Susan Jayne Lyness and Clodock Pty Ltd

[1994] IRCA 91

INDUSTRIAL RELATIONS COURT

OF AUSTRALIA  No NI 158 of 1994
NEW SOUTH WALES DISTRICT REGISTRY

BETWEEN:

Susan Jayne LYNESS
Applicant

AND:

CLODOCK PTY LTD
Respondent

MINUTES OF ORDER

3 November 1994   TOMLINSON JR

THE COURT ORDERS THAT

1. The respondent pay to the applicant the sum of $5,000.00 within 21 days of the date of this judgment.

NOTE  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  No NI 158 of 1994
NEW SOUTH WALES DISTRICT REGISTRY

BETWEEN:

Susan Jayne LYNESS
Applicant

AND:

CLODOCK PTY LTD
Respondent

Reasons for Judgement

3 November 1994
TOMLINSON JR

This is an application under Section 170 EA of the Industrial Relations Act 1988(“the Act”) wherein the following relief is sought:

1.a Declaration that the termination of employment contravened Division 3 of Part VIA of the Act (part of this claim seemingly crossed out in error).

2.      compensation in the sum of $21,436.46.

3.      such further relief as deemed fit and proper.

The applicant was employed as a hotel Duty Manager by the respondent at a hotel named “The Nags Head” at Glebe, in Sydney.  From all accounts the hotel was both successful and profitable and had recently won awards for excellence. 

This application is dated 20 April 1994 and the matter was dealt with at a Directions Hearing on 8 September 1994 when it was fixed for Hearing on 10 September 1994 before a Judicial Registrar.  At the commencement of the hearing of the matter the solicitor for the respondent sought an adjournment on the basis that two of his three witnesses were not available.  The respondent filed in Court an affidavit executed by Ms Lisa Anderson, dated 7 October 1994, wherein it was stated she was the Restaurant Manager at the respondent’s hotel, that she had been aware of the hearing date of the matter before the Court but that she had been called away urgently from Sydney on a personal family matter and would not be available until 11 October 1994.  The Court was not specifically advised as to the availability of the third witness, Mr Leyden, who it appears had left the employ of the respondent and who is currently worked for a suburban hotel in Sydney.

The applicant opposed the application of the respondent and stated she had complied with all requirements in order to bring the matter before the Court.

The application of the respondent was disallowed.  In support of that ruling the case of Mahnken and Saunders Logging Pty Limited (No NI 109 of 1994) was followed.  That was a decision of Northrop J handed down in Hobart on 30 August 1994 where His Honour stated inter alia:

“I should indicate also, as a matter of information to those who are interested in this area, that the practice of the Court of cases of this kind where a certificate is given by the Industrial Relations Commission that no settlement has been reached is that the matter should be listed for hearing as speedily as possible after that certificate has been given.”

Additionally the Court relied on a second decision of Northrop J in the matter of Kerry Ann Keating and Teico Investments Pty Ltd (No VI 281 of 1994) handed down on Melbourne on 14 September where His Honour stated:

“Any person who is a party to litigation in which a date has been fixed for the hearing of the trial of that litigation always faces a dilemma.  If that person waits until the morning of the trial date and then seeks an adjournment and the application is refused, that person must be in a position to proceed with the hearing of the trial.”

It was noted that the applicant was represented by an Industrial Relations Consultant and that such a person did not fall within the category of those class of persons entitled to appear under Section 469 of Part XIV of Division 8 of the Act.

The Court heard argument on the matter and noted that the applicant was due in early November to give birth to her second child and that the locus standi of the representative of the applicant had not been raised in any of the three previous proceedings before the Court.  Accordingly the Court determined that to request the applicant on the morning of the hearing to either represent herself or obtain fresh representation would be patently unfair .

In the hearing of the claim for compensation the Court heard evidence from:

• Mrs Susan Jayne Lyness, the applicant.

• Mr. Patrick George Massey Deck, the manager and part owner of the respondent hotel.

In her evidence in chief the applicant referred to the fact that she had worked for Mr. Patrick Deck for 6 years from 1981 until 1986 when she left his employ to have her first child.  After the birth the applicant did not work for some two years.  From all accounts the relationship between the applicant and Mr Deck was friendly and one of mutual respect.  It was common ground between the parties that the applicant was employed for a five week period commencing 1 March 1994 as a Duty Manager at the Nags Head Hotel.  The responsibilities of a Duty Manager are clear and precise.  The Court heard conflicting accounts as to whether the applicant received a specific job description from the respondent but it is noted that during the hearing the applicant provided her own job description to the Court which was marked Exhibit “E”.  In cross-examination Mr. Deck agreed with nearly all of the duties outlined by the applicant in her document as being her responsibilities as the Duty Manager.  I do not find the parameters of the responsibilities of the applicant as a hotel Duty Manager for the respondent to be an issue in these proceedings.  It is noted however that Attachment A of the Affidavit of the applicant dated 20 April 1994 the applicant has supplied the respondent’s “Offer of Employment” where it is stated inter alia:

“DUTIES....Based on a Job description supplied as a guideline only, and in additional to such any other duties deemed reasonable or necessary by the Employer.”

