Voula Savvidis and Privilege Clothing Maria Beteramia and Privilege Clothing
[1994] IRCA 118
•16 November 1994
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA VI 357 of 1994
VICTORIA DISTRICT REGISTRY
B E T W E E N:
VOULA SAVVIDIS
Applicant
A N D
PRIVILEGE CLOTHING PTY LTD
(t/as PROMISES CLOTHING)
Respondent
A N D
VI 358 of 1994
B E T W E E N:
MARIA BETERAMIA
Applicant
A N D
PRIVILEGE CLOTHING PTY LTD
(t/as PROMISES CLOTHING)
Respondent
Reasons for Judgment
28 November 1994 PARKINSON JR
This decision is made in relation to the applications by Mrs Beteramia and Mrs Savvidis in relation to the termination of their employment with the respondent company. These proceedings were heard jointly. The following witnesses gave evidence in the proceedings:
Maria Beteramia - applicant
Raymond Beteramia - applicant’s spouse
Voula Savvidis - applicant
Con Mantas - director of respondent company
Ann Mantas - director of respondent company
Christine Eichner - area manager of respondent company
Salvina Senzio - applicants’ co-worker
Olga Christou - personal secretary to Mr. Mantas.
Further, all witnesses with the exception of Ms. Christou filed witness statements which were adopted as their evidence and formally exhibited in the proceedings.
History of employment and background.
The applicant Saviddis was employed by the respondent in July, 1993 as a manager for the respondent’s Forest Hill store. The applicant Beteramia was employed by the respondent on 13th September, 1993 as manager of the respondent’s Box Hill store. Mrs. Beteramia was at that time employed in a retail store nearby the respondent’s outlet at Forest Hill. She resigned that employment to go to work for the respondents. Mrs. Beteramia gave evidence that at the time of her employment interview she informed the respondent that she was to be married in March, 1994 and would require some four weeks off work at that time. Mrs. Beteramia’s evidence was that this was agreed to by the respondent prior to her commencing employment. I accept this evidence despite the evidence of Mrs. Mantas (Exhibit B9) that the request for leave was made only in early 1994.
Mrs. Beteramia first commenced as manager of the respondent’s Box Hill store. In early November, 1994 Mrs. Beteramia was advised by Mrs. Ann Mantas, a director of the respondent, that she was being transferred to the Forest Hill store, and that she would replace Mrs. Savvidis as manager at that store.
On 12th March, 1994, Mrs. Beteramia went on leave for five weeks to return on 21st April, 1994. In her absence Mrs. Savvidis, the assistant manager, was nominally in charge of the store although no arrangements had been made for her to be formally designated as acting manager.
During the period of Mrs. Beteramia’s leave, the respondent appointed a sales manager, Ms. Christine Eichner, to take over responsibility for supervision of all of the retail stores. The sales manager commenced employment on 11th April, 1994. Mrs. Beteramia returned from her marriage leave on 21st April, 1994. Thereafter, difficulties arose about the rostering arrangements for the weekend commencing Friday 29th April, 1994. Mrs. Beteramia’s employment was terminated at approximately 8.00p.m. on Friday, 29th April by Ms. Eichner on instructions from Mr. Mantas. Mrs. Savvidis’ employment was terminated at approximately 5.00p.m. on Tuesday 3rd May, 1994 by Mr. Mantas.
Valid Reason - S170DE(1)
It is necessary for the respondent to satisfy the court that it had a valid reason for the termination of the employment of the applicants. I am satisfied that the reason for the termination of the employment of the applicants related to the matters and circumstances surrounding the rostering arrangements for that weekend. I now turn to deal with the incidents of the weekend commencing Friday evening 29th April, 1994 to determine whether those matters constituted a valid reason for the termination of the employment.
Mrs. Mantas in her evidence (Exhibit B9, paragraph 32) denied any responsibility for the decision to terminate the employment of the applicants. It was her evidence that she was not directly involved in the decision to dismiss them. Whilst she did give further evidence which was inconsistent with this evidence (transcript 220.15), having regard to all of the circumstances of the termination I am of the view that it was Mr. Mantas who made the decision to terminate the employment.
Mr. Mantas was the person who informed Mrs. Savvidis of the termination of her employment, and was responsible for instructing Ms. Eichner to terminate the employment of Mrs. Beteramia. His expressed reasons for the termination of the employment related to the roster and working arrangements put in place for Saturday 30th April, 1994 and Sunday 1st May, 1994 (“the relevant weekend”).
