Wanneberg v Alloa Holdings Pty Ltd T/A Energy Publications
[1996] IRCA 346
•31 July 1996
DECISION NO: 346/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether termination for PROHIBITED REASON OF FAMILY RESPONSIBILITIES - meaning of "FAMILY RESPONSIBILITIES" - whether VALID REASON FOR TERMINATION - HARSH, JUST AND UNREASONABLE - whether Equal Opportunity Act (WA) is an ALTERNATIVE REMEDY - ASSOCIATED JURISDICTION - relationship between Federal legislation and relevant State anti-discrimination legislation - COMPENSATION
Industrial Relations Act (C'th) 1988, ss170DB, 170DC, 170DF(1)(f), 170EA, 170ED, 170EDA, 170EE, 170KA
Equal Opportunity Act 1984 (WA)
Sex Discrimination Act 1984 (C'th)
Clerks (Wholesale and Retail Establishments) Award No. 38 of 1947 as amended and consolidated
Aitken v CMETSWU, WA Branch (199563 IR 1.
Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20.
Brackenridge v Toyota Motors Corporation (Australia) IRCA 162/96, 19 April 1996, Beazley J, unreported.
Burazin v The Blacktown City Guardian, IRCA 660/95, 15 December 1995, Madgwick J, unreported.
Byrne & Frew v Australian Airlines (1995) 131 ALR 422.
Christie v Qantas Airways Ltd, Spender, Gray and Marshall JJ IRCA 257/96, 14 June 1996, unreported.
Churchill v Town of Cottesloe (1993) EOC 92-503.
Cox v South Australian Meat Corporation (1995) 58 IR 254.
Gregory v Philip Morris Ltd (1988) 80 ALR 455.
Kenefick & Ors v Australian Submarine Corporation Pty Ltd (1995) 62 IR 107.
Merlin Gerin (Australia) Pty Ltd v Wojcik & Ors (1994) EOC 92-592.
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 57 IR 50.
Perrin v Des Taylor Pty Ltd (1995) 60 IR 293.
Ryan v Shire of Shark Bay (1992) EOC 92 - 441.
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371.
Thompson v Kertan Pty Ltd, IRCA 533/95, 29 September 1995, Fleming JR, unreported.
Toop v Commonwealth (1995) 62 IR 233.
X v Department of Defence [1995] Commissioner Carter, Human Rights and Equal Opportunity Commission, EOC, paragraph 92715.
Hawks, "Australian Constitutional Law", 5th Edition, 1994, Butterworth, paragraphs 6.014 ff.
Senate Economics Reference Committee Inquiry into the Workplace Relations and Other Legislation Amendment Bill, 1996, by the Sex Discrimination Commission on behalf of the Human Rights and Equal Opportunities Commission, p59.
Associate Professor Phillip Tahmindjis, "The EEO Practitioner and the New Industrial Laws", Australian Labour Law Reporter, CCH, paragraph 85-021.
WANNBERG V ALLOA HOLDINGS PTY LTD T/as ENERGY PUBLICATIONS - WI 1126 of 1996
Before: RITTER JR
Place: ADELAIDE (Heard in Perth)
Date: 31 July 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1126 of 1996
B E T W E E N:
MICHELE CONNIE MARGA WANNBERG
Applicant
A N D:
ALLOA HOLDINGS PTY LTD T/as ENERGY PUBLICATIONS
Respondent
MINUTE OF ORDERS
31 July 1996 RITTER JR
THE COURT DECLARES AND ORDERS THAT :
The respondent terminated the employment of the applicant in contravention of section 170DB of the Industrial Relations Act, 1988 ("the Act").
The respondent terminated the employment of the applicant in contravention of sections 170DE(1) and 170F(1)(f) of the Act.
For the contravention of section 170DB of the Act, the respondent is to pay to the applicant the amount of $961.54, within 14 days of the date of this order.
For the contravention of sections 170DE and 170DF(1)(f) of the Act, the respondent is to pay to the applicant compensation in the amount of $12,500, within 14 days of the date of this order.
There be liberty to the applicant to apply to the Court, by no later than 7 August 1996, for an order for costs.
If the applicant makes an application for costs under the previous order, such application is to be supported by an affidavit and written submissions.
If an application for costs is made, the respondent shall file and serve any affidavit and written submissions in reply by 4 pm on 14 August 1996.
If an application for costs is made, the Court will reserve its decision in relation to costs.
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
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1126 of 1996
B E T W E E N:
MICHELE CONNIE MARGA WANNBERG
Applicant
A N D:
ALLOA HOLDINGS PTY LTD T/as ENERGY PUBLICATIONS
Respondent
REASONS FOR DECISION
31 July 1996 RITTER JR
INTRODUCTION
This application was filed by Ms Wannberg at the Australian Industrial Relations Commission ("the Commission") on 22 April 1996. The application was filed under section 170EA(1) of the Industrial Relations Act 1988 ("the Act"). This section states that "a person (the employee) may lodge with the Commission an application for relief in respect of termination of his or her employment". Section 170EA(4) of the Act provides that an application so lodged is to be treated by the Commission as a request to attempt to settle the matter by conciliation.
By a certificate dated 10 April 1996, Commissioner Dight certified, in accordance with section 170ED(1) of the Act, that the Commission had been unable to settle the matter by conciliation within a reasonable time and that the parties in the matter, having been invited to elect to have the matter dealt with by consent arbitration, had not so elected.
Section 170ED(2) of the Act provides that when the Commission refers an application and certificate under section 170ED(1) to the Registrar of this Court, the application is taken to have been duly lodged with the Court as an application for a remedy in respect of the termination.
There was no issue that the applicant commenced employment with the respondent on 7 March 1995 as a secretary/receptionist. There was also no issue that the applicant's employment with the respondent was terminated by the respondent on 12 March 1996.
THE APPLICATION
The applicant claimed that the termination of her employment was unlawful because the respondent contravened sections 170DE, 170DF(1)(f) and 170DC of the Act. The respondent denied any such contravention of these sections of the Act.
The applicant did not claim reinstatement, but compensation pursuant to section 170EE(2) of the Act. This section provides that compensation may be ordered if the Court considers it appropriate in all the circumstances of the case, where reinstatement is impracticable. The respondent agreed that reinstatement was impracticable.
The applicant also sought damages pursuant to section 170EE(5) of the Act in respect of an alleged contravention of section 170DB of the Act. The applicant alleged that the respondent failed to either provide her with the adequate period of notice, or compensation instead of notice as required by section 170DB.
The respondent, through its advocate, Mr Jones, formally conceded during his closing submission that there had been a breach of this section of the Act and that, according to the formula set out in section 170DB, the applicant was entitled to be paid damages in the amount of two weeks' wages. I will quantify this amount later in my judgment.
The applicant, through her counsel, Mr Hammond, raised an important issue as to the orders that the Court should make if a finding of unlawful termination was made. This related to the applicant's claim that the termination of her employment was unlawful in that the termination of employment was for a prohibited reason under section 170DF. The applicant relied on section 170DF(1)(f). This section states that:
"An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons . . . (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin" (emphasis added).
Mr Hammond submitted that the employment of Ms Wannberg was terminated for a reason, or including the reason, of her family responsibilities. The factual basis upon which this submission is grounded will be referred to later.
Mr Hammond drew the Court's attention to the provisions of the Equal Opportunity Act 1984 (WA). This Act provides that compensation can be ordered where there is discrimination involving a dismissal of employment on the basis of family responsibility or family status.
The Equal Opportunity Act (WA) provides a maximum compensatory figure of $40,000 (section 127). This amount exceeds the maximum compensation that could be awarded to Ms Wannberg in the circumstances of this case. This is because Ms Wannberg's salary with the respondent was $25,000 per annum. Therefore, the maximum amount of compensation that the Court can order for a termination of employment contrary to the Act is $12,500 : see section 170EE(3).
Mr Hammond raised the following matters for the consideration of the Court:-
Whether the Court could consider and, if it found in favour of Ms Wannberg, allow and make an order that the respondent pay compensation to the applicant pursuant to the Equal Opportunity Act (WA), under the associated jurisdiction of the Court, as set out in section 430 of the Act;
Whether the Court could make a finding in favour of Ms Wannberg, to the effect that the respondent had unlawfully discriminated against her under the Equal Opportunity Act (WA) and refer to the Equal Opportunity Tribunal (WA) or Equal Opportunity Commission the question of the extent of compensation under that Act;
Whether, given the greater amount of compensation that the applicant could be awarded under the Equal Opportunity Act (WA), the Court should decline jurisdiction under section 170ED(4). This section provides that the Court must decline to consider or determine an application referred by the Commission if satisfied that there is available to the employee by whom or on whose behalf the application was made, an alternative remedy in respect of the termination, under a law of the Commonwealth or State that satisfies the requirements of Articles 4 to 11 of the Termination of Employment Convention. Mr Hammond submitted that the Court would first have to consider the issue of whether there had been discrimination contrary to the Equal Opportunity Act.
Mr Jones, in closing, submitted that :-
The associated jurisdiction did not apply because the Equal Opportunity Act claim was not a matter which was "not otherwise within the jurisdiction" of the Court;
The Equal Opportunity Act (WA) was not an adequate alternative remedy, having regard to section 170ED(4) of the Act;
There was no reason why the Court should refer the matter to the Equal Opportunity Tribunal to determine any issues, considering the Court's jurisdiction and mandate under sections 412 and 418 of the Act.
Mr Jones urged the Court to find that it had jurisdiction to deal with all issues.
These submissions raise interesting questions of law which will be referred to later in this judgment.
Finally, the applicant sought, pursuant to clause 25 of the Clerks (Wholesale and Retail Establishments) Award No. 38 of 1947 (as amended and consolidated), an order for the payment of two days' pay for compassionate leave. It was agreed between the parties that the award applied to the employment of Ms Wannberg with the respondent.
The claim under clause 25 was raised for the first time during Mr Hammond's closing submission. Mr Jones did not seek to respond to the submission. However, I do not take this as a concession that there was the entitlement under the award which was claimed on behalf of Ms Wannberg by Mr Hammond. I will consider the entitlement to this claim later in this judgment.
THE TRIAL
The trial of the application was heard on 15 and 16 July 1996. The applicant gave evidence in support of her case. The applicant also called as a witness Ms Kristine McCulloch, a senior social worker at Princess Margaret Hospital, who had involvement with Ms Wannberg and conversations with Mr Smith, prior to the termination of the applicant's employment. The respondent called as witnesses, Mr Shaun Smith, the Managing Director of the respondent; his wife, Mrs Grace Smith, who is also a Director of and works for the respondent; Ms Carol-Anne Smith, the daughter of Mr and Mrs Smith, who was formerly an employee of the respondent; Mrs Nancy Llewellyn, Mrs Smith's sister, who is also an employee of the respondent; and Ms Karen Williams, who is a friend of and lives with Ms Carol-Anne Smith.
