the facts alleged, the termination must be regarded as harsh, unjust or unreasonable.
It was contended on behalf of the applicant that reinstatement was impracticable. There were a number of reasons not the least of which is that the operation is a small one and may require her to work in close contact with Rock. I have accepted that in all the circumstances reinstatement is impracticable.
On the question of compensation it appears that because of the termination the applicant, who is married with three young children, lost the confidence to seek further employment. She claims to have not taken any steps to find employment because she suffered considerable disillusionment and discouragement as a consequence of the high-handed manner in which she was treated. The applicant believes that she put a great deal of effort into her employment and that was reflected in the results the employer achieved. Accordingly, in terminating her employment the employer acted capriciously and oppressively.
The applicant’s last employment was in 1991/1992 in sales promotion for another company selling natural products, Jurilique. Indeed, she claimed to have an interest in herbal treatments and natural products. In the interval in between 1992 and 1995 she was not employed whilst bearing children. It was for this applicant particularly discouraging to attempt to return to the workforce and be treated in the manner in which she was treated. This made her reluctant to, as she puts it, “go back out there”. At the date of hearing she told the Court that in the weeks preceding the hearing she had begun to make enquiries with a view to commencing her own business, and this was done in an effort to let go of the experience she has had.
It was submitted on behalf of the applicant that the cap applicable under the Act for compensation is $8.660 representing six months’ gross wages. She contends that she had an expectation of continuing in her part-time employment and was anticipating promotion when she was terminated. Because of the treatment metered out to her by her employer and the effect this has had as a deterrent in pursuing paid employment as at the date of hearing her loss exceeded six months’ remuneration calculated from the date of the termination. Observing the applicant as I had the opportunity to do during the hearing I was inclined to accept as genuine her uncontested claim to have been deterred from venturing back to the workforce and further accepted that she has taken some considerable time to find the where-with-all to return to gainful employment or consider starting her own business. In these circumstances, I ordered on the return date the respondent to pay the applicant compensation in the sum of $8,660 pursuant to s.170EE(3) of the Act. In addition to the lastmentioned order, I made a further order that the respondent pay to the applicant the sum of $333.46 by way of damages pursuant to s.170EE(5) of the Act, and otherwise ordered by reference to the powers conferred on me by s.376(1)(a) of the Act that the sums of $720.57 being the outstanding travel allowance and the monies expended on equipment for her employment be refunded to the applicant.
At hearing the abovementioned orders were made with an indication to the applicant and her Counsel that my reasons for making the orders would be published in due course.
Further, insofar as there has been no appearance for the respondent I am satisfied that it is not appropriate to refer this matter in accordance with section 170EC of the Act.
MINUTES OF ORDERS
THE COURT DECLARES THAT:
The termination of the employment of the applicant by the respondent contravened Division 3 Part VIA of the Industrial Relations Act 1988.
It is not appropriate to refer this proceeding in accordance with section 170EC of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT:
The respondent pay the applicant the sum of $8660.00 by way of compensation pursuant to section 170EE(3) of the Industrial Relations Act 1988.
That the respondent pay to the applicant the sum of $333.46 by way of damages pursuant to section 170EE(5) of the Industrial Relations Act 1988.
That the respondent pay to the applicant the further sum of $720.57.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 14 February 1996
Solicitors for the Applicant: Ryan Carlisle Thomas
Counsel for the Applicant: Mr N. Kenyon
Respondent: No appearance
Date of hearing: 6 February 1996
Date of judgment: 14 February 1996
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