CATCHWORDS INDUSTRIAL LAW - Unlawful termination - Temporary absence because of illness - Chronic fatigue syndrome - Termination of employment - Abandonment of employment - Breach of contract - Application dismissed. Industrial Relations Act 1988, S170DE, S170DF, S170EA McGarry and Saperdeen The Law of Employment 3rd edition at 146. Woods v W.M. Car Services (Peterborough) Limited [1982] ICR 693 and 698, 649, 699-700 and 701-702. Thomas Marshall Exports Limited v Geenall [1979] Chancery 227. Evening Standard Company Limited v Henderson [1987] ICR 588. JULIANA JONES V MEADOW CREEK NURSERY No. VI-1512/94 Before:Ryan JR Place: Wangaratta Date: 30 March 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-1512/94 B E T W E E N: JULIANA JONES Applicant AND: MEADOW CREEK NURSERY Respondent RYAN JR MINUTES OF ORDER 30 MARCH 1995 THE COURT ORDERS THAT: The application be 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 VICTORIA DISTRICT REGISTRY Matter No VI-1512/94 B E T W E E N: JULIANA JONES Applicant AND: MEADOW CREEK NURSERY Respondent COURT: RYAN JR PLACE: WANGARATTA DATE: 30 MARCH 1995 JUDGMENT EX TEMPORE BACKGROUND The applicant worked for the respondent, Van Ingen Holdings Pty Limited, for 13 months from July 93 to late August 94. Although a workplace agreement was under discussion, the employment was under the State Nurserymen's Award when the employment relationship came to an end. The applicant was a nursery worker. She began work in a full time capacity working five days a week during what is the busy season in terms of planting and propagation. By the end of November 93 on her own evidence the applicant was working very much in a part time capacity. To use her own words, she was working sometimes five days a fortnight, sometimes three days a fortnight, sometimes one day a week and in some weeks not at all. In February 1994 she had three weeks holiday and by April, she says, she was again working close to full time, that is five days a week. The work being seasonal dropped down to part time work in May and June 1994, which the applicant described as fairly quiet. In fact the respondent's records indicate the applicant was on leave from Monday 16 May to Friday 3 June. However, she confirms that she was working five days a week for several weeks prior to the week commencing Monday, 22 August 1994. MONDAY 22 AUGUST 1994 The respondent claims that the applicant was not at work on Monday 22 August. The applicant claims to be unsure as to whether she was at work on that day. In cross-examination at first she indicated she could not remember, then she took the position that she was at work, and that as far as she knew she was at work and finally took the position that she could not recall, but thinks she was there. I found the applicant's responses curious in terms of credibility, given the focus on the events of Tuesday 23 August, Wednesday 24 August, Friday 26 August, Saturday 27 August, Monday 29 August, Tuesday 30 August and Thursday 1 September, and given in particular the applicant's evidence that she had been very tired for some time, and falling asleep at 9.30 am in the nursery and had gone into work on Tuesday 23 August and at about 2 pm that day attended a doctor. I find it hard to believe that the applicant cannot recall whether she was at work on Monday 22 August. I accept the evidence of the respondent that she was not at work on that day, and I think it is likely that the applicant knows and recalls that this was the situation. While her absence from work on 22 August and her alleged lack of recall in respect to that absence is of no real relevance in determining the disputed issues of fact, it is of some significance in terms of credibility. TUESDAY 23 AUGUST 1994 On 23 August the applicant worked in the morning and left at lunch time, and about 2 pm visited her doctor. The applicant obtained a certificate that she was unfit for work for that day, and on 24 August. WEDNESDAY 24 AUGUST 1994 On the morning of 24 August at about 7.25 am she rang Eric Van Ingen, a director of the respondent company and the proprietor of Meadow Creek Nursery. Her version of the telephone conversation is that she told him, Eric, that the doctor had given her a week off work, and that she had chronic fatigue syndrome. She says that Eric did not give her a chance to explain that the doctor had only issued a certificate for 23 and 24 August, but was prepared to issue a certificate for 25 and 26 August also. She claims that Eric Van Ingen described her claim or condition or the apparent medical description of it as "bull shit", and that he said that he would have to get someone to replace her. The applicant used the words: "I am the production run", and she conceded that Eric Van Ingen would need to put someone in the position. She expressed the view that that could be done by internal reallocation within the nursery work force, perhaps by someone who was patching (i.e. evening out seedlings and culling where planted too close and replanting in gaps where seedlings die, or seeds fail to germinate). The applicant said she felt like she had been dismissed. I gathered that this was at least in part because Eric Van Ingen was brusque and told her he had work to do and a nursery to run, and did not have time to speak further with her. In cross-examination the applicant conceded that Eric Van Ingen never used words such as "sacked, dismissed or terminated", and that when he said "replace" it could have been an indication that he wanted someone to do her job. However, she repeated that she got off the phone, thinking he had sacked her and that she reached that conclusion because of his tone of voice and the fact that he used the word "replace". She conceded in cross-examination that at the time she was stressed and tired and that she could have made a mistake. MONDAY 29 AUGUST AND TUESDAY 30 AUGUST 1994 On Monday 29 August the applicant appears to have sought advice from the Department of Business and Employment in Wangaratta. She states that as a result of that advice she and her husband attended the Meadow Creek Nursery on Tuesday 30 August