At the conclusion of the hearing on 16 July 1996, I reserved my decision. However, I was of the view that it would be better, in the particular circumstances of this case, to advise both parties of the date that I would hand down this decision. The date advised was 31 July 1996.
THE ISSUES
The issues raised by the application and the relevant onus of proof with respect to each issue are as follows :
The respondent has the onus of proving that there was a valid reason or valid reasons for the termination of the employment of the applicant under section 170DE(1) of the Act : see section 170EDA(1)(a) of the Act.
If the employer does satisfy this onus of proof, the termination of employment is nevertheless taken to have contravened section 170DE(1), if the applicant proves that because of section 170DE(2) (that is, that the termination was harsh, unjust or unreasonable), the reason or reasons proved by the employer were not valid.
The respondent has the onus of proving that the applicant's employment was not terminated for the reason, or including the reason, of family responsibilities : see section 170EDA(2).
With respect to the alleged breach of section 170DC of the Act, the applicant has the onus of proving that the respondent terminated her employment for a reason connected with her conduct and performance, and that she was not given the opportunity to defend herself against the allegations made.
With respect to the claim for damages under section 170EE(5), given the concession by Mr Jones that there was a breach of section 170DB, I will only need to quantify the amount of damages to be ordered.
With respect to the alleged breach of the award for the failure to provide compassionate leave, the applicant has the onus of proving that there was a breach of the award and, if so, I will need to quantify the amount that ought to have been paid to the applicant.
If the termination of employment of the applicant was unlawful due to a contravention of section 170DE, 170DF(1)(f) or 170DC of the Act, I will need to determine the extent of compensation, if any, to be awarded to the applicant under section 170EE(2) and (3).
Finally, I will need to determine the various issues raised by Mr Hammond's submission in relation to the Equal Opportunity Act 1984 (WA).
VALID REASON FOR THE TERMINATION OF EMPLOYMENT
Section 170DE(1) is cast in the form of a prohibition. It states that an employer must not terminate an employee's employment unless there is a valid reason or valid reasons connected with their capacity or conduct, or based on the operational requirements of the undertaking, establishment or service.
As stated earlier, Ms Wannberg was employed by the respondent as a secretary/receptionist. It is agreed that she commenced employment on 7 March 1995 and that her employment was terminated on 12 March 1996.
The termination of employment followed an absence from her employment by Ms Wannberg due to her caring for her five year old son, Richard ("Ricky") Wannberg, who was dying from a medulloblastoma, commonly called a brain tumour. Ricky Wannberg died on 17 March 1996.
In his closing submission, Mr Jones said that the valid reason for the termination of employment was that it was "necessary by the employer to make a bold, hard, commercial decision to replace the applicant in these proceedings, who was on extended absences on account of her son's death, but it was not that reason; the reason, we say, was that she had exhibited through her actions and through her advices that she was not ready, willing or available to perform the work for which she was engaged; and, secondly, that it was an imperative, based upon the evidence of Mr and Mrs Smith, that they have a full-time person to perform the functions of secretary/typist in order that the office could efficiently operate, given that it was moving towards a busy period in the life cycle of the company's fortunes. That, we say, does satisfy the valid reason . . . I think we could truly say that the employer was facing a critical decision, circa 12 March, 1996, where it had to make an important decision as to the manning of an important function within its office and as the applicant had, through various means, reported to the employer that she was not ready, willing and available for work, notwithstanding that she, too, had a reason for not being so ready, willing and available for work, but we say that in the circumstances faced by the employer, it was right and proper for him to make a decision as he did". The reference to "him" was a reference to Mr Smith.
In his closing submission, Mr Hammond said that Mr Jones had "used the colloquial expression in his summing up that the company had to make a bold, hard, commercial decision. Our colloquial response to that is that this employee was kicked in the guts when she was down".
Ricky Wannberg was diagnosed as having a brain tumour on 10 May 1994. However, when Ms Wannberg commenced work in March 1995, she understood that Ricky Wannberg was in remission. She explained in evidence that Ricky had extensive chemotherapy and radiotherapy after the brain tumour was diagnosed, and that he went into remission in November 1994. Ms Wannberg said in her evidence that Ricky was, when she commenced employment with the respondent, "a bright, bubbly young boy, just like any other 4 year old".
The respondent's business is a publishing company. They publish magazines in Australia, New Zealand and Papua New Guinea, mainly in the resource sector. They also run exhibitions in the resource sector which take place in Papua New Guinea, New Zealand and Australia. They also organise an annual computer exhibition in April at Burswood Resort in Perth. The office of the respondent is situated in Mt Hawthorn. The respondent employs about nine to eleven people at any given time. There are editorial employees, sales people and other administrative staff. The administrative staff include the secretary/receptionist, Mrs Grace Smith, who looks after the accounts and works part-time; and Mrs Llewellyn, who works full time to look after the main accounts. Mr Smith is also actively involved in running the business. The two people responsible for making major decisions for and on behalf of the respondent are Mr and Mrs Smith. This includes the making of decisions with respect to the hiring and termination of employment of employees.
The duties of Ms Wannberg included receiving incoming telephone calls and directing them to the appropriate people, banking cheques that came in on a daily basis, typing letters for Mr Smith, the acknowledgment of orders given to the respondent either on the exhibition side or the advertising side of the business, and other general administrative work.
Ms Wannberg described the circumstances by which she came to be employed with the respondent. She said that she was employed with a company called Exicom Communications and was looking for a job with greater security. She therefore went to the Commonwealth Employment Service ("the CES"), who said that they would try to help her find a job. The CES then approached Ms Wannberg with respect to employment with the respondent. Ms Wannberg went for an interview with Mrs Smith and a day or two later Mrs Smith telephoned Ms Wannberg to say that she had obtained the position. It seems that there was not a lot discussed at the interview with respect to the terms and conditions of employment. There was no written contract of employment. It was made clear that Ms Wannberg would be paid a salary of $25,000 per annum. Ms Wannberg said that Mrs Smith gave her a basic run-down of what the job entailed at the interview and there was a discussion of the software system that the respondent used. This was the MS Word system. Ms Wannberg said that this was discussed because Mrs Smith wanted somebody who knew the program because "the girl before made a lot of mistakes, and they wanted someone who knew the system". Ms Wannberg's hours of work were 8.45 am to 5 pm. There was a lunch break which generally lasted for one hour.
Mrs Smith also described the circumstances leading up to the employment of Ms Wannberg in her evidence. She explained that the person who had been employed in the role of secretary/receptionist prior to Ms Wannberg had replaced Ms Marie Thorne, who had been a long-term employee of the respondent but who had taken maternity leave. Mrs Smith said that Ms Thorne went on maternity leave in December 1994. The person who replaced her, called Samantha, was with the respondent for approximately three months. Mrs Smith said that Samantha obtained a full-time job elsewhere and therefore left the employment of the respondent. Ms Wannberg was then employed as Samantha's replacement.
Mrs Smith said that she explained to Ms Wannberg that Ms Thorne would return to her employment with the respondent, at the latest, after the completion of her one year of maternity leave. She said that she also told Ms Wannberg that Ms Thorne could come back at any time prior to that, but that she had asked Ms Thorne to give Mrs Smith plenty of notice so that whoever was filling the position would have time to look for another position.
Ms Wannberg had no recollection of this being explained to her in the job interview. However, little turns on this. As it turned out, Ms Thorne has at no time returned to the employment of the respondent or indicated that she was or is going to. Indeed, Mrs Smith gave evidence that Ms Thorne told her in November 1995 that she would not be returning to the employment of the respondent.
To properly consider whether there was a valid reason for the termination of Ms Wannberg's employment, as expounded by Mr Jones, it is necessary to review the evidence in relation to the course of Ms Wannberg's employment with the respondent.
THE COURSE OF EMPLOYMENT
As stated earlier, Ms Wannberg commenced employment on 7 March 1995. In June 1995, Ms Wannberg took Ricky Wannberg and her daughter, Laura Wannberg (now aged 7½), to Singapore and Malaysia for a few days. She explained that this occurred following her separation from her husband. Ms Wannberg said in evidence that "I went through a really difficult time and I needed time to get away with my children". There was evidence that Ms Wannberg's husband had physically abused her and left her for another woman. Ms Wannberg had the permission of Mr Smith to take a few days' leave to travel to Singapore and Malaysia with her children. Ms Wannberg said that she was not away for anything longer than a week.
Ms Wannberg next took two days off in July because Ricky Wannberg had been granted his "wish" to meet Mickey Mouse in Adelaide by the Make A Wish Foundation. This occurred on 13 July 1995. Ms Wannberg said that she took two days off work to take this trip with her son. She explained that she made this time up by only taking half an hour for lunch instead of her allowed one hour lunch break. Ms Wannberg again said that she got the consent of her employer to take the trip to Adelaide. She said that she spoke to Mr Smith and Mrs Smith, and that Mrs Llewellyn also knew about the trip. She said that each of them was cooperative with respect to her desire to join her son on the trip to Adelaide.
Ms Wannberg said that after the return from Adelaide, Ricky was "still bright and bouncy, bubbly", but that he had a relapse in August 1995. Ms Wannberg said that Ricky had two weeks of emergency radiotherapy which his father took him to. This was every day for two weeks. Ms Wannberg said that she and her husband then wanted to take her son to Disneyland because "we knew he wasn't going to be with us for much longer". Ms Wannberg said that Mr and Mrs Smith knew of her intentions to take Ricky to Disneyland but that she had to postpone her trip by three months because the respondent had an oil and gas exhibition in New Zealand, and Ms Wannberg was not able to take leave because Mr and Mrs Smith and Mrs Llewellyn had to go to New Zealand. After that, there was another very busy period in the office because there was a computer exhibition coming up. Accordingly, she could not then take leave to take Ricky to Disneyland.