The reasons were the failure of the applicant Beteramia to make herself available or to roster Mrs. Savvidis to work on the relevant weekend, but in particular her alleged refusal to conduct a stocktake. Also relevant in relation to the termination of Mrs Beteramia’s employment was her proposed finishing time on the evening 29th April, 1994. (Re Beteramia see T.149-150.5 and Exhibit B6 para. 15 and 16) In relation to Mrs. Savvidis, Mr. Mantas said it was her failure to present herself for work on the relevant weekend and her close friendship with the applicant Beteramia affecting her performance of her duties. (Re Savvidis see T. 151.5 and Exhibit B6 para. 20) Mr. Mantas also said at T.193.0 that the applicant Saviddis would have saved her job if she had gone to work on the Sunday.
The applicants gave evidence that neither of them, either by the original roster, nor by a subsequent roster prepared by Mrs Mantas, was rostered on for the relevant weekend. Their evidence was that they had longstanding arrangements for attending and participating in a friend’s wedding on the Saturday, and that the Sunday was the usual celebration of Greek Easter. Mrs. Beteramia’s evidence was that she had also arranged the roster to enable her to leave work one hour early on the Friday evening to attend a church service in celebration of Greek Easter. Her evidence was that on that day she had worked with no meal break to enable a finishing time of 8.00p.m.
The evidence of Mrs. Beteramia and Mrs. Saviddis was that the original roster had been prepared prior to Mrs. Beteramia going on marriage leave, and that whilst there had been some alterations to the general rostering arrangements during Mrs. Beteramia’s absence, the applicant’s rosters had remained the same as originally scheduled. The evidence was that the roster provided for the period up to and including one week after Mrs. Beteramia’s return from leave. This period included the Greek Easter period.
That original roster, which the applicants said had been in the file where rosters were usually kept under the counter of the store, was not able to be produced for these proceedings. The applicants contended that the rostered arrangements were well known to the Mrs. Mantas, and that the difficulty with the roster arose only as a result of the respondent scheduling a stocktake at late notice.
The evidence of Mrs. Savvidis was that, during Mrs. Beteramia’s absence on leave, Mrs. Mantas made amendments to the roster in terms of staff arrangements and that, those amendments being made, ensured that the respondent would have known of the proposed roster arrangements for the relevant weekend. They further contended that the roster (Exhibit VS2) was prepared as a substitute by Mrs. Mantas for the original roster, and that it confirmed the previous arrangements. It was further contended that this roster only encompassed the relevant weekend arrangements and that subsequent additions to roster arrangements were made after the applicants had signed the roster sheet.
Mrs. Mantas acknowledged in her evidence that she saw a roster prepared by Mrs. Beteramia only a couple of days prior to the relevant weekend. She says that when shown that roster she did not approve it. She further gave evidence that she did not make up a roster until subsequent to that weekend, and that the roster, which is Exhibit VS2 in the proceedings, was drawn only for the purpose of identifying the actual hours worked rather than as a document which prescribed the hours in advance.
The applicant’s submit that the roster, which was substantially in the same terms as that of the original missing roster, was drawn by Mrs. Mantas and was substituted by her for the original roster, and that no issue was raised by Mrs. Mantas as to the proposed absence of the applicants even though she was fully aware of the rostering arrangements.
Ms. Senzio gave evidence that she saw a roster which is likely to have been the missing roster. Her evidence, contained in her witness statement (Exhibit B12), was that it had only been prepared by the applicant Beteramia in the week prior to the relevant weekend. She did not, however, say how it was that she had come to this conclusion, and I do not accept that she was in a position to draw such a conclusion. In so far as it might be said that this formed part of the discussion between the applicants which she overheard, this is not consistent with the oral evidence of the conversation given by this witness in the proceedings (T. 200.30).
Ms. Senzio in her witness statement also gave evidence of conclusions to the effect that the applicants had deliberately concealed the roster from the respondent. As with the evidence discussed above, no aspect of the conversation recited by Ms. Senzio as being overheard contained any reference to such matters. The only consistent recollection the witness had was that the applicants knew that there would be trouble over the roster.
I do not accept the evidence of Ms. Senzio in relation to the alleged conversation. Her inability to remember details of conversations when asked to do so in evidence, and the fact that she failed to overhear any other conversations which took place between the applicants and the respondents during the relevant week in relation to such significant matters as warnings, or the rostering on the weekend, or the proposed stocktake , contrasted starkly with her ability to recall the exact words of elements of the conversation between the applicants discussed above. Even were I to accept that a conversation in those broad terms took place, I would have real difficulty in placing that conversation into any meaningful context or time frame for the purposes of determining the issues in this case.
The evidence in the proceedings was that rosters were usually drawn the week prior to the roster week. This is consistent with the rosters being prepared by Mrs. Beteramia to encompass the week subsequent to her return to work. Further, it is unlikely that the applicant Beteramia would have left the rostering of that weekend to early in the week prior to a wedding at which she was a member of the bridal party. I do not accept, having regard to the manner in which the applicant had apparently so meticulously prepared previous rosters, (Exhibits B1, B2, B3 and B4), that this significant matter would have been left by her to chance.
I accept the evidence of the applicants in relation to the rostering arrangements. I accept that the rostering arrangements were made in a manner consistent with usual practice, and that nothing that was done by the applicants in this regard was out of the ordinary. I accept that the roster was available to the respondent for the entire period of the absence of Mrs. Beteramia. I do not accept that the roster for the relevant weekend only came to the attention of the respondent on the Thursday prior to the relevant weekend. I am satisfied that the respondent knew the details of the proposed roster, and that no issue was made of that roster until the issue of the stocktake arose.
I find further that the roster which was prepared by Mrs. Mantas (Exhibit SV2), was prepared by her having regard to the pre-existing rostered arrangements for the applicants on the relevant weekend.
It was to the terms of the earlier missing roster which the applicants scheduled their working and leisure time arrangements. Those arrangements having been scheduled for some time prior to the relevant weekend.
I have earlier in this decision made findings in relation to the roster arrangements, in particular that the respondent knew of the proposed arrangements and that those arrangements had been longstanding. I now turn to consider the issue of the stocktake arrangements.
Mr. Mantas’ evidence was that it was unsatisfactory that Mrs. Beteramia should finish early on a busy Saturday trading night and, further, that it was unsatisfactory that employees should refuse to work a stocktake without giving any forward notice of their intention to be unavailable. The respondent’s position in this regard may have been justified if there had not been forward notice of the rostering arrangements proposed by Mrs. Beteramia, and in circumstances where fair forward notice had been given to the applicants as to the stocktake which was to be scheduled.
Mr. Mantas’ evidence was that he did not inform the applicants as to the proposed stocktake, and that such matters were tasks undertaken by Mrs. Mantas. Mr. Mantas gave evidence that his involvement in the events which led to the dismissal only arose in the last week leading up to the dismissals (T.145.5, T146.10). Mr. Mantas gave evidence that the first he knew of the difficulty in respect of any roster was on the Thursday prior to the relevant weekend, when he became aware from information from Mrs. Mantas that neither of the applicants was to work that weekend. He gave evidence that he spoke by telephone to the applicant Mrs. Beteramia some time on the morning of Friday 29th April, 1994 and informed her that he required that either she or the applicant Mrs. Savvidis work on that weekend. His evidence was that he told the applicant Mrs. Beteramia that a refusal could cost them their jobs. Mrs. Beteramia gave evidence that no such telephone conversation took place on that day. I accept the Mrs. Beteramia’s evidence in this regard. Further, it is of significance that at no time did either Mr. or Mrs. Mantas raise this issue with Mrs. Savvidis, or inform her of the requirement that she work on the relevant weekend.
The respondent’s evidence was that the stocktake was scheduled by the respondent two weeks prior to the scheduled date for the Sunday trading day of 1st May, 1994. The earliest therefore that it could have been scheduled according to the evidence of the respondent was 17th April, 1994. Mrs. Beteramia did not return to work from her leave until 21st April, 1994. The evidence of Mrs. Mantas was that she had given the staff two weeks notice of the stocktake (T. 214.10). She subsequently stated that she had given the applicant Beteramia one weeks notice of the stocktake (T. 224.5). She was unable to inform the court as to exactly what day such advice was given to the applicant Beteramia. No evidence was given as to any instruction or advice to the applicant Savvidis in respect of the stocktake arrangements, nor as to any requirement that she work on the relevant weekend. The other staff member, Mrs. Senzio, was unable to give the court any evidence in relation to the stocktake arrangements. Nor did she give any evidence that the proposed stocktaking arrangements were discussed during the course of the conversation she overheard.
No mention was made in either of the witness statements of Mr. or Mrs. Mantas, which statements were adopted and formed part of the respondent’s sworn evidence, of any notice, and in particular advance notice, having been given to either of the applicants in relation to the stocktake.