to ask for wages for the previous fortnight, holiday pay, sickness entitlement and a week's pay in lieu of notice. She says they walked up to Eric who turned his back on them and that this upset her husband, David and angry words were exchanged between Eric and David. The applicant claims that she said words to the effect that they had come to "sort out her pay", and that Eric said that she had not been sacked, but that he had "replaced" her and that the making of pay was not his responsibility, but that of his wife, Chris Van Ingen. The applicant further claims that Kerrie Tidball ran up and said that the pay could not be done that day. The applicant is somewhat vague about what happened at this stage. She says she said to her husband, David: "okay, let's go", and that Eric came running up behind her, and that she called out to David, and that Eric ran down in the direction of the office and that she and David left. The applicant denies that her husband threatened to kill Eric or in any way threatened the respondent. Her husband, David Jones, gave evidence. He, too, denies any threats were made. He concedes heated words were exchanged. He denies he pushed Eric. He says Eric pushed him. David says he and Eric were standing very close and yelling over why Juliana, the applicant, was being sacked. He states that Eric at one stage used the word "sacked", and then said that Juliana was not being sacked, just "replaced". David Jones concedes that later that day at his home a police officer, Laurie O'Connor from Whitfield, told him that a cheque could be picked up for the applicant at the respondent's place of business at noon on Thursday 1 September. THURSDAY 1 SEPTEMBER 1994 It is uncontested by either party that on Thursday 1 September the applicant and her husband attended the respondent's premises about noon, and that the applicant was given a cheque for $182.84 and a hand written note, exhibit A1, which contained calculations made by Chris Van Ingen. The calculations indicated sick leave entitlements of $136.05, holiday leave entitlements of $253.72, and $34.10 being 4 hours pay for the morning of Tuesday 23 August - a total of $423.87. A sum of $241.03 was deducted from the total, leaving the amount of the final cheque, $182.84. DEDUCTION FROM FINAL PAYMENT Mrs Van Ingen gave evidence that the $241.03 was the average of the applicant's weekly earnings calculated over a considerable period of time, possibly 12 months. The respondent made this deduction on the basis that the applicant had ended her employment without notice. The applicant's evidence confirms this rationale. She states that Eric indicated to her when handing over the cheque, or at least during discussions that ensued around that time, that he was entitled to deduct a week's pay because the applicant had left without notice. In cross-examination, the applicant stated that Eric considered this deduction his right under the award. APPLICANT CLAIMS TERMINATION The applicant alleges that the telephone conversation at about 7.25 am on 23 August constituted a termination of her employment by the employer. Her evidence is that she treated Eric's statement that he would have to replace her as a termination then and there. Her husband, David, gave evidence that tended to support the proposition that she was at that time, immediately at the conclusion of the telephone conversation on the morning of 23 August, treating the alleged advice of replacement as advice that she had been dismissed. However, it does not follow that the Court must or does accept that the applicant considered any advice of replacement, which was made in the telephone conversation, constituted a termination of employment, or that the applicant believed this to be the case. The applicant implied in some of her evidence and cross-examination and in her final submission that Eric Van Ingen dismissed her for a reason or reasons which included temporary absence from work because of illness. A termination by an employer for reasons including temporary absence from work because of illness is a breach of section 170DF(1) and consequently of section 170DE(1) of the Industrial Relations Act 1988 in that it is not a termination for a valid reason. The applicant did not express her claim in those terms. That is not surprising, she was unrepresented. However, she expressed the view that an employer cannot terminate an employee who holds a medical certificate certifying an unfitness to work. I am satisfied that the substance of her claim is that Eric Van Ingen dismissed her allegedly by telephone on 24 August because she was absent from work, and because he did not accept her claim of chronic fatigue syndrome or terminated her because of a fear of an absence of an uncertain duration. It is quite likely that Eric Van Ingen did describe her claim of chronic fatigue as bullshit, irrespective of whether or not there was a medical certificate, or in fact two medical certificates which certified unfitness to work on 23, 24, 25 and 26 August and irrespective of whether or not such certificates were based on a diagnosis if chronic fatigue syndrome. The Court notes that there is no reference to chronic fatigue syndrome in the certificates, but medical certificates of unfitness to work often give no reason. Be that as it may, no medical evidence of chronic fatigue syndrome has been produced. However, it is a quantum leap from accepting the possibility, even the likelihood, that a director of the respondent company categorised a claim of chronic fatigue as bullshit to a conclusion that the director terminated the employment for a reason or reasons which included a temporary absence from work because of illness. It is open to the Court to conclude that the director, while profoundly dissatisfied with an ongoing absence of uncertain duration for a reason of which he was openly sceptical, determined to replace the employee while she was absent from a crucial production position during one of the busiest periods in his nursery business. The speedy replacement by placement of another employee, in this case one Angela Delaney, does