The trip to Disneyland did not occur until 14 November 1995. Ms Wannberg, her husband, son and daughter travelled to Disneyland with the knowledge and consent of Mr and Mrs Smith. They went to Los Angeles for about two weeks. On their return journey to Australia, when they arrived at Sydney international airport, Ricky suffered a number of seizures. He became unconscious at the baggage claim area and had to be rushed to the Prince of Wales Children's Hospital. Ricky was attended to, and medical staff flew back with Ms Wannberg and her family to Perth. When they arrived in Perth, there was an ambulance waiting at the airport which took the family directly to Princess Margaret Hospital. Ms Wannberg said that at the hospital, Ricky Wannberg was given 24 hours to live. Ms Wannberg said that "when we got back, it was a Saturday. I was very distressed. I was very tired. I hadn't slept for over 72 hours. I was with my son because he was going to die and I stayed there with him. On Monday, I knew I had to go back to work and I had spoken to the social worker and she knew how tired and emotionally drained I was". The social worker was Ms McCulloch. Ms Wannberg asked Ms McCulloch if she would get in touch with Mr Smith because Ms Wannberg was not emotionally up to returning to work on the Monday, as had been previously planned. I will return to this issue later.
After Ricky Wannberg was given 24 hours to live, he was referred to the Silver Chain Hospice and allowed to return home. Ms Wannberg said that at the time, they were just taking things a day at a time. The family did not know whether Ricky was going to survive "for Christmas or even the next week, we just took it as it came". Ricky had emergency radiotherapy to the front part of his brain to control his seizures. After that, he picked up a little and it was thought that he would survive for a little longer. Ms Wannberg then thought it would be financially beneficial if she could go back to work and she got in touch with Mrs Smith. This was after Christmas 1995.
For the two weeks leading up to Christmas, Ricky Wannberg had radiotherapy treatment every day. Ms Wannberg went with him for this treatment. After Christmas, it was arranged that Ms Wannberg would return to work from 12.30 pm to 5 pm each day. Ms Wannberg returned to work for two weeks. She then explained that she could not continue "because Ricky's health deteriorated tremendously and in my heart I could just not leave him and go to work". Ms Wannberg explained that during the two week period when she had been working part-time, she would take care of her son in the morning. When she attended at work, other arrangements were made to care for him in the afternoon. During that period, Ms Wannberg washed her son and gave him medicine. He could not eat or drink, so Ms Wannberg was feeding him orally by a syringe every 15 to 20 minutes. Ms Wannberg was administering the syringe herself. Ms Wannberg also read to her son and sat and played with him. This was despite the fact that Ricky could not then respond because he was paralysed. To move him around, Ms Wannberg carried her son, although sometimes her husband did that. Ricky was also being administered with morphine for pain control.
Ms Wannberg was asked how long she expected to be at home, caring for her son. She replied, "Goodness, Ricky should have died ages ago. Eight times, we were told he was going to die. It got to a stage where the doctors just wanted to throw the text books away because he defied everything they said. He went on, way past everyone's expectations".
Ms Wannberg also explained that in January 1996, although she was still separated from her husband, he moved into her home to be there for his son.
When Ms Wannberg went back to work part-time in January 1996, she said that she did not have much discussion with Mr and Mrs Smith during that time. This was because they were not often in the office because they were spending time with friends from the United Kingdom.
The last day that Ms Wannberg worked part-time was on 19 January 1996. She said that on 22 January 1996 Ricky "really deteriorated". That morning two hospice nurses and another nurse from Princess Margaret Hospital attended at Ms Wannberg's home. Ricky then had very shallow, laboured breathing. Ms Wannberg was again informed that her son was dying. Ricky Wannberg asked her not to go to work. Ms Wannberg said in evidence that she could not go to work.
Ms Wannberg said that she telephoned Mrs Llewellyn and said that she was unable to commit herself to go back to work because of her son's situation. She said that Mrs Llewellyn told her, "Don't worry, it's okay, we understand, just leave it with us". Ms Wannberg said that she spoke to Mrs Llewellyn because Mr and Mrs Smith were rarely in the office at that stage and Mrs Llewellyn was the only person she could communicate with.
From 22 January 1996, Ms Wannberg looked after her son. This continued in February and March 1996. She said in evidence that she did not leave the house for weeks. She said that for three and a half weeks she did not even go and buy a carton of milk. She said that she was "too afraid to leave him".
There was evidence of a number of communications between Ms Wannberg, or on her behalf, and the respondent or employees of the respondent from the time of the applicant's return from the trip to the USA. The first of these was contact by Ms McCulloch with Mr Smith. Ms McCulloch is a senior social worker at Princess Margaret Hospital with the oncology unit. She had helped Ms Wannberg from shortly after the time when Ricky Wannberg was first admitted to Princess Margaret Hospital after the diagnosis of the brain tumour.
After the return from the USA, Ms Wannberg spoke to Ms McCulloch about her return to work. Ms Wannberg asked Ms McCulloch if she could get in touch with Mr Smith because "emotionally, I wasn't up to it".
Ms McCulloch said that she first telephoned on Monday, 4 December 1995 and that she spoke to Mrs Llewellyn. She said that she advised her that Ms Wannberg was very distressed and that Ms Wannberg had asked her to telephone and let "the family" know the current situation. Ms McCulloch recalled that she left a message with Mrs Llewellyn, to ask Mr Smith to telephone her. The following day, Ms McCulloch received a telephone call from Mr Smith. Ms McCulloch's recollection was that Mr Smith said that he regarded Ms Wannberg as being on compassionate leave with pay and that the situation would be reviewed weekly. Ms McCulloch made an arrangement with Mr Smith that she would telephone him the following week with an update.
In cross-examination, Ms McCulloch explained that at the time of the conversation with Mr Smith, it was thought that Ricky Wannberg would not survive for very long and so they were thinking of perhaps a few days or a few weeks, but the agreement with Mr Smith was that the situation would be reviewed weekly. Ms McCulloch's understanding was that continuance of Ms Wannberg's employment was under review on a week by week basis (transcript 56).
On 12 December 1995, Ms McCulloch again spoke to Mr Smith. During that conversation, she advised Mr Smith that Ricky Wannberg had been discharged into the care of hospice services and medical support, and that Ms Wannberg was at home caring for Ricky. At that stage, given that Ricky had gone home, Ms McCulloch agreed with Mr Smith that Ms Wannberg would provide further information to him. Ms Wannberg agreed with Ms McCulloch that she would do that.
In his evidence, Mr Smith agreed that he spoke to Ms McCulloch in December, concerning Ms Wannberg's employment. He said that he told her that the respondent was a small company of approximately 10 people. He said that they could not do without a full-time secretary/receptionist and that "bearing in mind the terrible situation she is in, I would rather approach it on a week by week basis". He said that he was "100 per cent" sure that he told Ms McCulloch that in saying that he was treating the matter on a week by week basis, he was referring to the continuing employment of Ms Wannberg.
During her absence from work, Ms Wannberg also gave evidence of conversations that she had with people on behalf of the respondent. She said in evidence that she was "ringing the company on a weekly basis". She said that she "felt it was my obligation to do that, even though I just didn't have the strength to even talk to my own mother on the phone. I made sure I met my obligations as an employee to keep them up to date as to what was happening".
Ms Wannberg also gave evidence that she went to the Christmas party of the respondent on the boat of Mr and Mrs Smith. The Christmas party was in the week before Christmas. Whilst Ms Wannberg said that she did not discuss work with her employers on that day, she said that "I felt like I was one of them, part of the team. It was a great afternoon".
Ms McCulloch also spoke of a conversation with Mr Smith on 2 February 1996. Mr Smith, in his evidence, had no recollection of such a conversation but did not doubt it occurred. Ms McCulloch said that she informed Mr Smith that Ricky Wannberg was at home under the care of hospice services and that he was managing to survive perhaps longer than what was expected. She said she would have informed Mr Smith that it was difficult to predict his longevity. Ms McCulloch said that she informed Mr Smith of the unpredictability of the situation. Ms McCulloch's note of this conversation was tendered as Exhibit 5. The note read that she had informed Mr Smith of Ricky Wannberg's "current state and unpredictability of situation". The note immediately prior to that was of a telephone call from Ms Wannberg on 2 February 1996. This noted that Ricky Wannberg was on morphine and "hanging in there". It noted that he was not eating solids and was still in pain. It had also noted that Ms Wannberg had been on leave without pay since the end of January 1996. This provides the context for Ms McCulloch's note that she would have advised Mr Smith of "Ricky's current state".
Ms Wannberg also gave evidence of some telephone calls from Mrs Llewellyn. She said that in one of these, which was about two weeks prior to 10 March 1996, Mrs Llewellyn telephoned her at home and asked about Ricky Wannberg's condition. After that, Mrs Llewellyn asked where a particular file was located in the computer system.
There was a subsequent telephone call where Mrs Llewellyn wanted to know where to order envelopes. Ms Wannberg advised Mrs Llewellyn of this. During both conversations, she gave Mrs Llewellyn an update on the condition of Ricky Wannberg.
In her evidence, Mrs Llewellyn agreed that she spoke to Ms Wannberg on a number of occasions after Ms Wannberg was unable to return to work. She said that Ms Wannberg was not able to tell her when she was able to come back to work. She said that if she had a telephone call from Ms Wannberg, she would usually pass the message on to Mr or Mrs Smith. The first that she learnt of the termination of Ms Wannberg's employment was "after Mrs Smith told me, after she had spoken to Ms Wannberg".
In cross-examination, she agreed that she telephoned Ms Wannberg regarding minor office matters. She agreed that one was in relation to where a particular document in the computer system was stored. She also agreed that she had a second call with Ms Wannberg about the ordering of envelopes. She agreed that at no time did she say to Ms Wannberg during those telephone conversations that her employment was in jeopardy. This was in all probability because she did not know that it was.
There was also evidence of a visit to Ms Wannberg's home by Ms Carol-Anne Smith, and her friend, Ms Karen Williams, on 10 March 1996. According to Ms Wannberg, the visit lasted about two and a half hours. During the course of this visit, in which, according to Ms Wannberg's evidence, Ricky Wannberg had to be administered with Valium three times and was barely breathing, they spoke briefly about Ms Wannberg's employment. Ms Wannberg said that she did mention to Ms Smith that "I have got a job to go back to" and Ms Smith had said "Yes, I did."
In her evidence, Ms Smith said that the visit lasted for about an hour and a half to two hours, with the main body of the conversation being on Ricky Wannberg's condition and how everyone was coping with it. She said, however, that they did touch on the subject of work. She said (and Ms Wannberg agreed in her evidence) that Ms Wannberg had discussed going to Canada, where she had relatives, and starting a new life. However, Ms Smith said that Ms Wannberg had said that she did not have the financial resources to do that as yet. Ms Smith then said that "Michele then asked me, was I aware of - you know, did she still have a job at Energy Publications? I told Michele that, yes, as far as I was aware, she still have her job, but I also told Michele, and Michele was very much aware of the fact that I worked for my parents, and that I had fallen out with my parents long before Michele had stopped coming to work, that they didn't speak to me. I had no correspondence at all with my parents, and even though we worked in a small office, as I said, I worked out the back and my work did not involve my talking with them or dealing with them".
