Khoury, Julie Marie v Elite Real Estate Pty Ltd [1998] FCA 1690

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI2324 of 1996

BETWEEN: JULIE MARIE KHOURY

Applicant

AND: ELITE REAL ESTATE PTY LIMITED

Respondent

JUDGE: WILCOX J

DATE: 17 DECEMBER 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT WILCOX J: This is an application for review of a decision of a Judicial Registrar upholding a claim of unlawful termination of employment and awarding a sum of $7,750 in compensation. Some interest has accrued on that award. The amount paid into Court by the respondent, pursuant to an order made by me, was apparently $8,130. The employer, Elite Real Estate Pty Limited trading as Town and Country Real Estate, contends that the employee, Julie Marie Khoury, terminated her own employment when she took exception to a review of her work performance after the first week of her employment, swore at Elie Kaltoum, the director of the employer company who managed the company's business, demanded payment of wages and left. By contrast Ms Khoury contends she was dismissed. The Judicial Registrar heard evidence, not only from the two principal witnesses, but also from other people employed in the business. I have read the Judicial Registrar's reasons, for the purpose of acquainting myself with the nature of the case. The reasons, of course, contain references to all the evidence. Aspects of the evidence referred to by the Judicial Registrar provide support for each version of the facts. When the matter came on today, it appeared neither party had a transcript of the evidence taken before the Judicial Registrar, the reason being its cost. It also appeared that only the two principal witnesses were in attendance. Ultimately the case proceeded on the basis of Ms Khoury giving evidence and being cross-examined, and then Mr Kaltoum giving evidence and being cross-examined, relatively briefly, by Ms Khoury, who appeared on her own behalf. At the end of this evidence I inquired whether either party sought an adjournment so as to call other witnesses. Neither party wished to take that course. Each party is content for me to decide the case on the basis of the evidence given today. I will do this, disregarding the references to evidence that are contained in the Judicial Registrar's reasons. There are numerous differences between the accounts of the facts given by Ms Khoury on the one hand and Mr Kaltoum on another. Some of these differences are of critical importance; many do not matter. Some of the differences are perhaps attributable to faulty recollection, some perhaps to discrepancies in perception of events at the time they occurred. However, I agree with Mr Skiller, counsel for the employer, that, in respect of some matters somebody is telling deliberate lies. Mr Skiller, of course, suggested the incorrect evidence was given by Ms Khoury, rather than Mr Kaltoum. Ms Khoury put to me she has been truthful and honest throughout. Both witnesses gave their evidence in a coherent and moderate manner. However, I was particularly impressed with Ms Khoury's demeanour. It seemed to me she displayed an unusual measure of sincerity and honesty in the way she gave her evidence. That does not mean her evidence is necessarily correct in every detail; even honest witnesses sometimes make mistakes. However, I take my impression of honesty into account when considering the likelihood that the events of Tuesday, 8 October 1997, the date of her leaving the employment, were as stated by herself on the one hand or Mr Kaltoum on the other. In relation to the critical events of that day, there is little room for faulty recollection or different perceptions; at least one of the parties must be telling deliberate lies. Notwithstanding this impression, it is desirable for me to consider the probabilities, and not put too much reliance on my assessment of the demeanour of the witnesses; one can be misled by demeanour. There are two aspects of the case which seem to me to tip the probabilities in favour of the account of the critical issues given by Ms Khoury. The first matter relates to the nature of her duties. According to Ms Khoury, she was employed by Richardson & Wrench at Parramatta as a secretary/receptionist at the time she accepted employment with Elite Real Estate. Her evidence was that she had been working for Richardson & Wrench for a period of something over two months. She had been employed on the basis that she was subject to a three month probationary period but she was getting near the end of that period and felt her employment at Richardson & Wrench was secure. There is nothing to suggest otherwise. However, for a long time Ms Khoury had aspired to be more actively involved in real estate, as a property officer. At an earlier time, apparently over a period of about 18 months, she had been employed three days a week by L.J. Hooker at Parramatta. She left that job because she wanted full time employment in the real estate industry. She then had temporary jobs with various Parramatta real estate companies. It