Wood v Bayfield Newport Hotel Pty Ltd

[1997] IRCA 68

DECISION NO:68/97

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - Review of decision of Judicial Registrar - whether change in place of work and proposed changes to shifts resulted in termination at the initiative of employer

Workplace Relations Act 1996 s 170EA

Reader v Wyndham Lodge Nursing Homes Inc (1995) 65 IR 253
Mohazab v Dick Smith Electronics No.2 (1995) 62 IR 200
Jackson v Elmerside Pty Ltd (unreported, 3 February 1997, Farrell JR)

No. NI 2508R of 1995

DOROTHY WOOD v BAYFIELD NEWPORT HOTEL PTY LTD

MOORE J
SYDNEY
13 March 1997

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )     No. NI 2508R of 1995
  )
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:  DOROTHY WOOD

Applicant

AND:      BAYFIELD NEWPORT HOTEL PTY LTD

Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     13 March 1997

ORDER OF THE COURT

THE COURT ORDERS THAT:

1. The application for review is dismissed.

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

IN THE INDUSTRIAL RELATIONS      )
  )
COURT OF AUSTRALIA               )     No. NI 2508R of 1995
  )
NEW SOUTH WALES DISTRICT REGISTRY )

BETWEEN:  DOROTHY WOOD

Applicant

AND:      BAYFIELD NEWPORT HOTEL PTY LTD

Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     13 March 1997

REASONS FOR JUDGMENT

This is an application under s 377 of the Workplace Relations Act 1996 ("the Act") brought by Mrs Dorothy Wood ("the applicant") against a determination by a Judicial Registrar on 4 July 1996. The Judicial Registrar dismissed an application brought by the applicant alleging that her employment with Bayfield Hotels (Newport) Pty Ltd ("Bayfield") had been terminated on 4 June 1995 in contravention of provisions of the Act. Claims had also been brought in the Court's accrued jurisdiction. The principal ground on which the Judicial Registrar dismissed the application was that there had been no termination of the applicant's employment at the initiative of Bayfield. The rights conferred by Part VIA of Division 3 of the Act arise only if the termination is at the initiative of the employer.

It was agreed that the review should be conducted by reference to the transcript of the evidence given before the Judicial Registrar and the exhibits that had been tendered in those proceedings.  As a consequence, any assessment by the Judicial Registrar of the witnesses in determining a dispute about primary facts is one that the Judge undertaking the review cannot ignore.  Any such assessment should be accepted by the Judge:  see Reader v Wyndham Lodge Nursing Homes Inc (1995) 65 IR 253 at 258. That limit is a material one in these proceedings. Central to the applicant's case was a conversation on 4 June 1995 she had with Mr Kirk who was the manager of the hotel at which the applicant had been employed. In relation to the applicant, the Judicial Registrar said:

"A finding cannot be made in relation to the applicant's credit save that I found her a vague and imprecise witness due to faulty recollection."

This is to be contrasted with what the Judicial Registrar said about Mr Kirk:

"Mr Kirk, I regarded as an impressive kindly and truthful witness."

I will return to the conversation of 4 June 1995 shortly.

In the review there was no suggestion that the findings of the Judicial Registrar of events leading to the conversation of 4 June 1995 were incorrect.  From them the following emerges. 

Bayfield owns a hotel managed by Mr Kirk.  The applicant had worked at the hotel since 1987 as a bar attendant in a restaurant called the "Terrace Restaurant".  At the time the applicant commenced employment, Bayfield did not own the hotel.  It purchased it in 1991.  The applicant worked on 5 days a week, namely Monday, Tuesday, Thursday, Friday and Saturday, on what was described as the lunch shift.  Her hours of duty were 11:30am to 4:00pm, though my attention was drawn to material that indicated that her pattern of work was not as regular as suggested by the Judicial Registrar in her reasons for judgment.  While is was asserted on behalf of the applicant that she was not employed as a casual, it is plain, in my opinion, that she was, at least for the purposes of the Hotels, Resorts and Hospitality Industry Award 1995 which was the applicable award.  She was paid as a casual and there is no evidence of substance that suggested she was not a casual.

In 1995 changes were effected to the way the restaurant was managed, which lead to the conversation between Mr Kirk and the applicant on 4 June 1995.  The following appears in the Judicial Registrar's reasons for judgment:

"By May 1995 the restaurant trade was proving not to be viable.  In that month the persons controlling [Bayfield] decided to make an effort to turn the situation around. 

