Susan Hallmond and Joseph Matoki

[1994] IRCA 182

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

NO. QI 171/94

BETWEEN:
  SUSAN HALLMOND

Applicant

AND:
  JOSEPH MATOKI

Respondent

REASONS FOR JUDGMENT

BOULTON J.R.

Ms. Hallmond (“the applicant”) has brought proceedings seeking an order declaring the termination by the respondent of his employment of her to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988 (“the Act”), and consequential orders.

It is common ground that in March 1994 the applicant, aged 21, commenced employment as a console operator with the respondent at

-2-

his Ampol service station at Kingston, a southern suburb of Brisbane.  She was employed under the terms of the Vehicle Industry Repair Service and Retail Award, a federal award.  Her employment ceased on 14 July 1994. 

The main contest at trial was the circumstances in which she came to cease her employment.  The applicant’s case was that she was summarily dismissed, while the respondent contended that she left of her own accord, having refused to perform other duties offered to her instead of those as a console operator.  Counsel for the respondent appeared  to be relying also on an alternative stance, namely that if it were found that the applicant had been sacked, there was a valid reason or reasons connected with her capacity or conduct or based on the operational requirements of the respondent’s undertaking for her termination.

The witnesses who gave evidence were the applicant and a Ms. Sheppard on the one hand, and the respondent on the other.  While I accept the evidence of the applicant and her witness in preference to that of the respondent, I did not find any of the witnesses to be totally credible. 

-3-

My findings are as follows.  At about 1 pm on 13 July 1994, right at the end of the applicant’s shift, she had a “runner”, namely a customer who filled his or her vehicle with petrol and left without paying.  The applicant failed to get the registration number of the vehicle.  The next day the respondent spoke to her on at least 2 occasions about the “runner”.  The respondent appeared to want the applicant to pay for the price of the petrol taken ($43.00).  Eventually the applicant agreed but wanted a receipt to read that she had paid for a “runner”.  The respondent demonstrated an act of taking money out of the till, suggesting that perhaps that was what the applicant had done.  Upon the applicant’s asking the respondent if he were accusing her (of stealing), the respondent sacked her.

The applicant was paid up to the date of termination, but received no payment in lieu of notice.

The respondent provided the applicant with an Employment Separation Certificate (ex. A2).  Contained therein were assertions that the applicant’s employment was terminated due to shortage of work, and limited funding for staff.  I accept the applicant in her denial that it was she who asked for these reasons to appear on the certificate.

-4-

During the trial it was put to the applicant that during the course of her employment she had had to be spoken to by the respondent about her till being out, and missing cigarettes.  I am of the view that the performance of her duties was not as unsatisfactory as the respondent would have me believe.  I do, however, have reservations about the applicant’s efficiency and general attitude towards her then employer.

The respondent called no satisfactory evidence in support of the alternative proposition of limited funding being the reason for the applicant’s ceasing to be employed by him.

In the circumstances the respondent has not proved that there was a valid reason or reasons of the sort referred to in ss. 170DE(1) of the Act for his termination of the applicant’s employment. The respondent has breached para. 170DB(1)(a) and ss. 170DE(1) of the Act. I make the declaration sought.

Following her sacking the applicant gained other employment as a part time console operator with Caltex, on 10 August 1994.  She held this until 23 October 1994, when she gained full time employment as a console operator which employment she had at trial.

-5-

The applicant’s average gross weekly pay while employed by the respondent was about $476.00.  Her level of earnings with Caltex, in the period 10 August 1994 to 23 October 1994 was less than with the respondent (about $350.00 gross per week).  In her current employment she earns at about the level she earned while with the respondent.

For contravention of para. 170DB(1)(a), I assess damages in the sum of $476.00.

I regard the sum of $2,300.00 as being appropriate compensation for the contravention of ss.170DE(1). In my view this sum makes adequate allowance for the items of loss urged upon me. It incorporates some minor discounting of the sum a strictly mathematical approach would produce, in view of the reservations previously expressed and their impact on the likelihood of the applicant’s having had continuous full time employment since 14 July 1994, had the incident of that date not occurred.

The orders that I make are that:

1. the application be allowed.

-6-

1. the respondent pay to the applicant the sum of $476.00 damages.

1. the respondent pay to the applicant the sum of $2,300.00 compensation.

1. payment of the sums referred to in paras. 2 and 3 hereof be made within 21 days of the date of these orders.

I certify that this and the  FIVE (5) preceding pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.

........ ........ ........ ........ ........ ........ ....
Judicial Registrar

DATED:        13 December 1994     

Solicitor appearing for the applicant:  Mr. Reid
  of Foley & Eardley    

-7-

Counsel for the respondent:  Mr. C. Wilson

Solicitors for the respondent:  McCarthy & Holzberger        

Date of hearing:  1 December, 1994      
Date of judgment:                  13 December 1994