In cross-examination, Ms Smith agreed that she had no reason to believe other than that Ms Wannberg still had employment when she visited Ms Wannberg's home on 10 March 1996. She said that Ms Wannberg's situation was discussed on a regular basis at the office. She said that she was never told by her father or mother that Ms Wannberg's employment was at risk.
Ms Williams confirmed that she attended with Ms Smith at the home of Ms Wannberg on 10 March 1996. She said that she could not remember there being discussion of any issue about Ms Wannberg's employment with the respondent. She said that she did not hear Ms Smith say anything to Ms Wannberg about still having a job with the respondent.
On this issue, I prefer the evidence of Ms Wannberg and Ms Smith, which is largely to the same effect to that of Ms Wannberg. In making this comment, I do not doubt the veracity of Ms Williams' evidence. The continuing employment of Ms Wannberg at Energy Publications was obviously an issue of more significance to Ms Wannberg and Ms Smith than to Ms Williams. Therefore, it is not surprising that Ms Williams has no honest recollection of what was said. Further, there is always the possibility that Ms Williams was not actually present when this part of the conversation between Ms Smith and Ms Wannberg was held.
THE TERMINATION OF EMPLOYMENT
In her evidence in-chief, Ms Wannberg described the process by which she learnt of the termination of her employment as follows :
"On 12 March precisely at 9.40, I knew because I looked at the time when the phone rang. I was very distressed because Ricky's breathing was between 2 and 4 revs a minute. He was having mild seizures and he was in a coma, and the phone rang, and I went downstairs and I answered the phone and she said, 'Michele, it's Grace-Anne'. I was very surprised to have heard of her. That was the first phone call I had from Grace-Anne Smith while I was at home. She asked me how Ricky was and I told her Ricky's condition. I told her he was in a coma, he was having seizures, he was barely breathing. She said to me, 'I'm sorry. I've got bad news for you. I've got to let you go. The temp we have is leaving. She's going back to the UK'. They couldn't go through the process of training another temp until I got back because the computer show was starting and they needed someone full-time."
Ms Wannberg said that she had not received any indication prior to this that her employment was about to be terminated. She said that "to me, my job was the only light I had after all this emotional stress, after Ricky's death, to go back to - I knew sincerely I had a job to go back to". She said that she told Mrs Smith that she thought she had a job to go back to and that the timing of Ricky Wannberg's death was out of her control.
Ms Wannberg said that after receiving this news, she was "devastated". She said that "having to watch my son slowly die in front of my eyes and not being able to do anything for him, and then having to have lost my job a few days before Ricky died added so much hurt and pain to what I was already going through".
She said that after that, she had no further communication from the respondent.
As stated earlier, Ricky Wannberg died on 17 March 1996.
Mrs Smith's evidence about the conversation on 12 March 1996 was nowhere near as clear, coherent or convincing.
Mrs Smith said that in the period leading up to the termination of Ms Wannberg's employment, a temporary employee called Mandy had been employed. She said that the temporary employee was "going to join her sister in Sydney". Mrs Smith said that "her sister was getting married and she was being bridesmaid and - no, she was going to help her father who was running a show first". Mrs Smith said that Mandy probably gave two weeks' notice before she had to leave. She said that she was then aware of Ms Wannberg's circumstances at home. Mrs Smith said that when she was advised by Mandy that she wanted to leave, she talked it over with her husband. Mrs Smith then had to phone Ms Wannberg to find out exactly what her position was. She said that the only firm decision reached by her and her husband was to phone Ms Wannberg to find out what was happening. Mrs Smith said that in the telephone call with Ms Wannberg on 12 March 1996, she telephoned her and "said the temporary was leaving and I really had to have somebody in the job full-time because we were coming to one of our busiest periods". She said that she discussed Ms Wannberg's family circumstances during the telephone call and that she was told that Ricky Wannberg "was still bad", and Ms Wannberg "was still unable to come back to work". Mrs Smith said that she then "just assumed from the fact that her son was still bad that she [Ms Wannberg] couldn't" return to work. She then said that she did say to Ms Wannberg that she would have to look at getting somebody in on a full-time basis. She agreed that Ms Wannberg said that Ricky Wannberg was in a coma and having difficulty breathing and that she had to be with him. She said that from this, she presumed that Ms Wannberg would not be returning to work in the short term. However, I am not at all sure that this logically follows from what Ms Wannberg told Mrs Smith.
Mrs Smith said that she did not tell Ms Wannberg that she was terminating her employment. Mrs Smith said that the telephone call on 12 March 1996 related back to a telephone call that she made to Ms Wannberg after the USA trip in 1995. Mrs Smith claimed that she told Ms Wannberg in that conversation that she would seriously have to look at getting a full-time employee in January 1996. Mrs Smith claimed that she said in this conversation that "I would really need to seriously look at getting someone full-time, and then in January [Ms Wannberg] came back again on a part-time basis . . . I thought when I told [Ms Wannberg] in November that we could only, as a company, give it five weeks, and when I phoned [Ms Wannberg] that morning I said the temporary was leaving and I really had to have somebody in the job full-time because we were coming to one of our busiest periods" (transcript 134). Although "November" is used in this evidence, Mrs Smith indicated on other occasions in her evidence that she meant, after the USA trip in December 1995.
Mrs Smith did say, however, in her examination in-chief, that by telling Ms Wannberg that she did have to get somebody in full-time on 12 March 1996 that "I suppose" the employment of Ms Wannberg was being terminated.
The alleged telephone call by Mrs Smith to Ms Wannberg in 1995 was not put to Ms Wannberg during her cross-examination. Due to this, I acceded to an application by Mr Hammond to have Ms Wannberg recalled so that he could ask her questions about this conversation. This course is permitted by section 46(1) of the Evidence Act 1995 (C'th).
Ms Wannberg said that she didn't have a telephone conversation with Mrs Smith after her return from Disneyland. She said that when she got back from Disneyland, she did not communicate immediately with either Mr or Mrs Smith because Ms McCulloch did so for her. She said that she had no personal contact with either Mr or Mrs Smith until very close to the Christmas party. She asserted that the telephone conversation with Mrs Smith did not take place. She said that the first she had heard of the suggestion that she was told that her employment would or might be terminated in January 1996 after the return from Disneyland was when she heard it from Mrs Smith in the witness box.
In cross-examination, Ms Wannberg said that it was not possible that she could have forgotten this telephone call, despite the traumatic experiences that she had gone through.
I accept the evidence of Ms Wannberg in preference to that of Mrs Smith. Ms Wannberg's evidence was presented in a clear and coherent manner. My assessment was that she was an honest witness who was doing her best to recall events which were very traumatic to her. I also accept her evidence about the importance of her employment to her during the extremely difficult time that she would have had leading up to her son's death. As she explained in her evidence, the fact that she had employment to go back to was something stable that she could look to in the future. She would not have held this view if Mrs Smith had the alleged telephone conversation with her in December 1995.
Furthermore, Mr Smith, in his evidence, did not give any indication that such a telephone conversation was had by Mrs Smith on behalf of the respondent. As stated earlier, he agreed with the evidence of Ms McCulloch that on 5 December 1995, he informed Ms McCulloch that the employment of Ms Wannberg would be continued and monitored on a week to week basis. This is totally at odds with Mrs Smith's claim that she in effect terminated the employment of Ms Wannberg in early December 1995. This was the construction of events that Mrs Smith attempted to put on the alleged December conversation during cross-examination. She claimed (transcript 149) that if Ms Wannberg "couldn't come back to work in five weeks, her job was already terminated".
Mrs Smith alleged that this telephone conversation occurred when Ms Wannberg telephoned her to let her know that her son had gone into hospital. This is totally at odds with the evidence of Ms Wannberg which I accept on this point.
Mrs Smith denied the proposition put to her by Mr Hammond that she was making up the evidence about this conversation. Whilst I do not need to determine this question, I have little doubt from the evidence of Ms Wannberg and, indeed, Mr Smith, that such a conversation, at least in the terms alleged, did not take place.
Further, it was no part of the respondent's case, either in opening or in the respondent's summary of facts, filed with the Court, that the employment of Ms Wannberg was, in effect, terminated in December 1995. Indeed, the summary of facts made no mention of the alleged conversation between Mrs Smith and Ms Wannberg.
VALID REASON FOR TERMINATION
I have referred earlier to the submission by Mr Jones in closing that the valid reason for the termination of employment was that Ms Wannberg was not ready, willing or available to perform the work for which she was engaged and that it was an imperative that the respondent have a full-time non temporary person to perform the functions of secretary/typist in order that the office could efficiently operate, given that the office was moving towards a busy period in the lifecycle of the respondent.
I will review the evidence as to this shortly but firstly would make the observation that, prior to this submission, the respondent had not clearly or consistently put this forward as being the reason for the termination of employment.
After the termination of Ms Wannberg's employment, there was an article about it in the West Australian newspaper on 22 March 1996. The article had the headline, "Sack Blow for Mother of Dying Boy". The article contained the following :
"Energy Publications Managing Director, Shaun Smith, said that a temporary secretary had been employed by the company but once that person left, there was no choice but to employ a full-time replacement.
He claimed Ms Wannberg's work had not been up to standard. 'The only reason we kept her on as long as that was because of her situation', Mr Smith said."
In his cross-examination, Mr Smith agreed that he told the reporter from the West Australian that once the temporary secretary had left, there was no choice but to employ a full-time replacement, and that Ms Wannberg's work had not been up to standard. When it was put by Mr Hammond that there had been no evidence given whatsoever as to Ms Wannberg's standard of work (which was indeed correct), Mr Smith answered, "Well, Ms Wannberg's standard of work as far as I'm concerned at this hearing is not the subject. If her standard of work was the subject, then I would have prepared a totally and completely different brief. Her work is not, as far as I am concerned, the question." I then said, "Well, Mr Hammond has asked you the question, you have given no evidence as to Michele Wannberg's work standard. Your answer to that is : 'That is not the subject of the court case as you understand it.' Is that fair?" To this, Mr Smith said, "Correct."
There are a number of points to be made about this. The first is that Mr Smith was prepared to tell a reporter from the West Australian that Ms Wannberg's work had not been up to standard, when there is no evidence at all of this before the Court. Secondly, Mr Smith is reported as saying in the newspaper article that Ms Wannberg was only kept on by the respondent for as long as it did because of her situation. Whilst this was not directly put to Mr Smith by Mr Hammond, there was no evidence led by Mr Smith, in-chief or in re-examination, that he did not say this to the newspaper reporter. Further, there was no evidence before the court that the only reason the respondent kept Ms Wannberg on as long as they did was due to her situation with her son.
