Tait, Linda Joy v Cullen, Darryll

[1997] FCA 1376

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 95/4427

BETWEEN:

LINDA JOY TAIT

Applicant

AND:

DARRYLL CULLEN

Respondent

JUDGE:	WILCOX J
DATE:	22 OCTOBER 1997
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an application for review of a decision of a Judicial Registrar holding that the respondent, Darryll Cullen, had unlawfully terminated the employment of the applicant, Linda Joy Tait.

When the matter came on for hearing this morning I was informed by Mr Goot, counsel for Mr Cullen, that his client did not contest the finding of the Judicial Registrar that he had terminated Ms Cullen’s employment in breach of Division 3 of Part VIA of the Industrial Relations Act 1988, as the legislation was then called. Mr Goot said the only issue he wished to press on the review was the quantum of compensation.

The Judicial Registrar made an order in favour of the applicant for compensation in the sum of $13,077.  However, this order cannot be supported, at least in terms of the calculation made by the Judicial Registrar.  The Judicial Registrar took the applicant's weekly wage of $653.85, that being the salary component of a package worth $686.53, and multiplied it by twenty weeks.  The twenty weeks included a considerable period during which the applicant was employed by a new employer, Neometics.  I have to consider the problem of compensation afresh.

Mr Goot passed up a document called “Compensation Calculations” which helpfully sets out the position up to 20 March 1996.  It commences with a calculation of the value of the applicant's salary package for the 20 weeks from 1 November 1995, the first day after her termination of employment, until 20 March 1996 at $686.53 per week.  This comes to $13,730.60.  From that figure there is deducted a sum of $1,647.70, being a period of 12 days the applicant would have taken as unpaid leave had Mr Cullen acceded to the request she made of him and whose refusal led to the termination of her employment.  This brings the figure down to $12,082.90.  From that figure, Mr Goot has deducted the actual earnings of the applicant with Neometics, which total $7,014.42.  This leaves a gross compensation figure of $5,068.48.

It seems to me this calculation is good as far as it goes, that is until 20 March 1996.  But I am unable to see the logic in selecting that date.  So far as the evidence reveals, and the parties and counsel have been able to determine, the only relevant event of 20 March 1996 was that, on that day, the Court notified the parties of a directions hearing.  I cannot see that had any significance.  In fact, Ms Tait continued to work for Neometics until 2 May 1996.  She resigned on that day because she was not happy with the nature of the work she was being asked to do.

Ms Tait is a trained dietitian with a science degree, awarded in her native America.  She was doing some work with a scientific element when she commenced with Neometics, but after she returned from her trip to America in late January she was asked to do secretarial work.  As she did not enjoy this work, she left on 2 May 1996.  Ms Tait was still unemployed on the last day of the taking of evidence before the Judicial Registrar, 4 September 1996.

It seems to me some allowance should be made for a continuing loss after 20 March.  The difference between the value of benefits with the respondent, Mr Cullen, and Neometics is some $71 per week.  This should be taken into account.

There is also a question as to whether Ms Tait should be compensated for loss of income after she left Neometics on 2 May 1996.  Mr Kimber, her counsel, says she should because the work she was doing at Neometics was not work as a scientist; she was entitled to decide to reject that work without becoming in breach of her obligation to mitigate her loss.

I do not accept that submission.  It is true that Ms Tait was working as a secretary, but in a small company with a scientific element.  She was not working as a scientist when employed by Mr Cullen; she had a marketing job.  I do not doubt her statement that she enjoyed her position with Mr Cullen's firm more than she did her position with Neometics, but we are talking here about an obligation to mitigate financial loss.  It seems to me in both employments she was a person working in a small company that was involved in a scientific field related to her training, but not personally doing scientific work.  There is a question of degree, I concede; but I do not think the two positions so different as to justify the view that she was entitled to resign from Neometics, in effect, at the expense of Mr Cullen, in terms of quantification of compensation.

I think the appropriate course is to take the continuing economic loss that occurred because Neometics paid Ms Tait less than she was receiving from the respondent.  As I say this was $71 per week.  If there had been evidence that she continued to sustain this economic loss later than 4 September 1996, there might have been justification for giving her that loss over a longer period, but there is no such evidence.  For all I know, she may have obtained a new position, at a salary commensurate with that she received from Mr Cullen's firm, immediately after 4 September.

The appropriate course is to take $71 per week and, rounding it off and perhaps erring on the side of generosity, to allow six months at that rate.  This comes to $1,846.  I add that to Mr Goot's figure of $5,068.48.  The total comes to $6,914.  I would round that off again, slightly in the applicant's favour, and assess compensation at $7,000, or $7,500 with post judgment interest.

I vary the order made by the Judicial Registrar so as to substitute for the figure $13,077, where it appears in orders 1, 2 and 4 the figure of $7,500.  I vary Order 3 so as to substitute the figure $7,880.80.  It will be necessary for a computation to be obtained as to the tax deduction and this will be deducted from the amount the subject of the order.  However, Order 5 made by the Judicial Registrar already covers that situation.  The appropriate course I think is for the amount payable for tax to be calculated and a letter supplied to the Registrar  The Registrar should then pay that sum to the Australian Taxation Office.  The difference between that sum and $7,880.80 should be paid to Ms Tait.  Any balance in Court should be repaid to Mr Cullen.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:            22 October 1997

Counsel for the Applicant:	M Kimber
Counsel for the Respondent:	R Goot
Solicitor for the Respondent:	Carneys
Date of Hearing:	22 October 1997