How this was done, was to contract with a management company to come in and conduct the restaurant.  Ms Gail Mitchell was the principal of the company and it was she who was to endeavour to make the restaurant more profitable.  Her belief was that there was the potential there so to do.

Her duties included the rostering of staff; co-ordinate with the manger of the hotel as well as the chief.

Having commenced this venture on 24 May 1995, Ms Mitchell met with management on 31 May 1995 to discuss some ideas she had to achieve their expectations for the restaurant.

At this meeting Ms Mitchell ventured that the restaurant was overstaffed and she would have preferred to be busier herself and "there was only one position really that suited what I wanted to do and that was the position occupied by the applicant."

The decision that Ms Mitchell would perform the duties of the applicant in the Terrace Restaurant led to the conversation between the applicant and Mr Kirk on Sunday, 4 June 1995.  Mr Kirk rang her and asked her that day to come to the hotel.  Mr Kirk's account of the conversation was as follows:

"Can you recall what you said to Mrs Wood? --- Yes, when Dot first sat down, she was - well, first of all I met Dorothy out the front of the hotel and we went inside in to the Terrace Bar and we sat down and she was rather concerned and she asked me again whether I was putting her off, and I said, no, no, no, it's nothing like that at all, and she referred that she'd spoken to her husband that business was slow and that because of me ringing that maybe I was getting her in to tell her I didn't have a job for her and I said, no, that's definitely not true, it's not like that at all.  I said to Dot, as you aware the trade in the restaurant has just not been happening and that I wanted her to work in the Terrace Bar for me and I said immediately I've got shifts available, they're afternoon shifts which were the Thursday afternoon, the Friday afternoon, the Saturday afternoon - they're afternoon night shifts, and Sunday.  During the conversation I did say that, you know, that there would be more shifts available because we were looking at opening the bar for longer hours and they would certainly come along.  Dot asked me if anyone else had been spoken to, I assume by me, or staff from the restaurant, and I said, no, no-one's been spoken to in the restaurant.  She had asked me if she could do night work, I explained to her that Gail was going to do her shifts in the - in the restaurant and that - for lunch, and that that shift wasn't there for her.  She asked me whether or not she could do evening shifts in the restaurant and I said, well, to my knowledge no, I said, the rostering in there is done by Gail and I don't believe that there is a shift there for you, that there is no shift.  I said to her, I said that I felt this position in the Terrace Bar would suit her because that particular bar, the customers in that bar are customers from the restaurant, they're sometimes in there before going in to the restaurant, they're sometimes in there after going in to the restaurant, or they're sometimes just there in general having a meeting or just social."

Mr Kirk then said how he and the applicant had discussed the implications of the applicant working at the Terrace Bar having regard to the fact that the applicant's sister-in-law also worked there.  The applicant then indicated that she didn't know how her husband would react to her working on weekends, in particular on Sundays, and that she would need to speak to him about the shifts.  The meeting concluded on the basis that the applicant indicated she needed time to think about it and Mr Kirk asking her to ring him back and let him know what she wanted to do.

At the time of the conversation on 4 June 1995 Mr Kirk was under instructions from Mr Bayfield, who was one of the principals of Bayfield, to "try and average her hours that she has been doing in the restaurant".  Mr Kirk accepted in cross-examination that he informed the applicant at the meeting on 4 June 1994 that there was no need for her to attend the following week though plainly, in context, this related to her returning to work on the days on which she had been rostered to work in the restaurant in the following week.

The next contact between the applicant and Mr Kirk was by phone on either Wednesday or Thursday the following week.  Which day it was is not material.  The applicant said to Mr Kirk that she had thought about the job that had been offered to her and thanked him for it but she indicated that she had to much hate inside her for the principals of Bayfield to take up the employment.  Mr Kirk responded by saying that if she changed her mind, would she please ring him as he wanted her to work at the Terrace Bar. 

It is clear that the applicant was being offered continuing employment by Bayfield though the employment differed from the work she had done for some years in two respects.  First, she would not be working in the precisely the same part of the hotel and, second, potentially, she would work different shifts on different days of the week.  In other respects the work would be substantially the same.  The similarities were described by the Judicial Registrar in the following way:

"The applicant would be performing the same work as she did in the restaurant, her hourly rate would be the same and many of the patrons using the dinning room, taking pre-dinner drinks there prior to repairing to the restaurants.  The applicant agreed the work was ostensibly the same, but without table service."