Thirdly, Mr Smith's comment in evidence that "if her standard of work was the subject, then I would have prepared a totally and completely different brief", is most curious. This is because Mr Smith, as an active Managing Director of the respondent, must have known of the reasons and circumstances leading to the termination of Ms Wannberg's employment. In the application before the Court, it is the employer who has the onus of satisfying the Court that there is a valid reason for termination. Therefore, if the standard of Ms Wannberg's work had anything to do with this, as was suggested by Mr Smith in the conversation with the newspaper reporter, then it was up to the respondent to raise this as an issue and lead evidence on the subject. However, it chose not to do so. The only inference that can be drawn from this is that Ms Wannberg's performance, when able to work, had nothing to do with the termination of her employment; yet Mr Smith told the reporter, in effect, that it did.
All of this has the effect of making it very difficult to characterise Mr Smith as a witness who is at all times prepared to be candid.
As to the circumstances which led to the termination of Ms Wannberg's employment, Mr Smith said that prior to the termination, the respondent "had a temporary who was doing a very good job and regrettably she decided that she was leaving at that stage to travel, as most temporaries do, and she was going to go to London".
I note at this stage that this evidence is different from that of Mrs Smith, who said that the temporary employee, Mandy, was going to Sydney. When I asked Mr Smith what he based his evidence on that "most temporaries travel", he answered that, "Well, most temporaries tend to float around. They - into one job, then the next, et cetera. It is the nature of their employment, in our experience". He said that there had been no permanent employee filling Ms Wannberg's position since November, "and we were now in March. We decided: we've got to look at the situation and decide, do we go into a situation where we employ another temporary and go through the retraining period, or do we make a hard-nosed business decision to return that position to full-time?" (transcript 97).
Mr Smith said that in addition, the respondent was entering a period when there was increased activity in the office. This was because the respondent was approaching a period when they ran the annual computer show in Western Australia. (This took place in April 1996.) Mr Smith said that the respondent had done this for 14 years. He said that then, "the activity in the office just goes crazy; phone call, phone calls, phone calls, phone calls. It doesn't stop, as well as paperwork and everything else. The whole office is in a buzz". Mr Smith said that the respondent needed a full-time employee to take up Ms Wannberg's position. He said that they could not have engaged another temporary for a short-term period because such an employee "would be lost".
Mr Smith then said that he had discussed with Mrs Smith Ms Wannberg's employment. He said that they were "very aware of the problems the girl was going through, but at the same time we had a business to run. We had other employees and we had to look after the future of our business which was our livelihood. I mean, we're in the latter end of our working life. We've got to look forward to how we can accommodate our future. We've got to accommodate the future of people who are the same age as Michele and beyond who work for us, and we discussed it and we were very concerned". Later in his examination in-chief, Mr Smith said that he thought he and his wife had "been more than fair as employers to have accommodated the situation as it was, and we really had to make a hard-nosed decision as to what we would do. We could not continue the way we were going, obviously - I mean, as Michele said earlier in her evidence, she had been told eight times her son was going to die. Well, we didn't know when the child was going to die, we didn't know how long that Michele would be required to be off work to recuperate from that death. So we had to make a decision. Do we bring in a temporary and re-train, then go on to an extended period of temporaries, or do we make that hard and difficult decision, 'I'm sorry, Michele, we can't hold your position any longer, we've got to have a full-time person on the desk'" (transcript 101).
Further, Mr Smith said that the decision to terminate Ms Wannberg's employment was "a very hard decision. We took the decision that our company needed a full-time person at the desk'" that Ms Wannberg worked at.
In relation to these passages of evidence, I make the following observations :
The claim by Mr Smith that there could somehow be a link between the continued employment of Ms Wannberg and the short-term or long-term viability of the respondent's business is unsupported by any evidence given to the Court. I regard the attempt by Mr Smith to link the continued employment of Ms Wannberg to Mr and Mrs Smith's long-term future and, indeed, the future of the other employees at the respondent as being a gross exaggeration.
Secondly, I also regard as an exaggeration Mr Smith's claim that a temporary employee engaged for a short period, presumably up until the time when Ms Wannberg was able to return to work, would be "lost". Whilst I accept Mr Smith's evidence that each business is unique, evidence given on behalf of the respondent suggests that it would not be correct to say that a short-term temporary employee would be "lost", even if the respondent was very busy in the second half of March 1996.
When cross-examined, Mr Smith was asked what particular skills a receptionist/secretary at the office of the respondent would need. He said that "those skills come with training and the knowledge that you gain by sitting in the office". Mr Smith was then asked again what those precise skills were. He answered, "Well, our business is very much a people's business." The following exchange then took place:
"I am asking you to tell me the skills that were difficult to obtain?---Well, if you would let me explain I will - and that's the point I'm making. Our skills are - is all involved with people, and those skills are dealing with people. They're dealing with people. They're dealing with people on the telephone. They're dealing with people through the correspondence that you receive and send out and - I mean, you're asking me a question which is very, very difficult to answer. You would really have to - and I know you can't do it - you'd really have to come and sit in my office for a day to understand - - -
Are you able to tell me anything other than the secretarial functions which were unique to your business that Michele Wannberg performed?---Putting it like that, in all truth, I can't answer that, no."
Further, Mr Smith said in cross-examination that the person who was employed after Ms Wannberg in the position of secretary/receptionist, Mrs Irena Williams, was obtained without great difficulty. Mr Smith said it was likely that Ms Williams was hired through the Commonwealth Employment Service. Ms Williams was employed on a three month probationary contract of employment but her employment was terminated prior to the three months.
Mr Smith also confirmed that the current secretary/receptionist at the respondent was a temporary employee. When asked whether he was satisfied with the services that this person was providing to the respondent, Mr Smith answered, "She is an absolute gem."
This evidence from Mr Smith does not suggest that there was any imperative to terminate the employment of Ms Wannberg in favour of a permanent employee.
In further cross-examination (122), Mr Hammond asked Mr Smith about the economic effect upon the respondent of employing Ms Wannberg as opposed to a temporary secretary. He said that "hopefully, it wouldn't cause any major problem".
In his re-examination, Mr Smith claimed that "the position Ms Wannberg filled was a critical position inasmuch as she not only did the secretarial, receptionist and all the duties that went with that but she was a liaison between the company and the clients. If you look at the people who have held that position in the past, we have had people who have been in that position up to five years and they build up a relationship between the company and the clients. At the end of the day, it is vitally important because our company and our business is people-driven".
In further re-examination, Mr Smith said that the temporary employee who had been employed during Ms Wannberg's absence in March 1996 "was doing a very good job".
This evidence, together with Mr Smith's evidence about the current temporary secretary/receptionist suggests that it is not that difficult to obtain a temporary secretary/receptionist to perform the function that Ms Wannberg did. This evidence therefore undermines the credibility of a reason given for Ms Wannberg's termination, that it was difficult to find a temporary employee who could fulfil the requirements of the position for the respondent.
In another part of his evidence, Mr Smith claimed that the week by week basis of Ms Wannberg's continued employment that he discussed with Ms McCulloch lasted 18 weeks. He said that if you take the period from the conversation with Ms McCulloch until the period when Ms Wannberg's employment was terminated, it worked out at approximately 18 weeks.
The actual period from 5 December 1995, being the date of the conversation with Ms McCulloch, to 12 March 1996, being the date of the termination of employment, was 97 days or about 14 weeks. Prior to this, Ms Wannberg was absent on the trip to Disneyland for about 2½ weeks. This was taken as unpaid leave, and was agreed to by Mr and Mrs Smith.
During December 1995, another daughter of Mr and Mrs Smith, Ms Linda Smith, filled in for Ms Wannberg. Ms Linda Smith was on leave from her normal employment. She was not paid by Mr and Mrs Smith for her work. According to the evidence of Mr Smith, she performed her work satisfactorily. When Ms Wannberg returned to work part-time in January 1996, Ms Linda Smith continued to work for the respondent, without pay, in the mornings. Therefore, during the period that Ms Linda Smith worked for the respondent, it could not be said that the respondent was suffering to any degree due to the absence of Ms Wannberg.
In addition, during the period just prior to Christmas to about 6 January of the following year, the respondent's office closes. Therefore, the respondent was not at a disadvantage during this period due to Ms Wannberg's unavailability.
The person who was employed because of Ms Wannberg's unavailability in late January and February 1996 (called Mandy) was employed as a temporary employee. As stated above, according to the evidence of Mr Smith, she performed her duties satisfactorily. Therefore, until the time that she resigned, the respondent had not been disadvantaged by the absence of Ms Wannberg, at least on the evidence of Mr Smith.
Mrs Smith gave some somewhat different evidence with respect to the work performance of Mandy. In re-examination, she claimed that the decision to terminate the employment of Ms Wannberg's employment occurred because "things were going badly wrong". She said that "if you are working with temporary staff, you haven't got someone with a full-time commitment to the job they are doing. You don't get the job done the same way. There are a lot of jobs like phoning, bad debts, and things like that that weren't being done. I just needed somebody fully committed to the job" (158).
However, the claim that a non-temporary employee was required is, to a degree, undermined by the fact that the person who was employed to take Ms Wannberg's position, Ms Irena Williams, was employed on a probationary basis, albeit it was envisaged that this could lead to permanent employment. As stated earlier, Ms Williams' employment was terminated prior to the end of the probationary period.
But even more undermining of the respondent's position is the claim that Ms Wannberg herself was, at least initially, a non-permanent employee.
This assertion was made by the respondent on the basis that Ms Thorne was on maternity leave. Mrs Smith said that the maternity leave commenced in December 1994 and that Ms Thorne could return at any time prior to, at latest, December 1995. When Ms Thorne first went on maternity leave, a person by the name of Samantha was employed in her place. She was employed as a temporary employee. Mrs Smith said in her evidence that she learned from Ms Thorne that she would not be returning to work in November 1995 because she was unable to make appropriate childcare arrangements.
Mrs Smith said that Ms Thorne told her in the second week in November that she would not be coming back to work. She said that she did not advise Ms Wannberg of this because Ms Wannberg "was just going to America, and I just didn't see the appropriate time to discuss it with her".
