Taylor v Bulkelly and Hanley trading as Natural Image Hair Beauty and Photographic Studio [1995] IRCA 107

CATCHWORDS Termination of employment- meaning of termination in legislation- principles for determination of compensation- Federal Police procedures- reference of papers to Officer in Charge Federal Police Industrial Relations Act, 1988 Secs 170 EA 170 EE. Termination of Employment Convention Part 1 Article 3. AI 94/0156 TAYLOR V. BULKELLY AND HANLEY trading as NATURAL IMAGE HAIR BEAUTY AND PHOTOGRAPHIC STUDIO LINKENBAGH J.R. 8 MARCH 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA AT CANBERRA NO. AI 94/0156 BETWEEN SHERYN TAYLOR Applicant AND CYNTHIA MARGARET BULKELLY and KAREN HANLEY trading as NATURAL IMAGE HAIR BEAUTY AND PHOTOGRAPHIC STUDIO REASONS FOR JUDGMENT EDITED FROM THE TRANSCRIPT THE COURT: LINKENBAGH J.R. DATE OF JUDGMENT: 8 MARCH 1995 PLACE: CANBERRA This is an application under section 170EA of the Industrial Relations Act 1988, in which the applicant claims that her employment with the respondent was terminated in circumstances which give rise to a right in her to have a remedy, as provided for in the legislation. The provisions of the Act relating to what is commonly known as unfair dismissal, were passed by the Commonwealth Parliament as a result of the support of this nation for the Convention concerning Termination of Employment at the initiative of the employer. It is essential to an action under section 170EA, that the termination be within the meaning of article 3 of the Convention, that is, termination of employment at the initiative of the employer. This case squarely raises a factual issue as to which party terminated the employment. It is useful to look at the earliest documents produced by the parties, those that are closest in time to the events. The first of those is a document which is exhibit B, entitled Advice of Termination of Contract of Training. The applicant was employed as a first year Apprentice Hairdresser pursuant to a Contract of Training - Trade made between the applicant and the respondent on 11 April 1984. That contract was in the usual form of apprenticeship contracts in the Australian Capital Territory and the applicant's employment pursuant to that contract commenced on 11 April 1994. The contract provided for a probation period of three months which expired on 11 July 1994 and the last day that the applicant worked for the respondent was 22 July 1994. At some time after 22 July, the parties completed exhibit B. The applicant's words written on that document are, "I was informed that my services were no longer required. The environment in which I worked was not satisfactory." The applicant says that when she signed that there were no other words on the document apart from her own particulars and the particulars of the employer. The document bears an endorsement under the heading, which reads "After discussion with Sheryn about her poor attitude, she informed she wished to resign" and there is then the signature of Miss Bulkelly, one of the respondents. The next document produced by the parties, is an affidavit of the applicant, sworn on 8 August 1994, in support of her application and filed in these proceedings. In that affidavit at paragraph 2F the applicant says: The reasons given by the respondent for dismissing the employee were: (1) "This is my baby, you do not fit in"; (2) "I am not going to have a person saying no to me." The respondent swore an affidavit on 28 September in which she explicitly states that she does not dispute the information set out in paragraph 2F of the applicant's affidavit of 8 August which is quoted above. The respondent goes on to say in paragraph 4: The reasons for the cessation of the applicant's employment are: That the respondent had reason to believe that work equipment had been unlawfully removed from the workplace by the applicant. Further that the contract of training between the applicant and the respondent had been terminated by mutual agreement on 22 July 1994.