Having considered all the information before the Court I am of the view that a written Job Description would have been supplied to the applicant by the respondent and further that the applicant was aware that had she stayed employed by the respondent when she departed to visit her parents in England she would have received only one week’s salary.

The Court heard conflicting accounts as to the chain of events which took place during the course of the employment.  Most of these events are not in my opinion relevant to the issue of unlawful termination and so it is not proposed to deal with that conflicting evidence.

It was however agreed that Mr. Patrick Deck had personally contacted the applicant in February of 1994 and asked her to come and work for him as a Duty Manager.  Mr Deck was aware at the time that the applicant was employed elsewhere and that accordingly he must have know the applicant gave up existing work opportunities to accept employment with the respondent.  At the time of discussing employment with the applicant it seems Mr. Deck was also aware that the applicant wished to return to England for a short while in September and visit her parents. This was not a bar to Mr Deck offering employment to the applicant.

In the “Offer of  Employment” provided to the applicant under the heading “Annual Leave” it states:

“employees may not take paid leave until the qualifying period of continuous service has been completed (3 months equals one week)”

Accordingly it is clear that if the applicant had stayed in continuous employment she would have only been entitled to one week’s holiday pay from the respondent.

The applicant stated that at the time Mr. Deck contacted her she was employed with a firm and worked at the University of New South Wales involved with security.  There was no evidence placed before the Court as to the salary the applicant was receiving from this position, the name of the organisation with which she was employed, nor of her job prospects generally.  After her termination the applicant contacted her old employer in an attempt to gain re-employment but was unsuccessful.

Suffice it to say that shortly after the applicant commenced employment it appeared that both parties experienced certain dissatisfactions.  It is noted that in his Statement of Response Mr Deck stated that the true reason for dismissal was due to overall poor work performance.  In giving evidence to the Court the applicant stated one of her main dissatisfactions was that there was insufficient staff rostered on to cope with the volume of trade and so she would telephone casual staff and request they come in to work.  The respondent stated that on occasions he visited the hotel when the applicant was in charge and found there were too many casual staff not gainfully employed as the applicant had incorrectly called more staff in.  It was common ground that the respondent did not advise or warn the applicant that if this work practice of hers continued that it could be considered a threat to her continued employment.

The applicant conceded on occasions there had been lapses in her performance of her duties but she was of the view these were minor and it was common ground between the parties that the applicant did not receive any caution from the respondent arising out of these lapses.

The applicant stated she made several suggestions as to the efficient running and management of the hotel at the regular Monday staff meetings and it appeared to the Court that she exhibited a professional attitude towards her job.  There was no evidence presented to the Court that after these Monday meetings that the respondent took the applicant aside and advised her personally of any employment deficiencies she may have had.

The events which led to the making of an application under the Act in the words of the applicant were as follows:

“Patrick Deck employed me and I was to report to him as well as the manager.  The way I was terminated was very unjust, unfair and unprofessional  I will now state how I was dismissed;

a)I rang Mathew (the Manager) at 10.00 am on 11/4/94 to ask if there was a managers meeting that afternoon as it was my day off.   Mathew said he was busy and could he ring me back in half an hour.  (I thought this was strange as he just had to say yes or no).

b)He rang back about 1 hour later and said ‘there were a few problems’  He continued.

He said: I had missed a few things on Saturday......

He then said that things are just working out.  I was flabbergasted and said “What are you trying to tell me Mathew.”  He said “It’s not a good idea for you to work here any more.”  I said, “So you don’t want me to come in again.  He said  “no”  I said “well if that’s (sic) your decision there is nothing I can do.  I said that “could I have a letter saying I have worked at the Nag’s Head;  He said,  yes, I could pick it up or I could send it to you.  I asked him to send it to me.”

The applicant stated that after this conversation with Mathew she had tried to telephone Mr Deck on more that one occasion and that she had not been able to speak to him.  In contra-distinction to this Mr Deck stated that he had been unhappy with the work performance of the applicant and that the last straw occurred when he learned that the applicant had criticised management to other members of staff.  As a result of this Mr Deck stated that on 11 April 1994 he made the decision to terminate the employment of the applicant and he instructed the manager Mathew to telephone the applicant to request that she come in to the hotel for that specific purpose.  Mr Deck stated that as a result of that request by Mathew to come in to the hotel Mathew advised him that the applicant then resigned and that in his opinion she did so as a result of being requested to come in.

On behalf of the applicant it was stated that these series of events formed the basis of the application to the Court. Section 170 DC states an employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made. In the case before the Court I find that this opportunity was not afforded to the applicant and that a breach of that section of the Act has occurred.

Section 170 DE states an employer must not terminate an employee’s employment unless there is a valid reason. Section 170 DE (2) states a reason is not valid if, having regard to the employee’s capacity and conduct, the termination is harsh unjust or unreasonable. In the circumstances of the matter before the Court I am of the view the termination contravened that section of the Act and was harsh and unjust.