Mr. Mantas’ evidence was that it was necessary for either the manager or assistant manager to work for the stocktake, that he had told the applicant Beteramia this by telephone on Friday 29th April, 1994, and that he had told her to confirm the arrangements in this regard with him.
I am satisfied that the first the applicants knew of the proposed stocktake was on the Thursday prior to the relevant weekend, and that it was the late notice of the stocktake which resulted in concern being expressed as to the roster which had been prepared and was proposed for that weekend.
The evidence of the respondent was that it was a requirement that at least one of the managers work on the Saturday trading day. I accept that this was the usual practice in relation to the store. However, there were examples given in the evidence of occasions when neither the manager nor the assistant manager worked a particular Saturday. I do not accept the evidence that a manager or assistant was required to work because only they were permitted to hold the key to the premises. I am satisfied that Mrs. Senzio, a long standing employee and now assistant store manager, had, without any complaints from the respondent’s officers, had responsibility for the opening and closing of the store on a number of occasions and that this was known to the respondent.
Notwithstanding the evidence that a manager or assistant manager was required to work on the weekend, Mr. Mantas gave evidence that, had he been asked, he would have allowed the applicants the time off to attend church and for Greek Easter (Exhibit B6 paragraphs 14 and 19). This evidence is consistent with there being a flexibility in the respondent’s position that a manager and assistant manager were required to work on each Saturday, and a recognition by the respondent that arrangements could have been made to accommodate the roster which had been prepared for that weekend.
I find that the reason given for the termination of the applicants’ employment by the respondent was not valid having regard to the pre-existing rostering arrangements for that weekend, the late notice given of the proposed stocktake, and the requirement that one or other of the applicants be available that day. I further find in relation to Mrs. Savvidis that at no time was she ever informed that she was required to work on the relevant weekend by any person in any position of authority at the relevant time.
Even if it were accepted that an ultimatum was given to Mrs. Beteramia, which it is not, there is no evidence that Mrs. Savvidis had knowledge of that ultimatum.
Other issues of performance or conduct of the applicants.
In discussing the history of this matter earlier in this decision, the change to Mrs. Saviddis’ status from manager to assistant manager at Forest Hill was discussed. Mrs. Savvidis gave evidence that she was informed by Mrs. Mantas that she was to be made the assistant manager to Mrs. Beteramia. Both applicants gave evidence that they were only told that the reason for this change was as a result of the operational requirements of the business of the respondent. Mrs Mantas gave evidence that it was due to dissatisfaction with the ability of the applicant Savvidis. Her evidence was also that she had informed Mrs. Savvidis of this fact. I find this evidence difficult to accept. I find it curious that in taking such a serious step as to demote an employee allegedly because of her poor work performance, and thereby reducing her salary, the respondent took no steps to record or confirm in writing with the applicant the reasons for the demotion, nor to put in place any mechanism by which it could subsequently monitor the applicant’s work performance.
I am satisfied that the changes resulted from an operational need in the respondent and not because there was any fundamental concern as to Mrs. Savvidis’ work performance. This is consistent also with the fact that the respondent had no qualms about leaving Mrs. Savvidis in charge of the store as manager in the absence of Mrs. Beteramia. I accept the evidence of the applicants as to the reasons they were given at the time for the change in staffing arrangements.
Mrs. Savvidis accepted what amounted to a demotion, including a reduction in her pay, and remained to co-operatively work as assistant manager to Mrs. Beteramia. The manager’s responsibility included the preparation of rosters, keeping of store figures, cash accountability and in-store garment merchandising. Mrs. Beteramia performed those functions. When Mrs. Beteramia was absent on marriage leave, Mrs. Saviddis performed those functions other than the merchandising role, which I am satisfied was reserved by Mrs. Mantas to herself.
It is my finding on the evidence that there were no difficulties with either applicants’ work performance during the employment period up until at least March 1994 when Mrs. Beteramia was married and went on marriage leave. The evidence of the applicants, which I accept, was that they both worked with commitment to the operation of the store, worked long hours particularly during the December sales period when they would both work for seven days in a row, and that they had consistently good sales figures during their employment.
The evidence was that both applicants and their store had won various internal awards or commendations for their sales performances (Exhibits K1 and K2). Mrs. Savvidis was given one such award on 19th April, 1994 (Exhibit VS1) less than three weeks prior to the termination of her employment.
