Tollis v Worldmaster Placements Pty Ltd
[1997] IRCA 235
•01 August 1997
DECISION NO:235/97
C A T C H W O R D S
INDUSTRIAL LAW -
Workplace Relations Act 1996 ss.170 *
CASES:
Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
TOLLIS -v- WORLDMASTER PLACEMENTS PTY LTD AND TREK RECRUITMENT PTY LTD (trading as TREK RECRUITMENT AND MARKETING)
No. VI-2220 of 1996
Ryan JR
Melbourne
1 August 1997
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-2220 of 1996
B E T W E E N :
TOLLIS
Applicant
AND
WORLDMASTER PLACEMENTS PTY LTD
AND TREK RECRUITMENT PTY LTD
(trading as TREK RECRUITMENT AND MARKETING)
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 2 August 1997
THE COURT ORDERS:
That the application be dismissed.
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-2220 of 1996
B E T W E E N :
TOLLIS
Applicant
AND
WORLDMASTER PLACEMENTS PTY LTD
AND TREK RECRUITMENT PTY LTD
(trading as TREK RECRUITMENT AND MARKETING)
Respondent
Ryan JR
Melbourne
1 August 1997
REASONS FOR JUDGMENT
THE CLAIM
This is an application for relief in respect of termination of employment. When the application was filed in the Australian Industrial Relations Commission the Respondent was named as Worldmaster Pty Ltd.
A DISPUTE AS TO THE STATUS OF THE RESPONDENT. WHO WAS THE EMPLOYER?
When the Court received a Certificate issued under s170ED Worldmaster Pty Ltd was still the Respondent.
The Notice of Employer’s Appearance bore the signature of Peter A Ruston who described himself as Managing Director. Mr Ruston identified Worldmaster Pty Ltd as the employer named in the application (i.e. the original application under s170EA) but also indicated that the employee had not given the correct name of the employer and that Worldmaster Pty Ltd was not the true employer. In paragraph 15 of the Notice of Appearance (Form R29), under a heading “Reasons for Termination”, Mr Ruston wrote “refer attached”. No attachment was referred to the Court with the Notice although such an attachment may well have been with the original file in the Commission.
On 5 September the Court’s Listing Co-ordinator wrote to the Applicant’s solicitors and to Worldmaster Pty Ltd advising that the matter had been set down for Directions Hearing on 17 September. The short title of the action was still stated to be Tollis v Worldmaster Pty Ltd.
On 27 September solicitors acting for Worldmaster Pty Ltd filed another Notice of Employer’s Appearance (Form R29). This Notice was dated 27 August (i.e. it was dated a month before receipt in the Court). This Notice stated that the employee had given the name of the employer correctly by placing an ‘X’ in the “yes box” but also an ‘X’ appeared in the “no box” suggesting that the employee had not given the correct name of the employer. Furthermore, paragraph 8 of the Notice suggested that Worldmaster Pty Ltd was not the true employer but no details as to who was “the true employer” were provided.
On 16 September the solicitors for the Applicant filed a request for consent orders. The request referred to Order 35 Rule 10, was dated 16 September and signed by solicitors for the Applicant and solicitors for the Respondent, referred to the matter as Suzanne Tollis, Applicant and Worldmaster Pty Ltd, Respondent and requested that:
the case be set down for hearing for one day
there be mutual discovery 14 days prior to the hearing
On 17 September, the solicitors for the Applicant filed a further request for consent orders. Again, the request referred to Order 35 Rule 10. This time the request was dated 17 September, was again signed by solicitors for both the Applicant and the Respondent, again referred to the matter as Suzanne Tollis, Applicant and Worldmaster Pty Ltd, Respondent, again requested the case be set down for hearing for one day and, on this occasion, requested “there be mutual discovery 28 days of the date of Directions Hearing”.
The orders requested were not made. The order of Judicial Registrar Millane on 17 September was that “proceeding (Tollis v Worldmaster Pty Ltd) VI-2220 of 1996 is adjourned to Directions Hearing on 15 October 1996 at 10:00 am”. The result sheet indicates that neither the Applicant or the Respondent appeared or were represented at the Directions Hearing before the Judicial Registrar on 17 September.
On 23 September the Listings Co-ordinator wrote to the Applicant’s solicitors and to Worldmaster Pty Ltd confirming that there had been no appearance by either party on 17 September and advising the matter had been listed for further Directions Hearing at 10:00 am on 15 October.
On 26 September the solicitors for the Respondent advised the Registrar that they acted on behalf of Worldmaster Pty Ltd and enclosed a copy of a Notice of Employer’s Appearance (Form R29) and stated that the Notice had been filed in the Industrial Relations Commission on 27 August 1996. This Notice was dated 27 August 1996 and appeared to be a copy of the Notice filed in the Court the next day, 27 September 1996. There was nothing in the solicitor’s letter of 26 September which suggested that Worldmaster Pty Ltd was not the true employer although of course the attached Notice of Appearance allegedly filed in the Commission on 29 August contains the same confusing messages as to the employer. Furthermore, the solicitors for the Respondent enclosed another copy of the request for orders sent to the Court by the Applicant’s solicitors on 17 September, which orders were never made but of course referred to the Respondent as Worldmaster Pty Ltd.
On 15 October 1996 the Applicant and the Respondent were represented at a Directions Hearing before me. The matter was listed for hearing on 26 February 1997 and mutual discovery of all relevant documents was ordered “by 2 February 1997”. There is no indication on the result sheet to suggest that the solicitor appearing for the Respondent raised the question of an employer other than Worldmaster Pty Ltd.
On 4 February 1997 the solicitors then acting for the Respondent, Worldmaster Pty Ltd, filed a notice of solicitors ceasing to act (Order 45 Rule 7). The Notice was dated 30 January 1997.
On 20 February 1997 the same solicitors filed a Notice of Appearance again stating that the appearance was for the Respondent, Worldmaster Pty Ltd.
When the hearing began Mr Bristow appeared as Counsel for the Respondent and Ms Fleming as Counsel for the Applicant. At this stage the Respondent was still Worldmaster Pty Ltd. Mr Bristow applied to have the proceedings against Worldmaster Pty Ltd dismissed or struck out. He pointed out that his instructing solicitors wrote to the Applicant’s solicitors on 23 September (Exhibit R1). The letter reads as follows:
“Worldmaster Pty Ltd v. Suzanne Tollis
We refer to your discussions with our client at the Conciliation Conference and confirm that at no time was Ms Suzanne Tollis an employee of Worldmaster Placements Pty Ltd.
Ms Tollis was an employee of Trek Recruitment Managing Pty Ltd.
We enclose herewith copies of the following documents as evidence of the employment of Ms Tollis at Trek Recruitment Managing Pty Ltd:
(a) 1996 Australian Taxation Group Certificate dated 16 July 1996;
(b) Workers Claim for compensation dated 19 July 1996.
We have no instructions to agree to the substitution of Trek Recruitment Pty Ltd as the respondent in this action.
In view of the above we invite you to discontinue the present proceedings.
If the proceedings are not discontinued we advise that we intend upon relying upon this letter to seek an order for costs against your client.”
By letter dated 22 October the Respondent’s solicitors wrote again to the Applicant’s solicitors (Exhibit R2) the letter is as follows:
“Worldmaster Pty Ltd ats. Suzanne Tollis
We refer to our letter dated 23 September and note that to date we have still not received your response.
We wish to confirm that our client, Worldmaster Placements Pty Ltd, denies that it ever employed your client Suzanne Tollis.
Enquiries by our client have revealed that all times your client was employed by Trek Recruitment Pty Ltd (ACN 065 701 439), trading as Trek Recruitment & Marketing. We note your client admitted this in filing a WorkCover claim against that company, a copy of which has already been forwarded to you.
In view of the above, we invite your client to discontinue her present proceedings against our client.
If these proceedings are not discontinued we advise that we intend on relying upon this letter to seek an order that your client pay our client’s costs of the proceedings.”
On this occasion the Respondent’s solicitors clearly identified their client as Worldmaster Placements Pty Ltd. The letter of 23 September had not identified Worldmaster Placements Pty Ltd as the client but had simply stated that:
“at no time was Ms Suzanne Tollis an employee of Worldmaster Placements Pty Ltd”.