Mr Deck in his evidence stated that the applicant needed to be shown the various routines on more than one occasion and although these meetings took the form of re-training sessions. Mr Deck stated he was of the view that the applicant was an intelligent person and she should have been able to surmise that these re-training sessions were evidence of employer dissatisfaction. Apparently Mr Deck was of the view that the applicant should have construed the re-training sessions as cautions or warnings. It is noted that in summary the representative of the respondent stated that with hindsight it would have been prudent to have issued a formal warning to the applicant that her employment was threatened if the standard of her performance of her duties did not improve. The employer has an obligation so to warn an employee under the Act and I am of the view that this was not done and that it would be incorrect to construe re-training sessions as warnings of impending termination, particularly in light of the history of personal friendship between the parties.

The applicant stated on April 1994 she was advised by her doctor that she was pregnant.  Subsequently she had various telephone conversations with her husband and others, from the office of the Nags Head Hotel during which the forthcoming birth was discussed in detail.  The Court heard evidence the applicant was of the view that it would have been easily possible for other employees to learn of her pregnancy.  The applicant stated to the Court that one of the reasons the respondent terminated her employment was the pregnancy of the applicant.  I do not find this to be so.  There was no evidence presented to the Court substantiating this allegation and it is noted that Mr Deck denies that he was aware of the pregnant condition of the application when he considered termination of the applicant’s employment.

The applicant submitted a medical certificate to the Court stating that the termination of her employment had caused her to suffer stress.  On behalf of the respondent it was alleged that it was the fact that the applicant could not visit her parents in England which caused the stress and not the termination of the employment.  In the circumstances I find that all of the factors referred to previously caused the applicant stress necessitating a visit to her doctor.

In summary the respondent contended the applicant simply resigned. I do not find this to be so. The respondent made the decision to terminate the employment without regard to the legal responsibilities involved and accordingly I am of the view that the termination was unlawful and declare the termination of the employment contravened Division 3 of Part VIA of the Act.

In attachment 8 of her affidavit of 20 April 1994 the applicant claims compensation of $21,436.46. and in her application she stated that she was employed under The Hotels Resorts and Hospitality Award (Commonwealth).  The respondent indicated that the correct name of the award covering the applicant is the Hotels, Resorts and Hospitality Industry Award, 1992.  For the purposes of the claim by the applicant I am of the view that the applicant was engaged under a classification contained in that Award and that in assessing compensation Section 170EE (3) (a) should be considered.  That section deals with reinstatement and also deals with remuneration payable by the employer to the employee lost by the employee because of the termination.  As indicated earlier, I am of the view that the Offer of Employment governed any holiday pay to which the applicant may have been entitled when she went on her anticipated holiday in September.

In considering written submissions it was noted that by letter dated 21 October 1994 the solicitor for the respondent wrote to the representative of the applicant stating:

“Enclosed is a copy of my submissions as to quantum which I have today faxed to the Industrial Relations Court.

I have also been instructed to ask you to pass on to your client an offer by the respondent.  The respondent, without admission of any fault, offers the applicant first right of refusal of any suitable employment which may arise at either of the restaurants in the hotels owned by the respondent, namely the Nags Head Hotel and the General Burke Hotel.  The applicant should contact Patrick Deck at the Nags Head Hotel on [phone] directly to discuss the matter.”

It is noted that during his evidence Mr Deck stated that one of the areas of concern was that the applicant was more suited to running a restaurant than to the position of hotel manager.  The possibility of reinstatement on the basis that the applicant return as manageress of the restaurant at The Nags Head was put to Mr Deck during the hearing of the matter and the response was that the position was filled.  On behalf of the applicant the written response of the applicant to the offer put on behalf of the respondent was as follows:

“I am concerned that such offer is made after approximately six months since my termination of employment on 11.4.94 and that the contents of the letter are not in the terms of my employment in a position equivalent to the Duty Manager’s position or weekly wage of $583.00 per week.  Because of my state of health and anxiety and stress related to my unlawful dismissal I am not at this very late stage in a mental state to consider such an offer.  Until this matter is concluded and a decision is made by the Judicial Registrar Tomlinson.”

It is noted that the applicant did not seek reinstatement in her original application and yet that possibility is not totally rejected by the response above.  It is clear that the applicant solely seeks compensation and I am of the view that reinstatement is impracticable.

Having considered all the evidence it is ordered that the respondent pay to the applicant the sum of $5,000.00 such sum being appropriate compensation.

The Court makes no order as to costs.

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. That the respondent pay to the applicant the sum of $5,000.00 within 21 days of the date of this judgment.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgement of Judicial Registrar Tomlinson.

Associate:  :                 

Date  :        3 November 1994        

Solicitor for the Respondent           :        Mr Peter Strain, Messrs Christopher Callen,   Solicitors.

Dates of Hearing  :        10 October 1994

Date of Judgement  :        3 November 1994