Further, the sales records of the respondent confirm that the Forest Hill store consistently performed far better than all stores other than the Frankston store, although on some occasions its figures equalled those of Frankston (Exhibit B8). The sales figures also identified, contrary to the sworn evidence of Mr. Mantas (Exhibit B6 ), that the figures of the Forest Hill store have not “improved dramatically” since the termination of both applicants’ employment (T159.15). The reality of the increased profitability in the Forest Hill store since the terminations, if it exists at all, is that it resulted from the reduction of sales staffing numbers in the store from three full-time employees to two (T160.30).
The respondent contends that during the period of Mrs. Beteramia’s absence the store was not managed in the manner required in that there was a failure by Mrs. Savvidis to place an order for stationery, that she did not follow proper procedure for dealing with a layby garment, and that the store was a “mess”. It was also alleged that Mrs. Savvidis was not wearing a company badge as required, and that on two occasions was not wearing current company stock. Evidence was that the newly appointed sales manager, Ms. Eichner, visited the Forest Hill store for the first time on 14th April, 1994 and met Mrs Savvidis for the first time. This meeting occurred less than three weeks prior to the termination of Mrs. Savvidis’ employment. It is Ms. Eichner’s evidence that on that day she criticised the state of the shop and Mrs. Savvidis’ management of it. The applicant Savvidis acknowledged that various matters were raised on that day, but her evidence was that she was able to, and did, respond to the queries raised by both Mrs. Mantas and Ms. Eichner on that day. I accept Mrs. Savvidis evidence in this regard.
In relation to the matter of current company stock, evidence was given by Mrs. Mantas that the employees were told that this was a condition of employment with the company before they commenced employment with the respondent. The evidence of both the respondent’s witnesses and the applicants was that discounts were given on company stock to employees so that they would be able to wear company stock. The applicants’ evidence was that they were aware of the requirement to wear company stock, and they disputed that they failed to do this. There appears to be some divergence in the evidence of the respondent’s witnesses as to the requirement that the stock be “current”, and indeed what that term meant in the context of a store which, on all of the evidence, changed its stock frequently and often on a weekly basis.
The evidence is that on the first occasion that Ms. Eichner and Mrs. Beteramia met on the 21st April, 1994, immediately upon Mrs. Beteramia’s return to the store from her marriage leave, Ms. Eichner “warned” Mrs. Beteramia for not wearing “current company stock”. I accept Mrs. Beteramia’s version of the manner in which this exchange took place. I accept that these were the first words said to the applicant by Ms. Eichner after having introduced herself.
I do not accept that the attitude adopted by Ms. Eichner towards Mrs. Beteramia constituted anything like the standard required of an employer in providing a warning to an employee to enable them to improve their conduct or performance. Nor do I accept that any opportunity was accorded Mrs. Beteramia to respond to Ms. Eichner in respect of the garments she was wearing.
There was no evidence from the respondents as to what constituted or met the criteria of “current” stock for the purpose of the obligations sought to be imposed upon both of the applicants. Whilst the applicants may not have been wearing stock which was identifiable to Ms. Eichner as current company stock, I am satisfied that they wore company stock whilst working in the stores, and that such clothing was as current as might reasonably be required by the respondent.
It was also contended that Mrs. Beteramia was in some way responsible for the alleged “shocking” state of the shop as at 21st April 1994, notwithstanding that it was her first day back at work after her leave, and that anything that was complained of by Ms. Eichner or Mrs. Mantas arose during the time that she was absent on leave. I do not accept that this is fair or reasonable and I do not accept that any of the matters alleged to have arisen during her absence are in any way relevant to Mrs. Beteramia’s own work performance or accountability.
It was further contended by the respondent that the applicants left the store unattended on one occasion. Mrs. Mantas gave evidence that she attended the store on 23rd April, 1994 and that when she entered the store there were five customers on the floor and no staff members present. The applicants acknowledged they were both attending to customers in the fitting rooms on that occasion but deny that they were absent from the floor for any appreciable period of time. They deny that there were any other customers in the store at the time. The applicants did not dispute that the respondent had raised this matter with them at the time of its occurrence. The applicant Savvidis gave evidence that her absence from the floor was of necessity and only for a short time. I accept the evidence of the applicants in this regard and, whilst I accept that the issue was raised, I do not accept that this incident in any way constituted a formal warning or disciplinary incident.
Various other matters were raised by both Ms. Eichner and Mrs. Mantas in relation to the presentation of stock in the shop, and in relation to compliance with instructions by the applicants. It was further said by Ms. Eichner that Mrs. Mantas had complained to her about the state of the Forest Hill shop on 29th April, 1994. The applicants denied that these matters were raised as warnings or as problems with performance. Mrs. Senzio, despite being present in the store during these discussions, was not able to give any evidence as to the matters raised or the issues discussed. She stated that she did not hear any of the contents of the discussions held, notwithstanding her proximity to the persons concerned.
There was evidence in these proceedings of a formal “warning” being issued by the respondent to all staff in relation to matters of concern to the respondent, and in particular the issuing of a circular regarding the playing of a particular radio station in all stores (T.174.5). It is reasonable to conclude therefore, that this respondent would have been likely to follow up any individual disciplinary or performance issues with similar warnings. The numerous alleged “warnings” as to performance which are relied upon by the respondent in these proceedings all relate to the period between 14th April, 1994 and 29th April, 1994 in respect of Mrs. Savvidis, and between 21st April, 1994 and 29th April, 1994 in respect of Mrs. Beteramia. I do not accept that any such formal warnings were given to the applicants in that period of their employment.
In my view, the matters of performance were matters which had never been a basis of any previously expressed formal warning, nor indeed had they been reasonably held concerns as to the applicants’ work performance.
The above matters are relied upon by the respondent as constituting examples of a history of previous unsatisfactory work performance and warnings in that regard. I do not accept them as such, and I further find that the evidence does not support a finding that they could validly have formed any part of the reasons for the termination.
There were a number of unsatisfactory aspects to the evidence of the witnesses for the respondent. In particular, their stated inability to recall details of dates and times at which alleged conversations were held or instructions given contrasted with the confident accuracy with which they were able to recall the content of those instructions, incidents and conversations.
In contrast, I found the applicants in these proceedings to be frank and forthcoming in their evidence in all respects.
Having regard to my findings in relation to all of the above matters, I find that there was no valid reason for the termination of the employment of either of the applicants in these proceedings.
S170DE (2) - Harsh, Unjust or Unreasonable.
The applicants were given no opportunity to respond to the allegations in relation to their conduct regarding the rostering arrangements for the relevant weekend. The applicant Beteramia’s employment was terminated by the respondent’s sales manager, who gave her no explanation as to the incidents and issues which resulted in the termination of her employment. I find that Mrs. Beteramia’s employment was terminated without any reasons being given by the respondent. Similarly with the applicant Savvidis. No adequate opportunity was given to either applicant to provide any explanation or to address the issue of their rostered arrangements for the relevant weekend. No rosters were shown to either applicant at the time of the termination. No opportunity was accorded them to show the rosters to anyone. Nowhere in the respondent’s evidence is it said that the allegations that the applicant Beteramia had recently created the roster or had sought to conceal the roster from the respondent, were put to either of the applicants. Nor is it said that, at the time of the termination, any of the matters said to constitute the alleged poor work performance were put to either of them. Further, the applicant Savvidis’ employment was terminated on the Tuesday evening following the relevant weekend. She had returned to work after the relevant weekend and had worked for two full days before she was called outside of the store and her employment terminated. There was no according of procedural fairness to either applicant in these proceedings. For those reason, the termination of the employment was in any event harsh, unjust and unreasonable in that the respondent failed to accord to either of the applicants procedural fairness.
This procedure adopted by the respondent in relation to the termination of the employment establishes further that no opportunity was given to the applicant to defend themselves against the allegations as to their conduct.
I further find that the respondent, in contravention of S170DC of the Act, failed to accord to either of the applicants the opportunity to defend their conduct or performance against the allegations made.
Subsequent events and matters of conduct raised subsequent to the termination of employment.
Before turning to deal with the question of the relevance of matters and events occurring subsequent to the termination or being discovered subsequent to the termination, it is appropriate to deal first with one allegation made in relation the applicant Beteramia.
Evidence was given in the proceedings that the applicant Beteramia, upon being informed of the termination of her employment, made a “scene” and used loud and offensive language in the respondent’s store and in front of customers. Evidence was given as to the actual words allegedly used by the applicant. This evidence was recalled in detail by the sales manager. In contrast to this evidence, Mrs. Senzio, who was also present in the store, gave no evidence of any scene being made by the Mrs. Beteramia. She did not give any evidence of a scene being made at all, nor did she recall any loud or offensive language being used by Mrs. Beteramia. I do not accept that such conduct occurred.