The position therefore seems to be as follows. Ms Marie Thorne, who was a permanent employee, went on maternity leave in December 1994. After she left, Samantha was employed as a temporary employee. Ms Wannberg was then employed as a non-permanent employee, according to the evidence of Mrs Smith, in March 1995. The employment of Ms Wannberg would be terminated if and when Ms Thorne decided to return to work. However, Ms Thorne informed Mrs Smith that she was not going to return to work in November 1995. After her return from the USA in early December 1995, Ms Wannberg was unable to work with the respondent for the rest of December. During this period, Ms Linda Smith filled in for the first three weeks of December and then there was a break at the office from just before Christmas until about 6 January 1996.
Ms Wannberg, together with Ms Linda Smith, then worked in the position of secretary/receptionist for the respondent for the period 8 January 1996 to 22 January 1996. After Ms Wannberg was unable to return to work on 22 January 1996, a temporary employee, Mandy, was engaged to work. She continued to work until she gave two weeks' notice which concluded, it seems, just prior to the termination of Ms Wannberg's employment. According to the evidence of Mr Smith, Mandy's employment was satisfactory. According to the evidence of Mrs Smith, raised for the first time in re-examination, there were aspects of Mandy's employment which were unsatisfactory.
Ms Wannberg was terminated on 12 March 1996. Just after that, Irena Williams was employed as a probationary employee. After the termination of the employment of Ms Williams, another temporary employee was engaged. This employee was described by Mr Smith as a "gem". According to evidence of Mrs Smith, this person has now done some interviewing for a full-time employee who was to commence shortly after this trial.
Given all of this, I do not accept that there was any imperative to terminate the employment of Ms Wannberg on 12 March 1996 due to there being any need to then engage a full-time, permanent receptionist/secretary.
Mr Smith's claim of there being some difficulty in finding someone with the particular skills necessary to fill the position of secretary/receptionist at the respondent was also undermined by the evidence of Mrs Smith.
Mrs Smith was asked in cross-examination what training is required in employing a new secretary/receptionist. Mrs Smith referred to the computer lists of the respondent, their subscription list, and the invoicing and normal office routine. She was asked how long the training process takes. She answered that "it doesn't take very long", although she said that this period could be "a week". She said that the training was done either by Mrs Llewellyn or the previous secretary/receptionist if there was an overlap in the changeover from one secretary/receptionist to the next. She said that Ms Linda Smith was not trained by herself but "was just shown what to do by my sister".
VALID REASON FOR TERMINATION OF EMPLOYMENT - THE LAW
In Kenefick & Ors v Australian Submarine Corporation Pty Ltd (1995) 62 IR 107 at 106, Wilcox CJ agreed with the judgment of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 that "valid" should be given the meaning of "sound, defensible or well-founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1)".
Wilcox CJ then said that "I think it follows that the reason must be genuine; that there must be a causal relationship between the reason and the termination, and that the termination must be a logical response to the employee's capacity or conduct, or the employer's operational requirements". The Chief Justice then said that it was not necessary in order to be a valid reason for the termination to be the only logical way of dealing with a problem.
In this case, the purported valid reason, as outlined by Mr Jones in his closing submission, was a combination of Ms Wannberg's capacity to work and the operational requirements of the respondent. The reference to Ms Wannberg's capacity is in the sense that she could not, due to her ongoing commitment to care for her son, return to work on 12 March 1996, when Mrs Smith telephoned her.
Mr Jones' submission was also that, due to the operational requirements of the respondent, it was then necessary for the respondent to employ a permanent employee in place of Ms Wannberg.
SECTION 170DE(1) - CONCLUSION
I have reviewed the evidence in relation to this aspect of the submission in the previous section of this judgment. In short, I do not accept that there was any operational requirement which made the termination of Ms Wannberg's employment a logical response to the problem that Ms Wannberg's unavailability created for the respondent.
I do not accept that the termination of Ms Wannberg's employment was sound, defensible or well-founded. In my opinion, there has been no evidence given which satisfactorily explains why a further temporary employee could not have been employed to work in place of Ms Wannberg until she was able to return to work. It would have inevitably been a relatively short period of time to Ricky Wannberg's death. As it was, this occurred 5 days after the termination of employment. After that, Ms Wannberg commenced employment with a new employer, Ashdown Enterprises, on 8 April 1996, some three weeks after the death of her son. Therefore, the additional period that the respondent would have had to employ a temporary if Ms Wannberg's employment had not been terminated is about four weeks.
For the reasons outlined above, the respondent has not discharged its onus of proof under section 170DE(1) and established that there was a valid reason for the termination of Ms Wannberg's employment on 12 March 1996. Therefore, the termination of her employment was in contravention of section 170DE(1) of the Act. Later in this judgment, I will discuss the appropriate remedy.
HARSH, UNJUST AND UNREASONABLE
Even if I had found that there was an otherwise valid reason for the termination of Ms Wannberg's employment, the applicant has established, on the balance of probabilities, that the termination of her employment was harsh, unjust and unreasonable, and therefore was not valid due to the combined effect of section 170EDA(1) and section 170DE(2) of the Act.
The meaning of the phrase "harsh, unjust and unreasonable" was considered in Bostik Australia Pty Ltd v Gorgevski (1992) FCR 20 at page 28, where Sheppard and Heery JJ said that :
"These are ordinary, non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any re-definition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but, of course, not conclusive. Other matters have to be considered, such as the gravity of the employee's misconduct".
This passage was quoted with approval by McHugh and Gummow JJ in Byrne & Frew v Australian Airlines (1995) 131 ALR 422, page 463, albeit in a different context than that of the Industrial Relations Act 1988 (C'th).
Jenkinson J in Gregory v Philip Morris Ltd (1988) 88 ALR 455 at 457 said that:
"The question whether the termination was unreasonable is, I think, one of fact. This question requires a determination, by reference to moral values and prudential considerations current in the community, of what the tribunal of fact thinks a reasonable employer in the circumstances would have decided to do at the time when the Respondent terminated the Appellant's employment. The process is similar to that by which the question is, whether a personal injury or damage to a chattel has been caused by a person's negligence are resolved : what does the tribunal of fact think a reasonable person, placed in the circumstances in which that person was placed, would have done? The tribunal of fact has regard to prevailing moral values, prudential considerations and, sometimes, normal skills (as of driving a car or operating a crane, for example) in deciding what that reasonable person would have done.".
Part of this passage was quoted with approval by Lee J in Aitken v CMETSWU, WA Branch (1995) 63 IR I at page 7. Earlier on in his judgment, his Honour had quoted from part of the passage which has been quoted above of the judgment of Sheppard and Heery JJ in Bostik (Australia) Pty Ltd v Gorgevski.
At page 6, Lee J commented that :
"The words 'harsh, unjust or unreasonable' used in Section 170DE of the Act in Division 3 (Termination of Employment) are part of interrelated provisions designed to implement agreed international standards for the proper termination of an employee's services. (See : M Pittard, 'The Age of Reason', Employment Security (1994), p39; RC McCallum, 'International Standards in Industrial Relations and Their Application in Australia' (1995) 2 TJR 163 at 182.) The object of these provisions of the Act is to institute a level of practice in the management of labour which will tend to preserve the worth of the asset that labour represents. Underlying the provision is the awareness of parliament that legislative intervention for the protection of employees is in the public interest in an economy that is subject to international influences which tend to promote less security in employment and to demand more flexibility in the use and skills of labour."
To use the test set out by Jenkinson J in Gregory, and endorsed by Lee J in Aitken, I do not think, having regard to moral values and prudential considerations current in the community, a reasonable employer, in the
circumstances of this case, would have decided to terminate the employment of Ms Wannberg at the time when the respondent terminated her employment. This is for the following reasons :
As stated earlier, there was no valid reason why a temporary employee could not have been employed until such time as Ms Wannberg was able to return to work after the death of Ricky Wannberg. This time period turned out to be no more than four weeks after the termination of employment.
At the time when Ms Wannberg was informed of the termination of her employment by Mrs Smith, Ms Wannberg was, to Mrs Smith's knowledge, emotional about the condition of her son (156). Mrs Smith agreed that Ms Wannberg had told her, prior to the point in the conversation where the employment was terminated, that Ricky Wannberg was having difficulty breathing and was in a coma. To have then terminated the employment of Ms Wannberg because she could not return to work due to her caring for her dying son was harsh, unjust or unreasonable.
I also think it was harsh, unjust or unreasonable of the respondent to inform Ms Wannberg of the termination of her employment in the particular circumstances of this case, by telephone. As stated by Lee J in Aitken at page 6, "the circumstances and manner of termination of an employee's services can affect an employee's self-esteem and confidence, and impact adversely on the employee's ability to secure further employment. It is, therefore, considered to be in the public interest to ensure that employees whose services are terminated are treated in a fair and reasonable manner, enabling them to retain confidence in their self-worth, and reducing the prospect that they will have cause to rely on relief payments from public revenue". As stated, fortunately, in this case, Ms Wannberg was able to secure alternative employment reasonably quickly after the termination of her employment.
However, this does not detract from the fact that the termination of her employment was carried out in an unreasonable manner by Mrs Smith's use of a telephone, rather than a face to face discussion. Mrs Smith, in her evidence, said that she did not consider meeting with Ms Wannberg face to face to discuss the matter. She said that "I would have found that hard, I suppose". She agreed with the proposition put to her by Mr Hammond that "you thought it would be easy to effect the dismissal over the telephone" (155). In my opinion, this showed an unreasonable lack of empathy with Ms Wannberg's situation. It is clear that Mrs Smith placed greater importance on the anguish that she felt in terminating Ms Wannberg's employment than the feelings that Ms Wannberg would have had when her employment was going to be terminated whilst she was caring for her dying son.
Mr and Mrs Smith had been made aware by a Dr Catherine Cole by letter dated 4 August 1995 that Ricky Wannberg's disease had returned, and was receiving palliative care. The letter said "during this stressful time it is vital that his mother be with him to provide care and support. Your understanding in providing Ms Wannberg with the necessary leave from work would be greatly appreciated".
Mr and Mrs Smith, in their evidence, said a number of times that they had sympathy for Ms Wannberg's position. The question of whether someone has sympathy for another is often well judged by a consideration of the actions of the person towards the other. In this case, the action taken by Mr and Mrs Smith on 12 March 1996 showed a distinct lack of sympathy towards Ms Wannberg. If there was genuine sympathy for Ms Wannberg's situation, Mr and Mrs Smith would not have terminated her employment with the respondent. A reasonable employer, to use the expression of Jenkinson J in Gregory, would not have done this. If Mr and Mrs Smith had been truly sympathetic to Ms Wannberg's position, they would have tried to discuss with doctors and Ms McCulloch the anticipated longevity of Ricky Wannberg prior to the termination of employment. They would also have discussed the matter with Ms Wannberg face to face and told her, if it be true (which I do not think it was) that they now needed a non temporary secretary/receptionist. There would have been more open and direct communication from Mr and Mrs Smith to Ms Wannberg. For example, when Mr Hammond asked Mr Smith whether he discussed the (alleged) difficulty in training new staff with Ms Wannberg in March 1996, Mr Smith replied, "I never talked to" Ms Wannberg. Even accepting that Mr Smith is a busy managing director of a small business, he ought to have delegated to someone the role of properly and openly discussing Ms Wannberg's situation with her. This was demanded by the particular circumstances of Ms Wannberg's situation. There can be few things more devastating than having to care for your child in the last stage of a terminal illness. Then, on top of that, to have her employment terminated without valid reason at the time and in the manner in which it was, was at the very least, harsh, unjust and unreasonable.
SECTION 170DF(1)(f)
In so far as is relevant to these proceedings, section 170DF(1)(f) provides that an employer must not terminate an employee's employment for one or more of, or reasons which include, the reason "family responsibilities".
The expression "family responsibilities" is not defined in the Act. However, as will be set out below, there are provisions in the Act which assist in an understanding of the notion of "family responsibilities".
Here, a reason for the termination of Ms Wannberg's employment was that she was not available to continue with her employment duties on 12 March 1996; and/or she was not able to say precisely when she could return to work. Putting it another way, if Ms Wannberg was able to continue with her employment responsibilities on 12 March 1996, her employment would not have been terminated. The reason why Ms Wannberg was unable to do this was because she was caring for her dying son. Ricky Wannberg was at that time in the final stages of dying from a terminal illness. The precise state of his health at that time has been set out earlier in this judgment.
If the need, or desire, of a mother to not attend work because she is caring for a dying, dependent child is a part of a "family responsibility", for the purposes of the Act, then a reason why Ms Wannberg's employment was terminated was because of her family responsibilities. If this is the case, then section 170DF(1)(f) will, prima facie, have been contravened.
I now return to the issue of what is meant by "family responsibilities" in section 170DF(1)(f) of the Act. The objects of the Act are set out in section 3 of the Act. Section 3 states that the principal object of the Act is to provide a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia by (so far as is relevant) . . . (g) helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
A different approach was taken by the Equal Opportunity Tribunal of Western Australia in Ryan v Shire of Shark Bay (1992) EOC 92 - 441 and Churchill v Town of Cottesloe (1993) EOC 92 - 503, although both of these cases were decided before the decision of Nathan J in Merlin Gerin, and were decided before the amendments to the Industrial Relations Act as contained in the Industrial Relations Reform Act, 1993, which came into force on 30 March 1994.
In Ryan, the complaint before the tribunal embodied, amongst other things, a claim relating to dismissal on the ground of racial discrimination. Such a claim, if proved, would contravene the Equal Opportunity Act (WA). However, an award of the Australian Industrial Relations Commission, which covered the employment of the applicant in that case, also prohibited termination of employment on the ground of race.
The tribunal concluded, at page 79, 132, that the award and the then Industrial Relations Act did not cover exhaustively the subject matter of the dispute concerning the detriments allegedly experienced by the complainant in the course of his employment. Therefore, the tribunal considered that there was jurisdiction in the tribunal.
In the alternative, the tribunal found that the provisions of the award did not purport expressly to deal with the general subject matter of discrimination and was expressed in general terms. There was therefore an "untouched" area, capable of being dealt with by supplementary State laws as to what constitutes termination on the ground of race and as to what form of relief ought to be provided, where discriminatory circumstances were disclosed. The tribunal said that the award did not deal with these matters, or purport to cover the field in that regard, with the result that the Equal Opportunity Act (WA) continued to apply (page 79, 133).
In Churchill v Town of Cottesloe, a case dealing with discrimination in employment on the ground of disability, the tribunal referred to and adopted its earlier decision in Ryan. In Churchill, the issue was whether the Equal Opportunity Act did not apply because of the presence of a clause in a federal award dealing with disability discrimination.
These decisions of the tribunal are distinguishable on the basis that they do not concern the reforms to the Industrial Relations Act which were contained in the Industrial Relations Reform Act 1993. These reforms were considered, albeit strictly obiter, by Nathan J in Merlin Gerin. This judgment was delivered on 29 April 1994. However, the judgment of Nathan J does not purport to decide any jurisdictional issues relating to family responsibilities, termination of employment or congruence between the Act and the Equal Opportunity Act (Vic).
The judgment was referred to in an article by Associate Professor Phillip Tahmindjis in an article, "The EEO Practitioner and the New Industrial Laws", Australian Labour Law Reporter, CCH, paragraph 85 - 021.
Associate Professor Tahmindjis considers in the article whether anti-discrimination procedures are an adequate alternative remedy to the Industrial Relations Act. At page 80, 103, the Associate Professor says that his view, on balance, is that in matters which are within the jurisdiction of an industrial tribunal, anti-discrimination procedures are not an adequate alternative remedy. "They are meant to cover the panoply of discrimination complaints and specialist industrial tribunals should be left to handle matters in which they are experts." However, the Associate Professor states that in his opinion the matter is far from clear. The Associate Professor then continues to state that if anti-discrimination procedures are not an adequate alternative remedy, "the applicant will have the choice of proceeding either under the federal law or the anti-discrimination procedures (with the likely choice being the federal procedures). Note that if the basis of the termination is covered by an award or agreement within the purview of the federal industrial legislation (see the recent decision in Merlin Gerin(Australia) Pty Ltdv Wojcik & Ors (1994) EOC 92 - 592), then the anti-discrimination legislation and procedures are overridden to the extent that they are inconsistent with that industrial legislation, award or agreement."
Associate Professor Tahmindjis then considers the residual operation of State anti-discrimination legislation regarding dismissals, because of the exceptions in the Industrial Relations Act, which does not apply to, for example, casual employees engaged for short periods. Associate Professor Tahmindjis says that as the total coverage of the Industrial Relations Act is narrower than that of anti-discrimination laws, the latter will be "left to pick up the slack" (page 80, 104).
With respect to the question of inconsistency between the Industrial Relations Act and relevant State anti-discrimination legislation, Associate Professor Tahmindjis, at page 80, 105, refers to section 109 of the Constitution. The Associate Professor states that an inconsistency can arise where the intention of the federal law is to cover the field and/or the federal and state laws are directly inconsistent. (See also, for example, the discussion in P Hanks, Australian Constitutional Law, 5th Edition, 1994, Butterworth, paragraphs 6.014 ff.) The Associate Professor states that with respect to what he calls the "unfair dismissal provisions" of the Industrial Relations Act, there is no federal intention to cover the field, as they expressly do not operate and give way to laws where an alternative remedy exists. Generally, I agree with this. The author then states that to the extent that the Industrial Relations Act covers most (but not all) forms of employment or work, there can be a direct inconsistency between the Industrial Relations Act and (in the example he considers) the age retirement provisions of State and Territory Acts.
In the end, I think the correct approach in considering whether the relevant sections of the Equal Opportunity Act (WA) are operative, given section 109 of the Constitution and section 170DF(1)(f) of the Act, is to consider whether section 170DF(1)(f) covers the field of dismissal from employment on the prohibited grounds it sets out, or if not, whether there is any direct inconsistency between the two. Although I have received no specific submissions on this issue, my preliminary view is that the remedies available for an unlawful termination of employment where a reason for termination is family responsibility under the Act, can co-exist with a claim for compensation under the Equal Opportunity Act (WA), sections 35A, 35B and 127. Generally, an application for relief under the latter law should be made to the Equal Opportunity Tribunal, which is the specialist tribunal set up to hear complaints under the Equal Opportunity Act. However, as the issue has been raised, I should state that in my view section 35B of that Act has not been contravened because there is no evidence that Ms Wannberg has been treated less favourably than the respondent would have treated a person who was absent from the position of secretary/receptionist with the respondent but where the absence did not have its origin in the family responsibilities of the employee.
A final issue which I have considered is whether the Court could hear a complaint made under the Sex Discrimination Act (Commonwealth) via the associated jurisdiction under section 430 of the Act. Section 430 has been quoted above. A complaint under the Sex Discrimination Act is ordinarily made to the Human Rights and Equal Opportunity Commission ("the Commission"), established by the Human Rights and Equal Opportunity Act, 1986 (Commonwealth) : see section 50 of the Sex Discrimination Act. Section 50(1) provides that a complaint alleging that a person has done an act that is unlawful by virtue of the provisions of Part II of the Sex Discrimination Act may be lodged with the Commission. Part II of the Sex Discrimination Act concerns the prohibition of discrimination. Section 14 deals with discrimination in employment or in superannuation. Section 14(3A) states that it is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibilities by dismissing the employee. The expression "family responsibilities", as defined in section 4(1) of the Sex Discrimination Act, is to have the meaning given by section 4A of that Act. Section 4A(1) defines "family responsibilities" to mean responsibilities of the employee to care for or support a dependant child of the employee, or any other immediate family member who is in need of care or support. Section 7A of the Act states as follows :
"For the purposes of this Act, an employer discriminates against an employee on the ground of the employee's family responsibilities if :
(a) the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances are the same or not materially different; and
(b)the less favourable treatment is by reason of :
(i) the family responsibilities of the employee; or
(ii) a characteristic that appertains generally to persons with family responsibilities; or
(iii) a characteristic that is generally imputed to persons with family responsibilities."
This section is different from section 170DF(1)(f) of the Industrial Relations Act, which simply provides that an employer must not terminate an employee's employment for a reason which includes one of the prohibited reasons. Section 7A of the Sex Discrimination Act requires an analysis of the treatment of an employee, as compared with another employee, real or hypothetical, without the family responsibilities of the employee in question, in circumstances that are the same or not materially different.
On the facts of this case, in my opinion, this would require an analysis of how the respondent would have treated a secretary/receptionist who was absent from work for the same period prior to 12 March 1996 and for the same anticipated, temporary but uncertain period after 12 March 1996. There is no evidence that Ms Wannberg was treated less favourably than such a hypothetical employee. Therefore, I do not believe it could be established that there has been unlawful discrimination under the Sex Discrimination Act under section 14(3A) of that Act. Therefore, I do not believe that the Human Rights and Equal Opportunity Commission would find any complaint before it substantiated and make a declaration for the payment of damages pursuant to section 81(1)(b)(iv) of the Sex Discrimination Act. As a result, I need not consider whether I could award damages to the applicant using the associated jurisdiction of this Court under section 430 of the Act, for a contravention of the Sex Discrimination Act.