seems to be common ground, between Ms Khoury and Mr Kaltoum, that Ms Khoury was very keen to get on in the real estate world. Apparently she was doing a real estate course at TAFE and she wanted to be more involved than as a secretary/receptionist. There is some conflict in the evidence as to how it came about that Ms Khoury was offered the job at Elite Real Estate. The issue is whether there was an approach by Ms Khoury's father to Mr Kaltoum or whether the approach was the other way round. This does not matter; it is common ground that Mr Kaltoum interviewed Ms Khoury late in 1995. Ms Khoury expressed interest in working for Elite Real Estate. Mr Kaltoum indicated some interest in having her, but no job was then available. I mention this history because it indicates a long standing ambition by Ms Khoury to work actively as a property officer and an interest in working for Elite Real Estate. Having regard to those facts, it is readily understandable that Ms Khoury would have been prepared to give up her employment with Richardson & Wrench and go to Elite Real Estate if she had been offered a job as a property officer. Her evidence is that this is what she was offered. She said she was offered a higher wage with Elite Real Estate than at Richardson & Wrench and there was discussion about a car and a mobile phone. She already owned a car, although it was temporarily out of service, but she says Mr Kaltoum offered her a petrol allowance because she would need a car for her duties. She also says he told her he would supply a mobile phone, although in fact this was not done during the time she worked for Elite Real Estate. According to Mr Kaltoum, the job he offered Ms Khoury was as a secretary/receptionist to replace Nicole Paag, who was about to leave his employment. He said in his evidence-in-chief that he told Ms Khoury this would be a "step up" for her. It was not clear to me how it would be "a step up" for Ms Khoury, if she was doing the same work for Elite Real Estate as she had done for Richardson and Wrench. When I asked him to explain, Mr Kaltoum said that, if she had done well, then at the end of about three months, he and Ms Khoury would have sat down together and discussed whether she would be employed as a property officer. He agreed there was discussion about her having a car and a mobile phone, although he said it was her duty to provide the mobile phone. I find this all a little strange. If she was to be a secretary/receptionist, it is not clear to me why there would be talk of a car, still less a mobile phone. It is even more difficult to understand that anybody would regard this as "a step up" for her. She had already had ample experience as a secretary/receptionist in a real estate office; the real "step up" was to become a property officer dealing directly with clients, taking them to see properties, consummating agreements and so on. The circumstances surrounding Ms Khoury's going into the employment of Elite Real Estate strongly point to the fact that this was a job where she would be doing something more satisfying, something closer to her ultimate ambitions, namely, being a property officer. That is why there was a reference to the car and the mobile phone. I add to this the circumstance that there was another new employee, Nicole Kazangi, who was to act as secretary/receptionist. Mr Kaltoum said in evidence that both Nicole Kazangi and Ms Khoury would act as secretary/receptionists in place of Nicole Paag, who had apparently undertaken that duty alone. They would share one desk in doing this. This also is strange. If one person had been able to undertake the duties to date, it would seem a waste of resources for Mr Kaltoum to employ two people to do the same work. When I add these matters together, I conclude, as a matter of probability, that the truth of the matter is that Ms Khoury was employed to act as a property officer, not as a secretary/receptionist. A further fact supporting that view is that, during the few days Ms Khoury worked for Elite Real Estate, she in fact did work consistent with being a property officer. On one occasion Mr Kaltoum took Ms Khoury to inspect a new villa development which his agency was to manage. His explanation of this is that, as a secretary/receptionist, it would help her if she had seen the development; she could then give a description of it to anybody who rang and inquired. Ms Khoury's comment on this in evidence-in-reply was that this would be the work of a property officer, rather than a secretary/receptionist. That seems to me to be correct. However, no doubt, it is helpful, in a small office, if everybody is familiar with at least the major developments being handled by the office. So this factor is not, itself, a reason for rejecting Mr Kaltoum's characterisation of Ms Khoury's role. However, it is consistent with Ms Khoury's evidence. I add to that Ms Khoury's evidence that she took "clients" to properties. I take it that, by the word "client", she meant prospective tenants. Ms Khoury gave the details. She said that she