Janis Margaret Mitchell and Gagadju Association Inc and Eldon Pty Ltd [1995] IRCA 72

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NORTHERN TERRITORY REGISTRY NO. DI132 OF 1994 BETWEEN: JANIS MARGARET MITCHELL Applicant AND: GAGADJU ASSOCIATION INC. First Respondent AND: ELDON PTY. LTD. Second Respondent REASONS FOR JUDGMENT BOULTON J.R. At all material times the applicant was employed by the first respondent as manager of its Border Store about 35 kilometres from Jabiru in the Northern Territory. Prior to taking over as manager she -2- had worked at the store as a shop assistant. As at June 1994 the applicant had worked, in all, about 3 years at the store. By Solicitors' letter dated 6 June 1994 (ex. A6) the applicant was advised that her employment was immediately terminated on the grounds of grossly unprofessional misconduct, this referring to an incident which had taken place at the store the day before. Late on the fifth day of trial, at a time soon after damaging admissions had been made in evidence by the respondents' principal witness, Counsel for the respondents conceded that the applicant had been denied procedural fairness associated with the termination of her employment. The concession did not extend to acknowledging that there was no valid reason, within the meaning of ss. 170DE(1) of the Industrial Relations Act 1988, for the applicant's termination. No submissions to the contrary were, however, made to me by Counsel for the respondents. He confined his submissions to the question of compensation (the parties agreeing that reinstatement of the applicant was impracticable). In these circumstances, I consider it unnecessary to traverse the facts except to say that I reject the evidence led which was designed to prove -3- that the applicant had been guilty of "grossly unprofessional misconduct". There was no valid reason for the termination. Her termination was unlawful, on the grounds of both substantive and procedural unfairness. The applicant was not employed under award conditions. I find that the value to her of her remuneration package was of the order of $800.00 per week. More than 6 months has elapsed since her termination. Following the termination, the applicant has had other employment as a cook in a high school canteen. Up to 6 December 1994 her earnings there have been about $6,035.00. The applicant also received termination pay from the first respondent of $1,040.00. By regard simply to the remuneration the applicant would have been likely to have received, if the first respondent had not terminated her employment, compensation is a sum of about $14,700.00. Counsel for the applicant urged upon me that I was not obliged, in assessing compensation, to have regard solely to "lost" remuneration. He submitted that I had power to include a component or components designed to compensate the applicant for what he described as the damage to the applicant in the workplace, having left under a cloud, and -4- the likely effect of this on her future earning capacity, the acute distress caused to her by the first respondent's treatment of her, and removal costs associated with her leaving of the store. Counsel for the respondents denied such power. If I have such power, I consider it entirely appropriate that I exercise it in this case. That the applicant has suffered distress of the type referred to by her Counsel cannot be doubted. She has also been put through a lengthy (for this jurisdiction) trial with her obvious concern being to "clear" her name, especially given her expressed interest in returning to the type of work she was doing before her termination. I hold that I am not constrained by the wording of ss. 170EE(3) of the Act to have regard solely to "lost" remuneration in working out the amount of compensation for the purposes of ss. 170EE(2). I am fortified in reaching this conclusion by the approach of Millane J.R. in Kiel v Curwen-Walker VI 687/94 27 October 1994 and Jones v Armas Nominees Pty. Ltd. VI 1245/94 22 December 1994, of Linkenbagh J.R. in Smahel v McGee NI 150/94 24 October 1994 and Polley v Beasam Pty. Ltd. AI 131/94 13 December 1994, and Staindl J.R. in Milner v Amtron Australia Pty. Limited VI 1433/94 20 December 1994. -5- On the state of the evidence, a modest sum only is called for. The amount of compensation I consider appropriate is the sum of $16,500.00. In arriving at this sum, I take into account my assessment of the applicant as a resilient person whose intelligence will allow her to put the termination behind her and get on with her life. The orders that I make are: 1. The application be allowed. 2. The first respondent to pay to the applicant the sum of $16,500.00 within 14 days of the date of these orders. I certify that this and the preceding FOUR (4) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton. ........................................................... Judicial Registrar DATED: 7 March 1995 -6- Counsel for the applicant: Mr. Kilvington Solicitors for the applicant: Waters James McCormack Counsel for the respondents: Mr. Tippett Solicitors for the respondents: Mildrens Dates of hearing: 29, 30 November 1994 13, 14 & 15 February 1995 Date of judgment: 7 March 1995