Sandy Helen Milham and Marianne Duncan [1995] IRCA 22

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY NO. ACT 1150 OF 1994 BETWEEN: SANDY HELEN MILHAM Applicant AND: MARIANNE DUNCAN Respondent

REASONS FOR JUDGMENT BOULTON JR The applicant was employed by the respondent as a senior hairdresser under the terms of the Hairdressers and Beauticians Award 1985 (ACT). She commenced employment on 2 December 1993 in the respondent's salon at Phillip, and her employment was terminated on 19 July 1994. At trial the applicant was aged 51 and had been a hairdresser for about 20 years. The respondent was aged 48 and had spent just about all her working life in hairdressing. It was common ground that during the course of the applicant's employment with the respondent there had been a number of incidents at the workplace which gave rise to the respondent's having to reprimand the applicant. There was no contest about the applicant's competence as a hairdresser. I accept that the respondent had made it plain to the applicant at the beginning of her employment that there were to be no "scenes" in front of customers of the respondent's business. If staff required admonishing by the applicant, that was to be done at the back of the premises, out of the hearing of customers. I accept also that the applicant had been warned that displays of temper on her part in front of customers might cost her her job. Early in her employment the applicant had become upset in the presence of customers when the respondent relayed to one customer, in the applicant's hearing, the way in which the applicant had met her husband. The respondent spoke to the applicant later about her reaction to this incident, and extracted a promise from the applicant that she would not lose her temper again in front of customers. I conclude that the respondent was not actuated by any mischief in the telling of this story. She was apparently unaware that the applicant was likely to be sensitive about this matter. In late April 1994 a customer, Mrs Lis, was turned away by the applicant when she was apparently early for an appointment. Mrs Lis was upset by the applicant's conduct towards her on this occasion. The respondent spoke to the applicant about this incident. At about the end of June 1994, the respondent opened another salon, in the Woden hospital. The applicant went to work there. The entry to this salon was quite close to the hospital reception area, and frequent passersby could be expected. I find that shortly before 19 July 1994 the applicant had spoken to another staff member, criticising the professionalism of one of the other staff, an Anne-Louise Fleming. Ms Fleming came to hear of this, and taxed the applicant about it the following day in the salon. While the applicant admitted to having made the criticism, she became very angry, raised her voice and said to Ms Fleming "go, because you won't be coming back", pointing her finger in Ms Fleming's face. Ms Fleming considered resigning because of the applicant's conduct towards her. She left the premises soon after. Another employee, a Ms Starkovski saw Ms Fleming later that morning at the Phillip salon, very upset and crying. That same day the respondent learnt of the fracas between the applicant and Ms Fleming. She instructed Ms Starkovski to make up the applicant's pay, including pay for an extra day, and then met the applicant outside the premises at Woden. The respondent thereupon terminated the applicant's employment, accusing her of "gross misconduct" on account of the fracas. At trial the respondent's representative conceded that the applicant was not given the required compensation instead of notice. Within a few days the applicant wrote to the respondent requesting one week's salary in lieu of notice, and the reason for her termination in writing. The respondent replied, stating in effect that she had been dismissed because of her misconduct. At about the same time but probably earlier than the applicant's receipt of the respondent's reply, the applicant received further moneys from the respondent, being apparently holiday pay owing to her. I had an extended opportunity to assess the applicant, while she conducted her own case and in giving evidence. She is clearly not an unintelligent person. However, without being unkind to her, she has a somewhat quirky personality. I gained the impression that she did not find it easy taking direction from anyone in her line of work. I conclude that if not for the incident of 19 July 1994, the applicant and the respondent were destined to part company in the not too distant future. I find that the respondent breached para. 170DB(2)(a) of the Industrial Relations Act 1988. The further question is whether the termination of the applicant was in breach of any other section of the Act. The applicant complains that the respondent did not give her an opportunity to defend herself in respect of the 19 July 1994 fracas. There is substance in this complaint as it seems to me that the respondent had made up her mind about the merits having heard only the version of Ms Fleming. I have already referred to the fact that the applicant's final pay had been made up before the respondent met the applicant outside the premises at Woden, and terminated her employment. I consider that the applicant was not accorded procedural fairness in this respect. However, I propose to limit compensation for this breach to reflect the view already expressed as to the likelihood of the applicant's employment with the respondent having continued in any event. The applicant did not seek reinstatement. I consider this a proper course to take in the circumstances. I assess damages for the contravention of para. 170DB(1)(a) of the Act in the sum of $279.04, being one week's pay less the extra day paid to the applicant in her final pay.