took two sets of clients to a property in Station Street, Wentworthville. She also took clients to a development at Harris Park and, in fact, ended up leasing the property to these people. According to Mr Kaltoum, this was not any part of her work and she should not have done that work. However, it seems she did do the work and this occupied a significant portion of the time she was employed in the office. Once again, the matter is not decisive but it tends to suggest her role was that of property officer. There is an issue between the parties as to Ms Khoury's absence from work during Friday, 4 October. She had started work on Tuesday, 1 October and carried out the duties I have described. She was also introduced to the office computer system. This is consistent with either version of her role. On the Friday, she had a medical appointment at Westmead, she says at 2.00pm. According to Ms Khoury, she mentioned this to Mr Kaltoum on the morning when she started - that is, the Tuesday morning - and he indicated he had no objection to her keeping the appointment. She said she mentioned the matter again on the Friday. The appointment was for 2.00pm and she envisaged that, with some waiting time and travelling back, she would be unlikely to get back much before the normal knock-off time of 5.00pm. She says Mr Kaltoum indicated he had no objection to her finishing for the day when she left for the appointment. According to Mr Kaltoum, his understanding was that the appointment was at lunch time; Ms Khoury would merely extend her normal break from one hour to two hours. In fact Ms Khoury left the office at about 1.30pm. She took some keys to another Parramatta real estate agent, then travelled to Westmead for her medical appointment. She did not return to the office that day. It is difficult to point to any factor which suggests one version of this matter is more likely than the other. There might simply have been a misunderstanding between Ms Khoury and Mr Kaltoum. I mention the matter, but I do not think it ought to play any part in my determination of the critical issue: what happened on the Tuesday morning. In respect of the Tuesday morning, once again there is some difference in the detail. Ms Khoury said that she got in at about 9 o'clock, or perhaps a little earlier. and had commenced work before Mr Kaltoum came in a little bit after 9 o'clock. Mr Kaltoum has it the other way around. He has Ms Khoury coming in late. This does not matter. It is common ground that, immediately the two of them were together in the office, Mr Kaltoum called Ms Khoury into his office. According to Ms Khoury, Mr Kaltoum informed her he had some bad news for her, his accountant had told him that he could not afford to keep her. She says she was upset by this. In evidence, she used the word "stunned". She pointed out to Mr Kaltoum that she had given up her employment at Richardson & Wrench to come to work for him and asked how he could do this to her. According to Ms Khoury, Mr Kaltoum simply said he could not afford to pay her. He offered to have her stay in the office for work experience, presumably without pay. She became very angry and it is common ground that during this conversation she swore at him. He told her to get out and eventually gave her a cheque for $200. She left with the $200. That was the only payment she ever received for her work. According to Mr Kaltoum, he called Ms Khoury into the office with the intention of gently informing her that her work was unsatisfactory. It is not clear what matters he intended to mention to her. He did not claim in evidence that he had proposed to raise the matter of her absence on Friday. [Monday had been a public holiday.] His account in his evidence was this: he asked Ms Khoury to sit down and said to her, "I'm not happy with your performance". He then described the way she was sitting and said she was looking at him angrily. According to Mr Kaltoum, Ms Khoury started screaming and swearing. She called him a "fucking wanker". He then asked her to get out and paid her the $200. On this version of the matter, it is submitted, I think with some justification, that Ms Khoury was not terminated by the employer but, in effect, resigned in a tantrum. As Mr Skiller submits, there is a huge difference between the two versions of the Tuesday incident. I have to ask myself what is the probability that the actors in that drama would have behaved in the manner they each claim. If I accept Mr Kaltoum's account, Ms Khoury exploded, in a most unacceptable way, simply because he indicated to her he needed to discuss her work performance. This is a person who had wanted to work for Elite Real Estate for 12 months or more. This is a person who was anxious to get on in real estate and had given up another job because of the prospect of becoming a property officer at Elite Real Estate. Yet, when there is a mild indication of dissatisfaction with her work performance, she bursts into a string of obscenities and totally destroys the relationship. Not many people would behave that