On 22 October, in inviting the Applicant’s solicitors “to discontinue her present proceedings against our client”, the Respondent’s solicitors had either overlooked that the proceedings were at that time against Worldmaster Pty Ltd, not Worldmaster Placements Pty Ltd, or were purporting to act for both Worldmaster Pty Ltd (if it exists) and Worldmaster Placements Pty Ltd, and were inviting discontinuance of the proceedings against the former, or were acting for Worldmaster Placements Pty Ltd and were inviting the Applicant’s solicitors to discontinue the proceedings against Worldmaster Pty Ltd.
In any event, five days before trial, the Applicant’s solicitors wrote to the Respondent’s solicitors. A copy of the letter is Exhibit A1 and reads:
“Re: Suzanne Tollis -ats- Worldmaster Pty Ltd
We confirm that this matter is listed for hearing.
We also confirm your advice that the respondent as named in the application was not our client’s employer. You have advised that our client’s employer was in fact Trek Recruitment Pty Ltd trading as Trek Recruitment & Marketing.
We advise that it will be our intention to seek to amend our client’s application should this be necessary to name Trek Recruitment Pty Ltd although we do note the following:
The owners/directors of Worldmaster Placements Pty Ltd and Trek Recruitment Pty Ltd are the same.
Your client Mr Peter Ruston is the owner of both companies.
Our client’s application was filed as against Worldmaster Pty Ltd and Mr Ruston attended the conciliation held on the 26th of August 1996.
Your notice of appearance filed in this matter did not dispute that Worldmaster was our client’s employer. We refer you to your correspondence dated 16 September 1996 forwarded to our office where you confirmed that you acted on behalf of the employer. You also were also a party to Consent Orders filed with the Court on the 16th November 1996.
We ask that you confirm the status of Trek Recruitment Pty Ltd and in particular whether it continues to trade and whether Mr Ruston is the owner or director of this company.
We await your earliest response.”
The Respondent’s solicitors replied on 24 February. The response is Exhibit R3 and reads as follows:
“Worldmaster Pty Ltd -ats- Suzanne Tollis
We refer to your facsimile dated 21 February and wish to advise that we have no instructions in relation to Trek Recruitment Pty Ltd.
In view of the admissions contained in your letter of 21 February we wish to advise that we will be applying for an order for costs against your client on behalf of our client Worldmaster Placements Pty Ltd.”
RESPONDENTS DETERMINED TO BE WORLDMASTER AND TREK
The result of this pre-trial manoeuvring was that the Court:
declined to dismiss the application against Worldmaster Pty Ltd
amended the Application to provide for a Respondent entitled Worldmaster Placements Pty Ltd
added a second Respondent entitled Trek Recruitment Pty Ltd (trading as Trek Recruitment and Marketing)
directed that the hearing of the Application proceed against both Respondents
NO CASE SUBMISSION
The trial was complicated by the fact that Mr Bristow appears to have accepted the Respondent’s brief on the basis that a hearing would not last more than one day. Mr Lacy took over as Counsel for the Respondent on the second day.
The Applicant gave evidence and called evidence from Graham William Melbourne and Roger Koch.
At the conclusion of the Applicant’s case, Mr Lacy submitted that neither Respondent had any case to answer because the Applicant had failed to establish that her employment had been terminated by her employer. He also submitted that if the Court found that there was a termination of employment at the initiative of the employer then the Court should also find that the employer was Trek Recruitment not Worldmaster Placements.
Initially, Mr Lacy intimated that the Respondent might call limited evidence if the Court found termination at the initiative of the employer. However, after submissions from Counsel for the Applicant, the Respondent was required to elect to proceed with the “no case” submission or call evidence. The Respondent elected not to call evidence and relied on the submission that the Applicant had failed to establish jurisdiction by way of termination at the initiative of the employer.
THE RUSTON GROUP OF COMPANIES
The course taken by the Respondents left the Court with the evidence of the Applicant and her two witnesses, Graham Melbourne and Roger Koch.
The Applicant and Messrs Melbourne and Koch worked for Mr Peter Ruston. The Applicant and Mr Koch claim they were employees. Mr Melbourne thought he was employed by “Worldmaster” as a “Recruitment Manager”. His later evidence suggests he was a consultant employed by his own company, Zapolon Pty Ltd, and that this company provided his services to Mr Peter Ruston. Mr Melbourne seems to think that his services, via Zapolon Pty Ltd, were the subject of a contract with a Worldmaster company but he does not really know and it does not appear to be a matter of any real relevance.
The only evidence of what constituted the Ruston or Worldmaster or Trek Recruitment Group of Companies came from Mr Roger Koch, from certain documents tendered on behalf of the Applicant and from historical extracts of Worldmaster Placements Pty Ltd and Trek Recruitment Pty Ltd (Exhibits A12 and A13).
Mr Koch gave evidence of associated companies namely OTR Pty Ltd and K and K Global Pty Ltd. By letter dated 18 July 1996 the WorkCover Manager of QBE Workers Compensation (Victoria) Ltd refers to Over the Road Driver Employment Pty Ltd as managing employer of the Applicant in respect of a WorkCover claim (Exhibit A8).
In a facsimile memo to Peter Ruston in the United States on 16 July the Applicant refers to Worldmaster Inc. (Exhibit A10). Mr Peter Ruston communicated with the Applicant on letterhead which referred to Trek Recruitment and Marketing Pty Ltd (Exhibit A5). However, the letterhead also bears ACN 065701439 and the historical record (Exhibit A13) indicates that the correct title of that company is Trek Recruitment Pty Ltd.
Whatever might be the number and nature of companies in the “Ruston, Worldmaster, Trek” stable, it is clear that Worldmaster Placements Pty Ltd and Trek Recruitment Pty Ltd (trading as Trek Recruitment and Marketing) existed at the time of the hearing. The overall evidence suggests that one of these two companies employed the Applicant.
It is interesting to note that Counsel for the Applicant suggests that the most likely employer was Worldmaster Placements Pty Ltd while Counsel for the Respondent, in denying termination of the Applicant at the employer’s initiative, suggests the employer of the Applicant was Trek Recruitment Pty Ltd.
The Applicant claims that Mr Peter Ruston approached her “several times by telephone from the United States....to work for him”. She also claims that she initially worked as “an unpaid recruitment officer for Trek” and that she commenced paid employment “after a meeting in Altona” and that her pay was “$440 net”. Her Application names Worldmaster Pty Ltd as employer and suggests she started work on 26 February 1996 and that the last date worked was 22 August 1996. This last date is an error. The employment ended, be it by termination or abandonment, on 22 July 1996.
Mr Melbourne’s evidence suggests that he worked as a consultant via his own company and in some contractual relationship with a “Worldmaster company” from November 1994 to 15 July 1996. In evidence he said:
“I was employed by Peter Ruston as Recruitment Manager”
Mr Roger Koch stated that he started work with Peter Ruston in October 1993 on a casual basis and left in February 1996 when he resigned as a director of Worldmaster Placements Pty Ltd, Trek Recruitment Pty Ltd and OTR Pty Ltd.
THE ESTABLISHMENT OF ALEWIDE PTY LTD, A COMPETITOR TO WORLDMASTER AND TREK
Mr Koch admits that in July 1996 he “set up” Alewide Pty Ltd, a rival company to compete with the Ruston/Worldmaster/Trek Group in the business of recruitment of Australian truck drivers for the U.S. long distance haulage market.
Mr Melbourne described himself as a “consultant with Alewide”. He stated that Alewide was registered as a company on 24 June 1996 and began operations on 16 July (i.e. the day after Mr Melbourne states he “resigned” from Worldmaster).
Mr Roger Koch also described himself as a “consultant to Alewide” and that he ”assists with drivers working in the United States”. He gave evidence that he put Mr Melbourne “in charge of full day to day operations (at Alewide) in late July (1996)”.
It is equally clear from the Applicant’s own evidence that she began work with Alewide on 24 July, two days after her employment with the worldwide/Trek Group had ended, albeit, she claims, her employment or work was voluntary and unpaid until 29 September 1996. In cross examination the Applicant stated that Alewide was “set up to help drivers fired or shafted by Trek.”
This background is important. The only three persons to give evidence all work for and play key roles in the operation of a company openly and actively competing against the Respondents. The Applicant and Mr Melbourne went to Alewide as soon as they ended their working relationship with the Workmaster/Trek Group. Mr Melbourne gave evidence that Alewide was registered in June and he seems to have discontinued his “consultant/recruitment manager services” with Worldmaster/Trek on 15 July specifically to join Alewide as manager and to compete directly with Worldmaster Trek. Mr Roger Koch had resigned from the Worldmaster/Trek Group in February 1996 and from his position as a director of Worldmaster and Trek. The three witnesses, and particularly the Applicant and Mr Melbourne, seemed somewhat opposed to Mr Peter Ruston. Certainly all three are conducting a recruitment business in competition to Mr Ruston.
Mr Roger Koch claims to still hold a “50% interest” in Trek Recruitment Pty Ltd with his brother, Ralph Koch. Nevertheless, the Applicant, Mr Melbourne and Mr Roger Koch are, in many senses, allies in opposition to Mr Ruston.
SUGGESTED RESIGNATION
It is also important to note that Mr Melbourne and Mr Roger Koch both expressed the view in their evidence that the Applicant resigned from her employment with the Worldmaster/Trek Group. There was some attempt to backtrack from that description of the ending of the employment but neither unequivocally described the ending of that employment relationship as a termination, a dismissal or a “sacking”.
THE CORRESPONDENCE OF 6 AND 7 JUNE 1996
The ending of the Applicant’s employment followed an acrimonious exchange of correspondence between the Applicant in Melbourne and three representatives of Trek Recruitment in North Little Rock, Arizona.
On 6 June a Mr Derek Innes advised the Applicant by facsimile of “induction and training procedures...for new drivers” with six different U.S. carriers (Exhibit A3). He set out what he described as “a fairly comprehensive outline” of the costs and conditions applied by each carrier. He conceded that on 5 June he had spoken by telephone to Mr Graham Melbourne and that Mr Melbourne had made him “aware that your office (i.e. the Applicant’s office) had been somewhat in the dark as to the procedure here in the U.S. for the induction and training of new drivers”. He also conceded that each carrier had “a slightly different induction and training procedure”. He stated that he would “endeavour to keep (the Applicant) posted at regular intervals”.
He concluded the communication with a footnote which reads as follows:
“FOOTNOTE:
The $USD500 for CDL training is not a fixed cost. It can start around $USD150 It depends on the aptitude of the individual driver. In most cases we do not insist on prepayment of this. We do a payroll deduction and carry this cost until the driver has had a chance to get on his feet and revenue settles down. All of the abovementioned expenses have been slightly overstated to allow for minor fluctuations in cost.
I trust you will find this information useful. Feel free to contact either myself or Garry to clarify any of these points. If you have a driver that you feel warrants a different course of action (e.g. total rookie) please contact us as we may be able to modify one of these programs to better suit his/her needs.
REGARDS
Derek”
The Applicant responded immediately by facsimile addressed to “Derek, Garry” (Exhibit A4). Derek is Derek Innes. Garry is Garry Hubbard. The text of her response was as follows:
“It alarms me to find that we are charging these costs to drivers and were not informed of your dealings over there till now. How long has this been happening? I’m surprised that the drivers we have sent over recently haven’t told you to stick the job up your a---!
Some areas we know a little about, others no knowledge - this would account for the payroll deductions we have received for several drivers which did not incorporate, what the deduction was for.
As you know our application sent to potential employees states they require $150.00 (approx) fee for CDL, a far cry from some of the figures you mention in your fax. This being the case, charging more than we had knowledge of puts us and our reputation in disrepute.
I am sure when the drivers have extra costing above what we have said, they feel maybe trapped, uninformed and ripped-off. Where some of this is concerned we may end up pricing ourselves out-of-business. Business ethics are looking a little ragged. If there were to be increases in any area it should have been deeply discussed between both offices, not just dropping it into the drivers laps... “surprise”.
By dropping this bombshell on me and the drivers without prior knowledge as such, is not what I would ever consider good business ethics or practice.
Professional management/personnel do not compromise a Companies reputation by looking to be acting underhanded. But you two were ex-truck drivers so I don’t expect you would know that.
Regards
Suzanne Tollis”
By letter dated the next day (7 June) Mr Peter Ruston wrote to the Applicant from North Little Rock on letterhead entitled “Trek Recruitment and Marketing Pty Ltd ACN 065701439” (Exhibit A5)
“7 June 1996
PERSONAL AND CONFIDENTIAL
Ms Suzanne Tollis
Senior Management
1st Floor, 100 Albert Road
RE: Your fax to Derek and Garry, USE Office dated 7 June 1996
Dear Suzanne:
Under no circumstances do you have the authority whatsoever to send such a communication in printed text to the staff of the North Little Rock Office that are under my direct supervision. It is irrelevant that your personal feelings have allowed you to be “feisty.”
I have further considered the intent of your communication as a personal insult to my position, you have clearly exercised authority not delegated to you and the matters as you have boldly challenged on no better than “a gutter rat” approach. I now refer to the facsimile transmission sent to you by Derek Innes on 6 June 1996 and confirm that this communication was sent to you with my full knowledge and consent. I now require that you explain to me, in writing, and substantiate your actions.
Mr Lendell Evans communicates with Mr Graham Melbourne on a daily basis effectively advising the Melbourne Office of the requirements of each new carrier as they are installed and contracted therein. I personally speak with Mr Graham Melbourne on a regular basis and I see no reason that the Australian recruiting staff cannot keep abreast with the constant change in the dealings with our customers. I have recognized the inconsistencies that are flowing through, and on the arrival of each driver, it was obvious that the Melbourne Office be advised of the exact position, at contract, with the carriers and you be advised accordingly.
Mr Derek Innes completed his report that I found to be accurate and professional and henceforth sent on to your attention. I fail to see the motive of your reaction and cannot and will not condone same.
Notwithstanding the above, I for one will certainly not connect the word “professional” and the text of your letter in the same sentence. Again, I will not allow a person in my management to ever express such a view in writing and for that matter, verbally, under any circumstances whatsoever. Last but not least, your last sentence was the straw that broke the camel’s back. Again, I will not tolerate any person employed by me in a management capacity to use insulting, inflammatory or innuendo statements whatsoever. Given, that our very product is truck drivers, I now require you to apologize to those persons you boldly directed that written sentence at forthwith and without delay.
I take this opportunity to state that this document has been sent to you in a sealed, confidential envelope and hereby state that this matter has neither been reviewed nor discussed with any other member of this organization (save my secretary, Debbie). This matter will be dealt with only by written word and the confidentiality between myself as managing director and yourself as senior management staff will be adhered to. The contents of this communication is a directive and is not negotiable.
I indeed require your reply forthwith.
Sincerely,
Peter A Ruston
Managing Director
For and on behalf of Trek Recruitment and Marketing Pty Ltd”
EVENTS OCCURRING IN THE MELBOURNE OFFICE UPON RECEIPT OF MR RUSTON’S LETTER OF 7 JUNE
The Applicant and Mr Melbourne stated in evidence that Mr Ruston’s letter arrived in the Melbourne office when both of them were present. The letter arrived in what was described as a “Fedex (i.e. Federal Express) envelope”. Mr Melbourne fixes the date as Thursday 13 June or Friday 14 June. The Applicant is less precise. She states the Fedex envelope arrived a week or two after 7 June (i.e. between Friday 14 June and Friday 21 June). Given other evidence and later events, the Court has concluded that Mr Melbourne is correct in fixing the arrival of the Fedex envelope containing Mr Ruston’s letter of 7 June as either Thursday 13 June or Friday 14 June.
The Applicant and Mr Melbourne differ as to what occurred when the letter arrived. The Applicant stated that the letter from Mr Ruston was in the Fedex envelope with other documentation and that Fiona Ruston asked her (the Applicant) if she could read out the letter and that she (the Applicant) indicated that she did not object but did not know at that time that the letter was marked “Private and Confidential”.
The Applicant claims that Fiona Ruston read out the whole letter, or seemed to read out the whole of the letter, and that from time to time Ms Ruston stopped to make comments in relation to what was in the letter and that she called her father (i.e. Mr Peter Ruston) “a fucking idiot” several times while reading out the letter. In cross-examination the Applicant admitted that she said to Mr Phillip Ruston, “There is no way I am going to apologise. Your father can go and get fucked.”
Mr Melbourne stated the letter from Mr Peter Ruston came in a separate Fedex envelope and was not removed from a Fedex envelope containing other documents. Exhibits R5 and R6 suggest that Mr Melbourne has given accurate evidence and the Applicant has given inaccurate evidence on this aspect.
Exhibit R5 is a UPS Worldwide Services Waybill sent by Cathy Ruston from Worldmaster Inc. North Little Rock, Arizona to Helen Melbourne (i.e. Mr Graham Melbourne’s wife) and is stated to contain “company newsletters, documents and memo’s and catalogues” and the date of shipment is endorsed as 5 June 1996.
Exhibit R6 is a UPS Worldwide Services Waybill sent by Peter Ruston from Worldmaster Inc. North Little Rock, Arizona to “Personal - Suzanne Tollis, Trek Recruitment Pty Ltd, 1st Floor, 100 Albert Rd, South Melbourne”. The Bill is stated to contain one package and the goods are described as “letter” and the date of shipment is endorsed as 7 June 1996.
The Waybills (Exhibits R5 and R6) support Mr Melbourne’s version of events. While the Applicant and Mr Melbourne were unimpressive, inconsistent and at times conflicting witnesses I have generally preferred the evidence of the latter where the evidence is in conflict. This does not assist the Applicant who has the onus of demonstrating that her employment was ended at the initiative of the employer.
On the other hand, Mr Peter Ruston cannot with any justification purport to occupy the high ground. On 15 October 1996 his legal representative was advised at a Directions Hearing that this matter was set down for trial on 26 February 1997. Mr Ruston must be taken to have elected not to return from the United States for the hearing. I do not accept that there are medical grounds which prevented his attendance. Whilst it was hinted this was so, the circumstances outlined by Mr Lacy did not satisfy me that Mr Ruston was unable to attend had he chosen to do so. Furthermore, if medical advice prevented or militated against his attendance there was ample time for the Respondent to apply for an adjournment long before the unsuccessful application made on the first day of the hearing when Mr Bristow failed in his attempt to have the proceedings dismissed.
EVENTS OCCURRING AFTER RECEIPT OF LETTER OF 7 JUNE AND BEFORE THE ENDING OF THE EMPLOYMENT ON 22 JULY
There was not a great deal of evidence as to what occurred in this period. The Applicant states that she sought legal advice. She said that she glanced over the letter from Peter Ruston and gave it to her solicitor. She made the curious statement that
“I saw personal and confidential when I skimmed the letter. To this day I have not read the letter word for word.”
It seems most unlikely that the Applicant would have merely skimmed such a letter. A more likely reaction would be to read the letter thoroughly and more than once.
At this stage the Applicant gave somewhat rambling evidence which included the following:
“Philip nagged me over replying. Graham Melbourne asked me to reply. I do not run paper warfare. I took the letter to my solicitor in that week. I wanted his opinion.
Peter is very vindictive. He uses blackmail. He threatens drivers.
Philip Ruston cuts and pastes criminal records. They hold these things over their heads. The drivers tell me.
Yes I had an obligation to reply to the letter. Yes Graham Melbourne advised me but he advised me not to reply if I did not wish to. He left it up to me. He was going to badger me. He said Peter Ruston wanted me to reply. He told me not to reply if I did not wish to. He said I will not force you to reply.
Philip Ruston was badgering me to reply. Mr Melbourne was instructed to get me to reply. This occurred within days after I received the letter. I presumed Peter Ruston wanted me to reply immediately.”
THE ENDING OF THE EMPLOYMENT 22 JULY
The Applicant’s evidence included the following:
“I got into work at 8:30 am. The office was in darkness. The Ruston family came in about 9:00 am.
Peter Ruston said that he wanted to talk to me. I went to his office about 9:30 am. All up we spent an hour in his office. The others were coming and going. Peter, Philip, Catherine and Fiona Ruston were there. The others were coming and going but mostly it was Peter Ruston and me alone.
We discussed WorkCover, the Melbourne Financials and all the proceedings of that week and several drivers. Peter wanted to discuss the letter and try and resolve it. I preferred not to discuss it. I said that I would discuss it with my solicitor and that I would not discuss it any further. I said that it was in the hands of my solicitor. There was a heated argument in relation to the letter. He raised his voice and then he threw his hand in the air and he said:
“Fucking get out.”
He screamed. I assumed he had fired me. I said, ‘fine’.
I went to my office. I rang my son to pick me up.
Fiona said that she was sorry and that he was a fucking idiot. I am sorry that he has sacked you. She was crying. She begged me not to sue them. I indicated that I did not want to discuss it I just wanted to go home. I said “I have been sacked that is the end of it. It is just between me and your father. That is the end of it.”
She asked me for my cards. I told her that the keys were on the desk. She said that she had decided to restructure after a meeting and that she wanted to inject new blood.
In cross-examination the Applicant said ‘Fiona left. Then Catherine left. Then Philip left. Peter Ruston closed the door. He wanted to discuss the letter. I would not discuss it. He wanted to forget about the letter and not to go further. I do not recall him saying that the letter had been sent by Fedex and that he had had no reply.
I recall saying that I had sent the letter to my lawyer. He may have said that he had sent the letter under private and confidential cover.
He said “fucking get out”. He screamed and threw his arm in the air. I took this as a dismissal. I took it that way. I said “fine”. I was upset. I opened the door I walked out. I went to my office. I rang my son.
Fiona had said that she was sorry that he had sacked me. She said “he is a fucking idiot”.
THE INITIATIVE TAKEN TO END THE EMPLOYMENT. DID THE APPLICANT TAKE THE INITIATIVE OR DID THE RESPONDENT TAKE THE INITIATIVE?
The Applicant’s evidence of Mr Peter Ruston swearing at her, waving his arms and telling her to get out is of course uncontested given that the Respondent elected to call no evidence. That evidence is consistent with the termination at the initiative of the Respondent. However, even if Peter Ruston did swear at the Applicant and did wave his arms and did tell her to get out, and the Court has no other evidence before it, such circumstances do not of themselves establish an ending of the employment at the initiative of the employer. The Applicant said “I took this as a dismissal. I took it that way.”
The Court is not satisfied that the altercation between the Applicant and Peter Ruston on 22 July was a termination of employment at the initiative of the latter. Mr Ruston wanted the Applicant to address the concerns he had expressed in his letter on 7 June. She admits that she refused to do so. She admits that there was a heated argument in relation to the letter.
The Applicant has not satisfactorily explained how Fiona Ruston would have known that Peter Ruston had allegedly dismissed the Applicant. She implied that Fiona had been told in advance that Ruston intended to dismiss her but I am inclined to the view that such evidence bears the hallmarks of recent invention.
In all the circumstances of this case, I do not consider that the Respondent terminated the Applicant’s employment if and when he ordered her out of his office on 22 July.
The Applicant’s own witnesses expressed the view that she had resigned. Those witnesses and the Applicant were undeniably working almost immediately thereafter in a rival driver recruitment business. There were many aspects of the evidence of the Applicant and her two witnesses which were unimpressive and inconsistent.
To succeed in a claim of unlawful termination of employment, indeed to attract the jurisdiction, the Applicant must establish the employment was terminated at the initiative of the employer: Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
The Applicant has failed to discharge that onus. The Application fails for lack of jurisdiction and is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
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 13 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 1 August 1997
Solicitors for the Applicant: Ryan Carlisle Thomas
Counsel for the Applicant: Ms L Fleming
Solicitors for the Respondent: Godfrey Stewart
Counsel for the Respondent: Mr Bristow
Mr B Lacy
Date of hearing: 26 and 27 February 1997
Date of judgment: 1 August 1997
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