There were two further matters going to the conduct of the applicants which were alleged to have been discovered subsequent to the termination of the employment. Evidence as to these matters was given by Mrs. Senzio. They were that the applicants had on occasions left her alone in the store to attend customers whilst they took breaks together, and that the applicant Beteramia had predialled her spouse’s telephone number into the shop telephone. I am not satisfied on balance that either of these allegations are true. In any event, it must be said that, having regard to their substance, they would, of themselves and in the absence of an established history of such conduct, be unlikely to found a termination of employment which was not harsh, unjust or unreasonable.
I turn, however, to consider the issue of the relevance of various matters alleged against the applicants which were said by the respondent to have been discovered subsequent to the termination.
It was submitted by counsel for the applicants that allegations of facts relating to conduct or performance of the applicants discovered subsequent to the termination could not be relied upon by the respondent to establish that the reason for the termination was valid, nor that it was not harsh, unjust or unreasonable. The respondent contends that such factors are relevant for consideration by the court, and in this regard relies upon the decision of Von Doussa J. in Lane v Arrowcrest Group Pty. Ltd. (1990) 43 I.R. 210.
The apparent conflict which arises between such lines of authority as Wheeler v Phillip Morris Limited (1989) 97 ALR 282, Lane v Arrowcrest and the Western Hospital Case (1991) 4 VIR 310 (the latter cases suggesting that such material is admissible), arose in the context of the application of the term “harsh, unjust or unreasonable” to the termination of employment.
I do not take either of those latter decisions to extend to the proposition that subsequent allegations of facts unrelated to those which were said to be the reasons for the termination of employment
can be relied upon to justify subsequently a termination which was without merit. It is apparent from the example given by Von Doussa J. in Lane v Arrowcrest that the nature of the subsequent facts under consideration by his Honour were facts that went fundamentally to the specific allegations of misconduct alleged against the employee, and were facts which could not have been reasonably discovered by the employer prior to the dismissal had an adequate investigation been undertaken.
Further, it is clear that the legislative provisions there under consideration had no equivalent provision to that contained in S170DE(1) of the Act.
It is necessary therefore to determine whether subsequent allegations of fact are relevant in respect of the first limb of S170DE (1). In that section it is necessary for the respondent to show that it had a valid reason for the termination.
S170DE(1) provides:
An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
In my view it is a precondition to the termination of the employment that a valid reason connected with the employee’s capacity or conduct must already exist. It is implicit in that section that the valid reason must exist and be in the contemplation of the respondent at the time of the termination.
Further it is inconsistent with the operation of S170DC of the Act providing, as it does, that an employee be accorded an opportunity to respond to allegations against his or her conduct prior to the termination of employment, that allegations of facts discovered subsequent to the termination, be able to be relied upon to justify the validity of the termination of the employment. These being allegations which were not put to the employee at the time of the termination.
This being so, in my view there is no entitlement in the respondent to rely in these proceedings on allegations of facts going to poor work performance or misconduct, such information having been obtained subsequent to the dismissal, for the purpose of determining the question raised by S170DE(1), and I decline to do so.
Having regard to my findings that the termination of the applicants in these proceedings was not for valid reason and was harsh, unjust and unreasonable for procedural reasons, I find that the termination of the employment contravened the provisions of Division 3 Part VIA of the Act.
I turn now to consider the question of remedy.
Remedy:
In determining the question of remedy, it is necessary for the court to determine whether the remedy of reinstatement would be impracticable.
In making this decision it is appropriate to have regard to a number of factors. S170EE provides:
“(1) In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may make the following orders:
(a) an order requiring the employer to reinstate the employee by:
(i) reappointing the employee to the position in which the employee was employed immediately before the termination;
or(ii) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination;
...
(2) If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170 DD) constituted by the termination of employment of an employee, that reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay the employee compensation of such amount as the Court thinks appropriate.”
It is only if it is thought that the reinstatement of an employee would be impracticable that the court may make an order in respect of compensation.
In a recent decision of Wilcox C.J. in Nicolson v Heaven and Earth Gallery Pty. Ltd. (unreported, 20th September 1994) his Honour considered the application of the term “impracticable” in S170EE (2), and stated at page 25:
“The word impracticable requires and permits the Court
to take into account all the circumstances of the case,
relating to both the employer and employee and to evaluate
the practicability in a commonsense way.”
Counsel for the respondent submitted that a number of considerations
arose in these proceedings which were relevant to determining that the reinstatement of either of the applicants in this matter was impracticable. I have summarised his submissions in this regard as follows:
(a) The attitude of the applicants in relation to reinstatement being
unclear.