way, but I accept some people are extremely volatile and unable to take even the mildest criticism. It is difficult to say much on the strength only of seeing a person in court during a few hours, but I doubt Ms Khoury is such a person. She seems a composed and unaggressive young woman, although not unassertive. I have extreme difficulty in envisaging her reacting in the way I have described above. On the other hand, she was undoubtedly very angry that day. Why would she have reacted in an angry way? One possibility is she felt she had been very badly treated by Mr Kaltoum. On her version of the facts, she had been. She had left another job, to the knowledge of Mr Kaltoum, to accept employment with him; only to be told a few days later that he could not afford to keep her, that he had been so advised by his accountant. I think anybody put in that position would be very angry. The fact that Ms Khoury got angry is a strong indicator to me that events were as she says, not as Mr Kaltoum says. When I add my view that the nature of the duties was as Ms Khoury describes, with the result that I have to say Mr Kaltoum has misled the Court in that respect, I think the probabilities point strongly in favour of the account of the matter given by Ms Khoury. I reject the submission that Ms Khoury terminated her employment by resignation. I think the truth of the matter is that the employment was terminated by the employer. If I accept Ms Khoury's version as being more probably correct, as I do, it follows the employer has not demonstrated the termination was for a valid reason. On Ms Khoury's account, the only asserted reason for termination was that Mr Kaltoum had been told by his accountant he could not afford to take her on. The truth of that assertion has not been demonstrated. I come to the matter of compensation. As I have indicated, the Judicial Registrar allowed $7,750. He took 25 weeks because this was the time Ms Khoury was out of work following her termination. He took a figure of $250 per week as a gross figure, there being some vagueness in the evidence about the correct figure. This seems to be on the low side of the possible range. Mr Skiller put to me that, if I find against his client, I should allow a lesser sum. He suggested this by way of some sort of a compromise, if I was not clear about the circumstances of termination. I do not think that is a valid approach. I have to make up my mind, on the probabilities, as to whether the termination was unlawful. If I conclude it was, I ought to award proper compensation, not compromise that amount. I have difficulty in seeing that the figure allowed by the Judicial Registrar was excessive. It reflects an appropriate weekly rate and takes account of the fact that it took 25 weeks for Ms Khoury to obtain other employment. There seems to be no doubt that she was unemployed until 3 April 1997. She gave evidence, which is not challenged, that she tried for many jobs during that time but was unsuccessful. She explained this by saying she tried for jobs in the real estate industry in Parramatta but people knew she had been at Elite Real Estate and asked what had happened there. She had to tell them what had happened and felt bound to include in her account that she was taking legal action. Perhaps not surprisingly, she found she was then not offered a job. She eventually got a job working for a cake manufacturer. She has now given up any thought of real estate work and is employed in her parents' bakery business. I do not see any valid reason for awarding a lower amount of compensation than the figure assessed by the Judicial Registrar. Some allowance must be made for interest. However, to avoid complexity, I will simply order the amount of money in Court be paid out by way of compensation. This somewhat under allows for interest but the amount is small. There needs to be an adjustment for taxation; tax is payable on compensation awarded under the Industrial Relations Act. The usual course is for a ruling to be obtained from the Australian Taxation Office as to the amount of the tax and for that amount to be paid directly to the Taxation Office and the balance paid to the applicant. That course ought to be taken in the present case. In order to avoid any further adjustment of interest, I propose the amount paid into Court be the total amount of compensation including interest to date. I affirm the decision of the Judicial Registrar that the employment of the applicant, Julie Marie Khoury, was unlawfully terminated by the respondent, Elite Real Estate Pty Limited. I assess compensation, including interest to date, at $8130. I direct that the applicant cause to be sent to the Registrar a letter from the Australian Taxation Office stating the appropriate taxation deduction to be made from the said sum of $8,130 and that, within 14 days thereafter, the amount shown in that letter be paid by the Registrar to the Australian Taxation Office and the balance be paid to the applicant, Julie Marie Khoury. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox