Vandyk v Classic Dove Pty Ltd

[1996] IRCA 362

DECISION NO:  362/96

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination at the initiative of the employer - whether ABANDONMENT of employment - whether termination for prohibited reason of ILLNESS or INJURY - whether termination for VALID REASON of CONDUCT OR PERFORMANCE or OPERATIONAL REQUIREMENTS - whether termination HARSH UNJUST OR UNREASONABLE - whether PROCEDURAL FAIRNESS

Industrial Relations Act 1988, ss 170EA, 170DE(1), 170DE(2), 170DC, 170DF(1)(a)
  reg. 30D

JOANNE VANDYK v CLASSIC DOVE PTY LTD
VI 1046 of 1996

Before:  PARKINSON JR
Place:  MELBOURNE
Date:  9 AUGUST 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1046 of 1996

B E T W E E N:

Joanne VANDYK
Applicant

A N D

CLASSIC DOVE PTY LTD
Respondent

MINUTES OF ORDER

9 August 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. The application is dismissed.

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1046 of 1996

B E T W E E N:

Joanne VANDYK
Applicant

A N D

CLASSIC DOVE PTY LTD
Respondent

REASONS FOR DECISION

9 August 1996  PARKINSON JR

This is a decision in relation to an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent at its McDonalds outlet in Doveton, Victoria. The business operated by the respondent is a 24-hour fast food outlet and the applicant was engaged to work as a full-time permanent sales assistant on Sunday to Thursday between 9.00pm and to 6.00am, the spread of these hours having been negotiated between the parties. The employment commenced on 19 November 1995.

The respondent contends that there was no termination of employment at the initiative of the employer, and consequently that there is no jurisdiction in the court to hear the application made pursuant to s170EA of the Act. The respondent contends that the applicant by her conduct in the employment abandoned her employment. It contends in the alternative that if there was a termination of employment at its initiative, it was for valid reason based upon the operational requirements of the respondent. The applicant contends that her employment was terminated in the course of a telephone conversation with the respondent’s store manager in about mid December 1995. She contends that the termination of the employment was without valid reason and included as part of the reason a matter proscribed by s170DF(1)(a) of the Act, namely that she was absent from work on account of short term illness or injury. It is appropriate to set out broadly the evidence in this matter and my findings of material fact in this regard, and I now turn to do so.

Prior to commencing her employment the applicant was provided with a policy document setting out policies and procedures of the respondent (Exhibit R2) and an employment agreement setting out the terms and conditions of employment proposed by the respondent (Exhibit R3).  The applicant was required to read the documents, sign them and return them to the respondent.  The applicant’s evidence is that she signed both documents, although only the signed policy document was produced to the court.  The policy document sets out the steps required of employees in the event that they are to be absent from work on account of illness or injury.  The requirement is that the employee notify the respondent within a reasonable time.  That time is specified as being not less than two hours prior to the start of the shift.

The applicant attended for work on 22, 23 and 24 November 1995 in accordance with the terms of the employment.  On 27 November she did not attend work as a consequence of illness.  The applicant returned to work on 28 November and was then again absent on 4 December and 5 December.  The applicant did not attend at work after 5 December.  On about 6 or 7 December Ms Vikash, a manager of the respondent, telephoned the applicant to inquire as to her absence and, after reminding the applicant as to the need to notify absences and provide medical certificates, authorised an additional week’s absence.  During the course of the applicant’s absences the respondent’s managers had been recording the failure of the applicant to notify them of absences on the documentation provided by the respondent for that purpose (Exhibit A2).  The applicant was expected to return to work on the evening shift of 17 December 1995.  On that evening the applicant again did not attend for work.  No notice was given by her as to her non-attendance.  She did not then again attend for work between that date and around 5 January 1996, and no communication was initiated by her with the respondent as to her absence.  No medical certificates were provided by her in this period.

The evidence is that she remained on the roster of the respondent during the period 17 December 1995 to at least 31 January 1996.  The evidence is that the applicant attended work for approximately 47 hours in total over a six week period.  On each of the earlier occasions of her failure to attend work, last minute arrangements were made to replace her with another employee.  Eventually, the respondent made more permanent arrangements to cover the applicant’s absence by rostering someone else for the shifts.  This did not occur until end January 1996.  During this period arrangements were made for the applicant to receive sick pay and any annual leave owing to her.

In about mid December 1995, but apparently after 17 December 1995, the date the applicant was due to return to work, the store manager, Ms Kelly, telephoned the applicant at home to ascertain once again the reasons for her absence.  She was at first unable to speak to the applicant, but left a message with another person at the applicant’s residence.  The applicant did not however return her telephone call and Ms Kelly again rang the applicant that afternoon, ultimately reaching the applicant in person.

The applicant’s evidence is that during the course of that conversation she was abused by Ms Kelly, and her competence as a parent called into question by Ms Kelly.  As a result of this aspect of the conversation the applicant hung up the telephone.  Her evidence was that Ms Kelly indicated that the respondent needed responsible people, and that if the applicant could not work the hours required of her they would have to replace her.  The applicant took this to be a termination of her employment.

Ms Kelly’s evidence was that in that conversation she raised with the applicant the difficulties faced by the respondent when the applicant did not notify them of her absences in advance of the shift.  Her evidence was that she also raised the applicant’s need to provide a doctor’s certificate, together with the fact that if this continued the respondent would have to arrange for a replacement for the applicant.  As to this latter matter, it is clear from the evidence that this was directed to the ongoing difficulties that the respondent was having in filling the applicant’s absences.

I accept Ms Kelly’s evidence that the conversation was not directed to terminating the applicant’s employment.  Her evidence was that there was no mention of the applicant’s employment being terminated, and no reference to the applicant being dismissed was made.  Further, I accept that the applicant was also asked what steps could be taken by the respondent to accommodate her difficulties.  I accept that this was the content of the conversation.  This is consistent with the conduct of the managers of the respondent in their dealings with the applicant during the entire course of the employment.  It is evident that the respondent’s store managers, Ms Vikash and Ms Kelly, had at all times acted reasonably towards the applicant and had not at any time acted precipitously or without regard for the interest of the applicant as well as the respondent.  For these reasons, and also because of the more precise nature of their evidence, I prefer the evidence of Ms Kelly and Ms Vikash to that of the applicant.  It is appropriate, however, to also note that even on the applicant’s version of the conversation, I am not satisfied that there was a termination of the employment by the respondent.  I am satisfied that no termination at the initiative of the respondent occurred or arose as a result of the telephone conversation between Ms Kelly and the applicant.

The applicant did not subsequently attend for work, nor did she provide any medical certificates or any advice that she would not be attending for work. On 5 January 1996 the application pursuant to s170EA of the Act (“the application”) was filed in the court. No other steps were taken by the respondent in the interim which might be characterised as terminating the applicant’s employment. On 15 January 1996, after receipt by the respondent of the application, the applicant was contacted by Mr Ian Vickers, the General Manager of the respondent and, according to his evidence which I accept, informed that her employment had not been terminated by the respondent, that the respondent had appreciated her failure to attend work as an abandonment of employment, and that the applicant’s position with the respondent remained should she elect to continue the employment.

The applicant advised Mr Vickers that she would advise him in an hour whether she was returning to work.  The applicant did not telephone Mr Vickers that day with an answer.  She did not telephone him again until Friday 19 January 1996, at which time she declined to return to the workplace and advised that she would be seeking $12,000.00 compensation.  She further advised she would be prepared to settle the claim for $10,000.00.  The applicant conceded the contents of the conversation in her evidence, although as to the amounts of money she indicated that she did not express herself so bluntly.  The applicant by this conduct in my view initiated the termination of the employment.

The respondent, even after this conversation, continued to offer to hold open the applicant’s employment for her.  This is evidenced by a letter dated 31 January 1996 addressed to the applicant from the solicitors instructed by the respondent (exhibit A1).  In that letter the respondent again confirmed that the respondent had not terminated the employment, and that the position remained open.  Further, the respondent informed the applicant that her position would remain open until 9 February 1996.  In that correspondence the applicant was advised that if she had not returned to work by the nominated date she would be treated as having abandoned her employment.  The applicant was also informed that the respondent was prepared to consider relocating her to another store and also to consider alternative hours of work.

The applicant did  not reply to this correspondence.  I have earlier found that the applicant initiated the termination of her employment at the latest on 15 January 1996 as a consequence of her actions arising from the conversation with Mr Vickers.  It is possible that her conduct in this regard also constituted an abandonment of her employment for contractual purposes, although the failure of the respondent as at 15 January 1996 to treat it as such at that time may mitigate against this finding.  It is however clear that abandonment of the employment by the applicant certainly occurred at the expiration of 9 February 1996.  By her failure to return to the workplace, the applicant evinced an intention not to continue to be bound by the contract of employment.  The applicant declined to continue the employment on 9 February 1996.

I make this finding despite the fact that the filing of the s170EA application was earlier in time than the date of the abandonment. Whilst in some circumstances it might be suggested that such an application being filed would be inconsistent with evincing an intention not to continue the employment, in this case the applicant has never sought the remedy of reinstatement and therefore the fact of the application being filed does not assist her as to the abandonment issue.

In this case I am not satisfied that there was a termination of employment at the initiative of the employer. I am of the opinion that the applicant initiated the termination of her employment. There is no jurisdiction in this court to determine the application made pursuant to s170EA of the Act. The application will be dismissed.

In view of the circumstances of this application and the observations made later in this decision as to this proceeding, it is appropriate that I make the following findings on the facts as to the operation of s170DE(1), s170DE(2) and s170DC of the Act. I am satisfied that the matters relied upon by the respondent did constitute valid reason for termination of the employment, based both on the conduct of the applicant and the operational requirements of the respondent.

Earlier in this decision I referred to Exhibits R2 and R3, the policy document and employment agreement.  The policy document sets out the steps required of employees in the event that they are to be absent from work on account of illness or injury.  The requirement is that the employee notify the respondent within a reasonable time.  That time is specified as being not less than two hours prior to the start of the shift.  The document also requires that employees provide a medical certificate in relation to any absence from work on account of illness or injury.  On the occasions when there was any notification at all by the applicant of the absence from work, that notification did not occur until approximately 1/2 hour prior to the commencement of the night shift.  It is clear on the evidence before the court that the applicant had or ought to have had knowledge of the requirement as to notifying absences.  The applicant did not provide a medical certificate in relation to any occasion where she was absent from work.  Nor was any such certificate produced in these proceedings.

The evidence of the respondent’s witnesses, Ms King, Ms Vikash and Ms Benning was that they each asked the applicant on different occasions to supply medical certificates in relation to her absences.  The applicant’s evidence is that she was not asked during the course of the employment for such certificates.  I do not accept that this is so.  I am satisfied that the applicant was asked by the store managers for evidence as to her absences.  Further, it is clear from the contents of both the policy document and the employment agreement that the applicant knew or ought to have known of her obligation to provide such medical evidence in the event of absence on account of illness or injury.  I am satisfied that the applicant did have actual knowledge of that obligation.  She produced no medical certificates either to the respondent or in these proceedings, nor was there an adequate explanation as to the reason for the failure to produce the medical certificates.

The applicant failed to meet her obligations to the respondent arising from the employment. Her attendance at work left the respondent in an operationally unsatisfactory position in terms of staffing and rostering. Her persistent failure to provide notice of absences or certificates in this regard identifies a lack of any regard for the interests of the employer. The respondent had valid reason for the termination of the employment based upon its operational requirements and the conduct of the applicant. There is no evidence before the court which would satisfy me that there was any element of harshness, unjustness or unreasonableness in the conduct of the respondent, nor any failure to comply with s170DC of the Act.

Further, the claim made by the applicant that s170DF(1)(a) of the Act was breached by the respondent can most appropriately be described as nonsense. For that provision to operate there must be a “temporary absence on account of illness or injury”. “Temporary absence” is defined in Regulation 30D to mean an authorised absence the subject of a doctor’s certificate provided within 24 hours or such other reasonable time, that certificate having been given to the employer and the likely duration of the absence notified. There was never any doctor’s certificate provided to the respondent. Section 170DF(1)(a) could not operate in this proceeding.

I have set out the matters of fact and law above because it is clear to me that this proceeding was a proceeding which ought never to have been brought. The applicant was jurisdictionally barred from bringing the proceeding and any reasonable assessment of the facts at the time of initiating the proceeding would have shown that to be the case. That is so even having regard to the applicant’s own version of events. Further, as to factual matters it is clear that on the applicant’s own version of the facts as to her conduct towards the employer, the applicant had no reasonable cause to complain of any termination of the employment. The evidence also reveals a lack of any opportunity for the respondent to reasonably comply with the provisions of s170DC.

One further matter of concern is the fact that despite numerous opportunities being given to the applicant to return to the workplace she declined, preferring instead to pursue a monetary payment.  The applicant herself aggravated the circumstances and in my view created any damage which might have accrued.  In view of the conduct of the applicant and her attitude to employment with the respondent, this is a case where even had a remedy been available to the applicant I would have declined in the circumstances to award any compensation.  The application will be dismissed.

The orders of the court shall be:

1. That the application be dismissed.

I certify that this and the preceding nine (9) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate:
Dated:  9 August 1996

APPEARANCES

Solicitors for the applicant:  McDonald & Charman
Counsel appearing for the applicant:                   Mr D Martin

Solicitors for the respondent:   Macpherson & Kelly          
Counsel appearing for the respondent:               Mr T Hurley

Date of hearing:  7 August 1996