(b) Lack of any prospect of trust and mutual co-operation between
the applicants and the respondent’s officers or senior employees,
this being particularly relevant in view of the need for these
people to deal with each other personally and frequently.
(c) The mutual attacks on the personal credit as between the parties
but in particular as between the applicants and the person to whom
they would directly report in the workplace.
(d) That persons have been employed to fill the positions previously
held by the applicants and that a period of five months has passed
since the applicants were dismissed, this period being a relevant
consideration having regard to the length of service of the applicants
with the respondents.
I agree that these matters, save for the last, are very relevant factors to be taken into account. that I have carefully considered the practicability of reinstatement of the both applicants. Having regard to the nature of these proceedings, it is apparent that there is no enthusiasm in either applicant at the prospect of returning to work for the respondent. Mrs. Beteramia has obtained alternative full time employment and did not express any view in relation to reinstatement. Mrs. Savvidis’ view was that she did not wish to work with the respondent’s sales manager, her direct supervisor. This attitude was, however, tempered by her stated overwhelming concern to earn a full time income.
I have carefully considered the question of reinstatement in relation to both of the applicants, and in particular Mrs. Savvidis. I have reluctantly come to the conclusion that, having regard to the above matters and in particular the level of animosity between the parties, that reinstatement of either applicant would be impracticable.
I have decided that it is appropriate that an order for compensation be made in respect of both applicants. I turn now to consider the appropriate amount. In my view a number of matters are relevant in this case to assessing the amount of compensation which ought be ordered. In particular these matters are the actual loss of earnings of the applicants, the length of the employment with the respondent prior to the unlawful termination, the issue of whether alternative employment has been obtained and when such employment was obtained, the level of income presently being earned, and the likely length of the employment had the termination not occurred. I do not consider that there are, in this case, any matters going to the employment-related conduct of the applicants which would give cause for a reduction in the amount of compensation ordered.
Having regard to the above matters, and particularly the relatively short period of employment with the respondent, I am not able to conclude with any certainty that there was a real prospect of the applicants remaining in the employ of the respondent for any substantial period of time. I consider that in respect of the applicant Beteramia there was a reasonable expectation of continued employment for another five months beyond the date of the termination of employment. In respect of the applicant Savvidis I am satisfied that she was likely to remain with the respondent for at least a further six months beyond the date of the termination of employment. In making these assessments I have had regard to the nature of employment both women had engaged in both during and since leaving university, the qualifications held by the applicants, the nature of employment sought subsequent to their dismissal, and that actually obtained.
The applicant Mrs. Beteramia obtained alternative full-time employment in September, 1994 in the retail industry. Her gross income in her new position is $430 per week. She previously earned $600 gross per week when employed by the respondent. The applicant Savvidis obtained alternative part-time employment in the retail industry at the start of August, 1994. Her income in her new position is $250.00 gross per week. When employed full-time by the respondent she earned $450.00 gross per week.
Having regard to my earlier findings as to the future likely length of the employment, I have decided to order compensation to the applicant Beteramia in the amount of $ 9,420.00, being calculated by reference to the income the applicant would have earned had she remained in the employ of the respondent for the period between the date of termination of employment on 29th April, 1994 for a period of five months.
Included in this calculation is a deduction in the amount of $2,580.00, being an approximation of the amount of the applicant’s earnings during that period.
I have decided to order compensation to the applicant Savvidis in the amount of $ 8,880.00 being calculated by reference to the income the applicant would have earned had she remained in the employ of the respondent for the period between the date of termination of the employment on 3rd May, 1994 for a further period of six months less an amount of $ 3,000.00 being the amount of the applicant’s earnings during the aforesaid period.
The orders of the court will be:
That the termination of the employment of the applicants contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
That the respondent pay to the applicant Beteramia compensation in the sum of $ 9,420.00
That the respondent pay to the applicant Savvidis compensation in the sum of $ 8,880.00
That the time for payment is twenty-one days from the date of this order.
I certify that this and the preceding twenty-nine (29) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.
Associate:
Dated: 28 November 1994
Solicitors for the applicants: Maurice Blackburn & Co.
Counsel appearing for the applicants: Mr. N. Kenyon
Solicitors for the respondent: Galbally & O’Bryan
Counsel appearing for respondent: Mr. P. Burchardt
Dates of hearing: 11, 12, 13 October 1994
Written submissions: 28 October 1994
Date of judgment: 28 November 1994
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