Taylor v Bulkelly and Hanley trading as Natural Image Hair Beauty and Photographic Studio

[1995] IRCA 107

CATCHWORDS

Termination of employment- meaning of termination in legislation- principles for determination of compensation- Federal Police procedures- reference of papers to Officer in Charge Federal Police

Industrial Relations Act, 1988 Secs 170 EA 170 EE.
Termination of Employment Convention Part 1 Article 3.

AI 94/0156

TAYLOR V. BULKELLY AND HANLEY trading as NATURAL IMAGE HAIR BEAUTY AND PHOTOGRAPHIC STUDIO

LINKENBAGH J.R.
8 MARCH 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA
AT CANBERRA    NO. AI 94/0156

BETWEEN  SHERYN TAYLOR
Applicant

AND  CYNTHIA MARGARET BULKELLY
and KAREN HANLEY
trading as NATURAL IMAGE HAIR  BEAUTY AND PHOTOGRAPHIC STUDIO

REASONS FOR JUDGMENT EDITED FROM THE TRANSCRIPT

THE COURT: LINKENBAGH J.R.
DATE OF JUDGMENT: 8 MARCH 1995
PLACE: CANBERRA

This is an application under section 170EA of the Industrial Relations Act 1988, in which the applicant claims that her employment with the respondent was terminated in circumstances which give rise to a right in her to have a remedy, as provided for in the legislation. The provisions of the Act relating to what is commonly known as unfair dismissal, were passed by the Commonwealth Parliament as a result of the support of this nation for the Convention concerning Termination of Employment at the initiative of the employer. It is essential to an action under section 170EA, that the termination be within the meaning of article 3 of the Convention, that is, termination of employment at the initiative of the employer.

This case squarely raises a factual issue as to which party terminated the employment. It is useful to look at the earliest documents produced by the parties, those that are closest in time to the events.  The first of those is a document which is exhibit B, entitled Advice of Termination of Contract of Training. The applicant was employed as a first year Apprentice Hairdresser pursuant to a Contract of Training - Trade made between the applicant and the respondent on 11 April 1984. That contract was in the usual form of apprenticeship contracts in the Australian Capital Territory and the applicant's employment pursuant to that contract commenced on 11 April 1994.  The contract provided for a probation period of three months which expired on 11 July 1994 and the last day that the applicant worked for the respondent was 22 July 1994. 

At some time after 22 July, the parties completed exhibit B.  The applicant's words written on that document are, "I was informed that my services were no longer required.  The environment in which I worked was not satisfactory."  The applicant says that when she signed that there were no other words on the document apart from her own particulars and the particulars of the employer.  The document bears an endorsement under the heading, which reads "After discussion with Sheryn about her poor attitude, she informed she wished to resign" and there is then the signature of Miss Bulkelly, one of the respondents.

The next document produced by the parties, is an affidavit of the applicant, sworn on 8 August 1994, in support of her application and filed in these proceedings.  In that affidavit at paragraph 2F the applicant says:

The reasons given by the respondent for dismissing the employee were: (1) "This is my baby, you do not fit in"; (2) "I am not going to have a person saying no to me."

The respondent swore an affidavit on 28 September in which she explicitly states that she does not dispute the information set out in paragraph 2F of the applicant's affidavit of 8 August which is quoted above.  The respondent goes on to say in paragraph 4:

The reasons for the cessation of the applicant's employment are: That the respondent had reason to believe that work equipment had been unlawfully removed from the workplace by the applicant.  Further that the contract of training between the applicant and the respondent had been terminated by mutual agreement on 22 July 1994.

The oral evidence before the court has been very detailed on both sides as to the events which occurred on 22 July, 25 July and 26 July and I shall deal with that evidence in some detail.

The applicant is a very young woman, having been born on 17 March 1978, making her, at the date of hearing, not yet 17 years of age.  This employment was her first job and she told the Court that she left school to take up this apprenticeship in the hope of making a career in hairdressing, which she very much wanted to do.  The relationship of the parties is, therefore, that of a very youthful first year apprentice working for two experienced mature women in a Hairdressing Salon in Fyshwick.

At the hearing the respondents criticised the work performance of the applicant in some detail. Ms Hanley told the Court that the applicant had been on a "constant downhill" since two weeks after her employment commenced.  There were many and varied criticisms of the applicant's behaviour in the salon.  The significance of those criticisms is twofold.  Firstly, in that there is no satisfactory evidence in my view that adequate or sufficient counselling of the applicant was done during the time of her employment to cause her to bring about an improvement in the behaviour. Secondly and more significantly in the present context, the employers had the opportunity at any time between 11 April 1994 and 11 July 1994 to terminate the probationary employment of the applicant.  They did not do so.  They did not give her any detailed report or assessment of her performance as at 11 July 1994 and they did not give her any cause to believe that the long term prospect of the continuation of her employment was in jeopardy in any way.

I therefore have some reservations in accepting the evidence of the respondents as to the extent and severity of the criticisms which they now make about the applicant's work performance.  They certainly did not argue that that work performance was in any way related to the termination of the employment as they asserted at the hearing that the termination of the employment was at the instigation of the applicant.