SECTION 170DC
This section states that an employer must not terminate an employee's employment for reasons relating to the employee's conduct or performance unless the employee has been given the opportunity to defend himself or herself against the allegations made. Given my finding in relation to the contravention of section 170DE of the Act, it is not necessary to determine whether section 170DC has been contravened.
The termination of Ms Wannberg's employment was, in part, because of her absence from work on and after 12 March 1996. To this extent, it could be said that the reason for termination related to Ms Wannberg's performance although the requirement in section 170DC(a) that the employee have the opportunity to defend themselves against the "allegations made" does not seem to readily apply to a situation like the present, given the particular reasons for Ms Wannberg's absence from work. However, given my finding in relation to section 170DE, I do not have to finally determine this issue.
COMPASSIONATE LEAVE
As stated earlier, Mr Hammond claimed on behalf of Ms Wannberg two days' compassionate leave pursuant to clause 25 of the Clerks (Wholesale and Retail Establishments) Award. This clause provides an employee with an entitlement on the death of, amongst other people, a child to leave up to and including the day of the funeral of the child, such leave being for a period not exceeding two days in respect of any such death. The clause states that such leave shall be without loss of ordinary pay.
Ricky Wannberg's death occurred on 17 March 1996. By this time, Ms Wannberg's employment had already been terminated. Clause 25 deals with a current employee. I do not think it can be applied to a person who was formerly an employee, even one such as Ms Wannberg, whose employment was wrongly terminated in contravention of the Industrial Relations Act. Therefore, Ms Wannberg is not entitled to any remedy based on clause 25 of the award.
DAMAGES FOR BREACH OF SECTION 170DB
As stated earlier in this judgment, in his closing, Mr Jones conceded that there had been a breach of section 170DB of the Act, in that Ms Wannberg should have been provided with at least two weeks' notice or, alternatively, compensation instead of notice pursuant to section 170DB(4). Mr Jones conceded that the Court should make an order requiring the respondent to pay to the applicant an amount of damages equal to the amount of the compensation which, if it had been given by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section, pursuant to section 170EE(5) of the Act.
Section 170DB(4) states that this amount must equal or exceed the total of all amounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period. As stated, the period in this case is two weeks. Ms Wannberg's annual salary was $25,000. Two weeks' gross wages is $961.54. I will make an order that this amount be paid to Ms Wannberg for the breach of section 170DB of the Act.
REMEDY FOR BREACH OF SECTION 170DE(1) AND SECTION 170DF(1)(f)
The appropriate remedy in this case for the breach of section 170DE and section 170DF of the Act is compensation. Section 170EE(2) states that if the Court thinks, in respect of a contravention of a provision of the Division, constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may, if the Court considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay to the employee compensation, in such amount as the Court thinks appropriate.
In this case, it was agreed between the parties that reinstatement was impracticable. I agree with this.
I also think it appropriate in all the circumstances of the case to make an order requiring the payment of compensation.
Section 170EE(3) states that in working out the amount of compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment. However, section 170EE(3) states that the compensation must not exceed the amount of remuneration that would have been received by the employee in respect of the period of six months that immediately followed the day in which termination took effect, if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment, at the rate at which he or she received remuneration immediately before the termination took effect. As stated, Ms Wannberg's annual salary was $25,000. Therefore, the maximum amount that she can be awarded by way of compensation under section 170EE is $12,500.
The Court has decided, in a number of cases, that the appropriate way to approach the statutory cap on compensation is to consider the issue of compensation as if the cap were not present, then if the amount of compensation would exceed it, award the maximum amount of compensation : see, for example, Cox v South Australian Meat Corporation (1995) 58 IR 254 and Perrin v Des Taylor Pty Ltd (1995) 60 IR 293.
Lee J, in Aitken, at page 9, said that "in assessing the compensation that is appropriate, the Court will have regard to what is reasonable in the circumstances, and look at what would have been likely to occur, had the Act not been contravened (see : Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCA 199 at 211; 57 IR 50 at 61-62 per Wilcox CJ). The Court will consider the detriment occasioned to the employee by the employer's contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences".
In this case, I consider that, had the respondent not contravened the sections of the Act, Ms Wannberg would have remained employed by the respondent until the death of Ricky Wannberg on 17 March 1996. Further, I consider it likely that she would have returned to the employment of the respondent on or about 8 April 1996, the date when she commenced employment with Ashdown Enterprises. There was no evidence that Ms Wannberg has not properly performed her duties at Ashdown Enterprises or would have been unable to properly perform her duties with the respondent, had she recommenced work there on 8 April 1996. Indeed, Ms Wannberg described her employment with Ashdown Enterprises as going "great".
I think that if Ms Wannberg had remained in the employment of the respondent, this would have continued, at least in the medium, if not long term. In saying this, I have regard to the lack of any evidence of any problem with Ms Wannberg's standard of work by the respondent, and that the respondent's evidence, from Mr and Mrs Smith, indicated that secretaries/receptionists had been employed for long periods of time by the respondent in the past. Ms Wannberg remains separated from her husband. She has a seven year old daughter who is dependant upon her. Therefore, Ms Wannberg needs to be employed to support herself and her daughter. Whilst there was some evidence of Ms Wannberg having at one stage an intention to travel to Canada, after Ricky Wannberg passed away, this was no more than a statement of possibility which Ms Wannberg made to Ms Carol-Anne Smith and Ms Karen Williams during their visit to Ms Wannberg on 10 March 1996. Further, even in that conversation, this statement of possibility was tempered by Ms Wannberg saying she had a lack of financial resources to fund such a trip.
Ms Wannberg's salary with the respondent was $25,000 per annum. Her salary with Ashdown Enterprises is $21,000 per annum. Ms Wannberg was unemployed from 12 March 1996 to 8 April 1996. This is a period of 26 days or approximately four weeks. She has been compensated for two of these weeks by way of the damages ordered for the breach of section 170DB. With respect to the remaining two weeks, she will have incurred the same loss of $961.54.
In addition to this, there is the ongoing loss of $4,000 per annum, being the difference between her salary with the respondent as opposed to that with Ashdown Enterprises. Such a loss would only have to occur for three years for the applicant's loss, together with the loss of $961.54 referred to, exceed the maximum amount of compensation permitted to be ordered to her under the Act. This would, of course, not need to be three consecutive years.
In all the circumstances, therefore, I think it appropriate to order that the respondent pay to the applicant the sum of $12,500. In making this order, I have taken into account the normal contingencies which affect the capacity of an ongoing employment relationship to continue.
In his closing submissions, Mr Hammond also sought compensation for the mental distress suffered by Ms Wannberg due to the termination of her employment in the particular circumstances of this case. I have no doubt that the termination of Ms Wannberg's employment did add to the anguish and distress that she was suffering on 12 March 1996 and thereafter. This is supported by Ms Wannberg's evidence and also that of Ms McCulloch, who counselled Ms Wannberg in relation to the distress that the termination of employment had upon Ms Wannberg.
Compensation for mental distress was said to be not inappropriate by Lee J in Aitken at page 9. Subsequent to that, Madgwick J in Burazin v The Blacktown City Guardian, unreported, IRCA 660/95, 15 December 1995, doubted whether such compensation could be awarded. In Brackenridge v Toyota Motors Corporation (Australia) (unreported), IRCA 162/96, 19 April 1996, Beazley J considered the judgment of Lee J in Aitken and respectfully disagreed that compensation for mental distress was available under section 170EE of the Act. Her Honour considered that this was clear from the structure of the section. In particular, her Honour said that if compensation, in subsection 170EE(2) was wide enough to encompass damages for mental distress, it would mean an applicant's entitlement to such compensation would be dependent upon the Court's determination as to whether reinstatement was practicable, notwithstanding that the mental distress would have been suffered in any event. This is because compensation can only be awarded where reinstatement is impracticable.
Given the fact that, absent awarding compensation for mental distress, I have decided that it is appropriate to award to Ms Wannberg the maximum amount of compensation that can be awarded under the Act, it is not necessary for me to determine whether in this case I should follow the judgment of Beazley J in Brackenridge or Lee J in Aitken; although I think there is a logical force in the reasoning of Beazley J as stated in Brackenridge.
I will order that the amounts referred to above be paid to the applicant within 14 days of the date of the order.
COSTS
Section 170EHA(1) provides that if, in relation to a matter referred to the Court under section 170ED, the Court is satisfied that a party to the proceeding has caused any other party to the proceeding to incur costs because of an unreasonable act or omission of the first-mentioned party in connection with the conduct of the proceeding following the referral, the Court may order the first-mentioned party to pay all or part of the costs incurred by that other party.
In his closing submission, Mr Hammond did not make any application for costs. However, I do not think that this necessarily forecloses any such application being made. Whether such an application is made is a matter for the applicant. Without foreshadowing whether any such application would be acceded to, I will allow the applicant liberty to apply for costs. However, it may be appropriate for such an application to be made, particularly given that the concession in relation to section 170DB was not forthcoming until Mr Jones' closing submission. If such an application is made, it will need to be supported by an affidavit, setting out the costs claimed, and written submissions as to the reasons why the Court is urged to make a costs order.
ORDERS
Therefore, the Court will make the following declarations, orders and directions:
The respondent terminated the employment of the applicant in contravention of section 170DB of the Industrial Relations Act, 1988 ("the Act").
The respondent terminated the employment of the applicant in contravention of sections 170DE(1) and 170F(1)(f) of the Act.
For the contravention of section 170DB of the Act, the respondent is to pay to the applicant the amount of $961.54, within 14 days of the date of this order.
For the contravention of sections 170DE and 170DF(1)(f) of the Act, the respondent is to pay to the applicant compensation in the sum of $12,500, within 14 days of the date of this order.
There be liberty to the applicant to apply to the Court, by no later than 7 August 1996, for an order for costs.
If the applicant makes an application for costs under the previous order, such application is to be supported by an affidavit and written submissions.
If an application for costs is made, the respondent shall file and serve any affidavit and written submissions in reply by 4 pm on 14 August 1996.
If an application for costs is made, the Court will reserve its decision in relation to costs.
I certify that this and the preceding 67 pages are a true copy of the reasons for decision of Judicial Registrar Ritter as recorded in the transcript and revised by the Judicial Registrar
Associate :
Dated : 31 July 1996
APPEARANCES
Counsel for the Applicant: Mr J Hammond
Solicitors for the Applicant: Hammond Worthington Prevost
Representative for the Respondent: Mr D Jones
Chamber of Industry and Commerce
of Western Australia
Dates of Hearing : 15 July1996
Date of Judgment : 31 July 1996
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