The fact that the work would be at the Terrace Bar, and not in the restaurant is, in my opinion, not a material one. The same cannot necessarily be said of the proposed changes in the shifts. At one point in the evidence the applicant indicated that the shifts that were proposed involved significant changes from the shifts she had been working. These remarks were made by reference to information given to her solicitors after the application under s 170EA had been lodged. It was then she was informed of the commencing and finishing times of the proposed shifts. In relation to this she said:

"Now, in relation to the shifts that you were offered, how did they compare with the shifts that you were working in the restaurant? --- Well, nothing.  Nothing like the shifts I work in the restaurant.  I work in the restaurant because it's a lunch shift.  That means, I start at 11 and I finish 4 maybe 5 but then I'm home with my family.  This shift is saying to me, you can start at 3 o'clock in the afternoon and then finish at 7, and also it says then you can do Friday night, Saturday night and Sunday night."

Given that the proposed change in the duties of the applicant might have brought with it changes to her pattern of working hours which, in turn, might materially and adversely have affected her home life, a real issue could arise about whether the act of the employer in unilaterally proposing change constituted conduct which might inevitably lead to the applicant declining alternative employment.  Thus it might be a termination of employment at the initiative of the employer of the type considered in Mohazab v Dick Smith Electronics No.2 (1995) 62 IR 200; see also the recent helpful discussion of the relevant cases in Jackson v Elmerside Pty Ltd (unreported, Industrial Relations Court of Australia, 3 February 1997, Farrell JR). 

However it is to be recalled that in Mr Kirk's account of the conversation he had with the applicant, the applicant had inquired about the availability of evening shifts in the restaurant.  Thus, at that time, the prospect of the applicant working evening shifts did not appear a matter of real concern.  Rather, her concern related to working somewhere other than in the restaurant.  Indeed when asked about what she had been told on Sunday 4 June 1995 about available shifts, the applicant made clear that her concern in relation to the shifts proposed was that there was not enough work available given that her sister-in-law already worked at the Terrace Bar.  More significantly, on Mr Kirk's account of what was said in the conversation the following Wednesday or Thursday, the applicant did not indicate that her refusal to take up the work being offered to her was because of the change in the shifts and the impact it would have on her family life. 

It is true that the applicant indicted at the meeting on 4 June 1995 that she would have to speak to her husband about working at weekends and particularly on Sunday.  To that extent she was indicating the proposed shifts might not be acceptable.  However the work the applicant was being offered was not being offered on an all or nothing basis.  Mr Kirk was plainly trying to give effect to his instruction from Mr Bayfield and, in my opinion, would have appeared quite accommodating of the concerns of the applicant.  It was not being suggested she would be obliged to work on Sunday.  The applicant's reason for refusing to take up the offer of other employment appears to have been an entirely personal and, in some respects, an idiosyncratic one.  For example, in her evidence she said in relation to the conversation with Mr Kirk on the Sunday 4 June 1995:

"So again he is still telling you he has work for you and this upset you? --- Well, I had a job.  I had a good job.  I liked my job.  Now he wants me in another bar where I get to talk to people and they're asking me "Dot, why aren't you in the restaurant?".  I don't want to go down there and have to explain myself to people and have everybody talking."

In my opinion, there was no termination of the applicant's employment at the initiative of Bayfield.  While plainly Bayfield was proposing a change to the work the applicant did, in that it was proposing a change in the venue at which the applicant worked and the shifts she would work, she had not, by those changes, been placed in a position where she had no effective or real choice but to resign:  see Mohazab (supra) at 206. Her decision to refuse to take up the work offered to her flowed from the highly subjective sense of disappointment and hurt flowing from the proposed changes. That is, in my opinion, insufficient in itself to sustain a conclusion that the implementation of the changes decided upon by Bayfield resulted in the termination of the applicant's employment at its initiative. In this respect, I agree with the conclusion of the Judicial Registrar. An order has already been made dismissing the application under s 170EA. Accordingly the appropriate order in these proceedings is to dismiss the application for review. I so order.

I certify that the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

Associate:

Alexandra George

Dated:   13 March 1997

APPEARANCES

Solicitor for the Applicant:              Mr G. Harris of Willis   & Bowring

Counsel for the Respondent:               Ms E. Brus

Solicitor for the Respondent:             Coleman & Greig

Dates of Hearing:  3 March 1997        

Date of Judgment:  13 March 1997