The applicant gave evidence that she spoke to one of her employers about a week before she was terminated, to the effect that someone of her acquaintance in comparable employment was given a day off from time to time in lieu of extra hours worked.  The applicant also gave evidence of a conversation with one of her employers on the day before she was terminated to the effect that, on that day, which was her first day of attendance at her TAFE course, she and the other students had been advised as to the merits of joining the Union, and that she thought that she might join the Union.

There was detailed evidence given in relation to a pair of scissors.  The evidence was that every hairdresser has a pair of scissors, and in this salon one's scissors are regarded as one's own for the duration of one's employment, and a hairdresser does not use another hairdresser's scissors. I find that the applicant took her scissors home at some stage prior to 22 July, and probably before 9 July, and that she left them at home.  The absence of her scissors from the salon was the cause of comment to her by her employer and by another apprentice in the salon. The absence of the scissors from the salon, was not, on the respondent's argument before this Court, a cause of the termination, because the respondent argues that the termination was at the instigation of the applicant.  Nevertheless, following the termination the scissors assumed what could almost be described as a life of their own.  The employment was terminated on a Friday, and on the Monday the employer reported the alleged theft of the scissors to the Federal Police.  The scissors were returned to the respondent on 26 July, which was the Tuesday, the day after the initial report to the Police.

The respondent did nothing to notify the Police that the scissors had been returned.  She allowed the Police to proceed with an extensive investigation into the loss of the scissors, which involved a couple of visits to the salon, two or three visits to the applicant's home, and the requirement for the applicant to attend at the Police Station to be interviewed in relation to the scissors.  All that activity by the Police occurred some weeks after the scissors were actually returned to the respondent's possession.

The respondent did not notify the Police of the return of the scissors until after the investigations were completed and the Police cannot have inquired of the respondent as to the return of the scissors, and apparently chose not to believe the applicant's statement that she had, in fact returned the scissors. 

The Court is very concerned as to the consequences for the community at large of the role the Federal Police adopted.  It is surprising, to say the least, that the Federal Police body can have the time and resources to put so much effort into pursuing a complaint in respect of a pair of scissors, in circumstances where the scissors were in the possession of the person said to have stolen them, with the consent of the owner of the scissors.  The concerns of the Court in that regard will be the subject of a separate Order.  The relevance of the issue of the scissors to these proceedings is that it raises a question mark over the motives of the respondent. There are other issues which also raise a question mark over the motives of the respondent.

There were areas of conflict between the evidence of the applicant and that of the two respondents.  Mr Garvin, for the applicant, put the conflict in terms of inconsistencies which can be seen either between the evidence of the applicant on the one part and the respondent on the other, or internally within the evidence given on behalf of the respondents.  The respondents' case is that the applicant appeared unhappy and that Miss Bulkelly requested her on the afternoon of Friday 22 July, to attend a meeting after work and that at that meeting the applicant terminated her own employment.

The significance of the fact that the meeting was called by the respondent must be given its proper weight, along with other actions of the respondent on the Friday.  The respondent had placed an advertisement in the newspaper seeking a First Year Apprentice and that advertisement was published on Saturday 23 July.  The respondent had made an inquiry of the Vocational Training Authority as to the termination of the employment either on 22 July or a day or two before that.  The applicant gave evidence, and I prefer the evidence of the applicant on this point, that there was a conversation between her and Miss Bulkelly at about 9 o'clock on the morning of Friday, 22 July and that in that conversation Miss Bulkelly told her that she could have the next day, Saturday, off in lieu of extra hours that had been worked.
She said that the attitude of Miss Bulkelly towards her on that Friday gave her cause for concern, and that Miss Bulkelly asked her to do some cleaning twice, which was not the usual work practice.  Along with that evidence, there is the evidence of the applicant that, following the conversation that she had with Miss Bulkelly after work on the Friday, she contacted her father in a very distressed state, and her father confirms that that was so.  She, and her father, both gave evidence to the effect that she informed her father that the employer had terminated her employment.  Miss Fitzgerald, another apprentice, gave evidence that she was present at the meeting on that afternoon, and that the applicant was very upset.

The respondent Miss Bulkelly, confirmed also that the applicant was upset.  One wonders why, if the applicant was the person giving the notice, she would have been in the state of distress described by the witnesses.  I note that Miss Bulkelly gave evidence that it was, and I quote, "Just perfect", in her view, when the applicant gave her notice on that Friday afternoon.  That remark indicates that the termination of the applicant's employment was very acceptable to the respondent, and taken with all the other evidence, leads  to the conclusion that it was the respondents' intention to terminate this employment on 22 July, and that that was what happened.

It was common ground between the parties that there was talk that the applicant would do certain things on the Monday.  The respondents' evidence was that the talk about the Monday was that the applicant was to come to work, or, contact the VTA and terminate the contract of training in writing.  There was no mention by either party of working on the Saturday and no suggestion by the respondent that the applicant should turn up for work on the Saturday, even though the respondent denies the conversation at 9 am on the Friday, which the applicant says was to the effect that she was not required to work on the Saturday.

If the respondents' view was that the employment contract continued until it was formally terminated in writing, then one would have expected that the applicant would have been required to turn up for work on the Saturday morning as usual.  But there was no suggestion that she should do that.  Other significant matters which support the version of the facts preferred by the Court on all of the evidence, include the payment of two weeks pay in lieu of notice by the respondent. If the applicant had terminated her employment there would have been no obligation to make any payment in lieu of notice, and yet the respondent paid twice the legal obligation which would have fallen on it, if it had been the one that terminated the employment.

The evidence is that the respondent was difficult about providing a full reference for the applicant. There should be no reason for the respondent to fail to provide a reference freely and voluntarily if, in fact, the applicant was the one to terminate the employment.

On Monday 25 July there was contact between the parties which resulted in an arrangement for a meeting which took place on the Tuesday night.

Again, if the termination was at the behest of the applicant, one could reasonably have expected that the applicant would have voluntarily attended at the VTA, obtained the form and signed it and handed it in and that there would be no further reason for discussion or meeting between the parties.  That was not the case.  There was a meeting set up, which was attended by Ms Bulkelly, the applicant, the applicant's father and Mr Stowers from the Vocational Training Authority, called with a view to sorting out what was to happen and the applicant, certainly by that stage, was clearly asserting that she had been wrongly dismissed.  The respondent, at that meeting, offered her her job back.  The reason for that offer is difficult to see on the evidence.  As Mr Garvin pointed out, at that stage the respondent clearly held the view that the applicant was a thief and had reported her conduct in relation to the scissors to the Police the day before.

Ms Bulkelly told this Court that she was of the view at that time that as well the applicant had taken other things from the salon but that those items were not the subject of any complaint to the Police.  If the respondent held that view about the applicant, it is incomprehensible that the respondent would have been the least bit interested in having the applicant back in the salon as at the Tuesday evening.  Of course, by the Tuesday evening, the applicant was in a position, having had her employment terminated and having suffered some considerable stress and shock, where she could not reasonably consider going back to the employment. Her dreams of being a hairdresser had been shattered, and she had in her view been treated very badly by her employer and on the Monday she was suffering from stress. If the applicant had been the one to terminate the employment, one would not have expected reasonably that she would be suffering any stress on the Monday.

I find that the respondent made a decision towards the end of the week of 22 July to terminate the applicant's employment and that the respondent put that decision into effect at the meeting on the evening of 22 July.  Certainly, over that weekend it would seem, the respondents re-thought their position and were anxious to remedy the situation by the time of the meeting on the Tuesday night.  The situation was not remedied and the respondent then faced the commencement of these proceedings a couple of weeks later.The respondent, in return, pursued her complaint to the Police.

I find that the respondent is in breach of its obligations under the Act and I now turn to the question of a remedy of the Section 170EE.  I find that reinstatement is impractical and I therefore look to the measure of compensation which should be awarded pursuant to the provisions of Section 170EE(3).  The applicant earned a very small wage and almost since the date of termination she has been in receipt of benefits from the Department of Social Security.  Her actual net loss of weekly income is very small.  Mr Wilson, in his submissions, calculated it at $572 after the Department of Social Security payments are taken into account.

That is not the only basis on which the Court considers the calculation of compensation. In this case, it is particularly important that the employment was that of a First Year Apprenticeship, which was about three and a half months into its first year and the applicant was a very young person who had high hopes and expectations of a career in hairdressing.  There was evidence that even with her limited amount of time at this salon, she had attended competitions and was very interested in, and competent at, the work of hairdressing.  Her own evidence was that that dream was shattered on 22 July.

Certainly on the evidence she was the subject of criticism from time to time by her employer, but I would suggest, no more than the criticism that might befall a person of this age early in a career in any field.  And certainly, as I have said, the criticisms of her were not sufficient to cause the termination of her employment during the probation period and, as Mr Garvin submitted, were not sufficient to prevent the entry into the contract for the apprenticeship in the first instance, because she was working at the salon for some weeks before the document was formally entered into.

In this case that aspect is of significance and I have taken it into account in calculating the amount of compensation which I propose to order.  I make a Declaration that the respondent is in breach of Division 3, of Part VIA of the Act.

I order:

1. That the respondent pay to the applicant within 28 days of to-day's date, the sum of $2500 by way of compensation and

1. That the Registrar of the Court forward the transcript of the proceedings before me and my Reasons for Judgment to the Officer-in-charge of the Federal Police in relation to the investigation of the complaint in relation to the stealing of the scissors.

I certify that this and the preceding five pages are a true copy of the Reasons for Judgment of the Court

Maria Linkenbagh
Judicial Registrar
8 March, 1995

Appearance for the Applicant:    Mr. J. Garvin
  AWU-FIME Amalgamated Union

Solicitor for the Respondent:    Mr. J. S. Wilson
  Crossin Barker Gosling