not of itself constitute a termination of the employee then absent. The Court must determine whether in fact the employer specifically acted to terminate the employment of the employee. If the Court finds the employer did not so act, the application for remedy under section 170EA must be dismissed. If the Court finds the employer did so act, the Court must determine whether it was lawful or unlawful. Clearly a termination in whole or in part for reason or reasons including temporary absence from work because of illness is unlawful. But was there a termination by the employer at all, let alone for an invalid reason? EVIDENCE FOR RESPONDENT This leads the Court to the evidence called by Mr Robinson, counsel for the respondent. Noel William Duckworth is a delivery van driver. He does delivery work for the respondent. He gave evidence that on a Wednesday night late in August 1994, probably 24 or 31 August, the applicant told him in the bar of Moyhu Hotel that she had been sacked because Eric Van Ingen wanted her to work five days a week and she could, or would, only work three days a week. Mr Robinson sought to pinpoint, or at least narrow down, the date of this discussion by drawing from Mr Duckworth evidence that the next day, presumably 25 August or 1 September, Mrs Silvana Micheli had a conversation with him in which she referred to a recent disturbance or "kerfuffle" at the Meadow Creek Nursery involving Juliana, the applicant, David, her husband, and Eric, the respondent director. Mrs Virginia Christine Van Ingen (Chris) is the wife of the proprietor of the Meadow Creek Nursery. She works at the nursery. Her duties include making up the pay of employees. She confirmed that she and the applicant were friends. Indeed, the general evidence of the applicant and Chris Van Ingen suggests they were reasonably close or intimate friends. Mrs Van Ingen confirmed that the applicant handed to her two medical certificates at the netball semi-finals on Saturday, 27 August. These certificates are dated 23 August and 24 August and certify that Juliana Jones, the applicant, was unfit for work on 23 August, 24 August, 25 August and 26 August. The Court notes that Mr Robinson, in his cross-examination of the applicant, asked her why she gave these certificates to Mrs Van Ingen to give to Mr Van Ingen given that she, the applicant, had sworn that on 24 August she had concluded that Eric Van Ingen had terminated her employment. This can, I suppose, be put more bluntly as why did the applicant give the respondent two medical certificates three days after the applicant swears she had been sacked? The applicant's response was that she believed she was under a legal obligation to give the certificates to her employer, but it must be said that the circumstances in which she gave the certificates to Mrs Van Ingen are not really consistent with the applicant's claim that by then she believed she had been dismissed for three days. Mrs Van Ingen gave evidence which, in general terms, supported that given by her husband. The Court will return to that evidence later. Lita Holmes, a nursery worker, gave evidence of a discussion with Mr Van Ingen quite soon after, or within a day or two of 23 August, in which he told her that the applicant would be absent for some time because of chronic fatigue, that he was concerned about the production schedule and wanted someone to undertake that work. Ms Holmes saw the applicant when she came to pick up her pay on 1 September and gave evidence of the applicant yelling or shouting, but she does not appear to have been able to discern what was said or who was involved in any discussion with the applicant at this time. Janey Bonacci gave evidence of a friendship with the applicant and of their practice of walking together at lunch time. She claims that on the day before the applicant left, or was at work for the last time, she went walking with her at lunch time. I believe the witness is mistaken in believing she walked at lunch time with the applicant on what would have been Monday, 22 August. At the very least this is unlikely given that the respondent's records indicate the applicant was absent on that day and the applicant herself states that she cannot recall whether or not she was at work on 22 August. In any event, the Court does not regard as relevant Ms Bonacci's evidence of a conversation with the applicant on the last day they went walking at lunch time, whatever that date might have been. Ms Bonacci's recall of events and conversations with the applicant is vague and imprecise but she did give evidence of a telephone conversation with the applicant, probably on 24 or 25 August in which she enquired of the applicant whether she, the applicant, had been sacked and that the applicant seemed surprised at the suggestion that she might have been sacked and advised Ms Bonacci that she had telephoned Mr Van Ingen and that he had indicated that he had had to replace her. While the Court has no reason to disbelieve Ms Bonacci's evidence of a telephone conversation with the applicant on 24 or 25 August, her recall of that conversation is of some relevance. The weight given to the evidence must be discounted to some degree because of the general imprecise and inadequate recall of events as displayed by the witness. Ms Bonacci also gave evidence of having lunch at the applicant's home with the applicant and Mrs Bonnie Harris on the day "there was bit of a fight", namely Tuesday, 30 August 1994. She states the applicant was very upset and indicated that she planned to sue Eric Van Ingen, first for unlawful termination and, if unsuccessful, by way of equal opportunity legislation. In cross-examination the witness indicated that Tina Long had told her that the applicant was sacked, or was to be sacked, and that she in turn believed Tina was advised to this effect by Kerrie Tidball. Also in cross-examination Ms Bonaci indicated that she did not recall a claim allegedly made by the applicant to her that the Equal Opportunity Board had sent the applicant to the Industrial Relations Court of Australia. The witness, both in evidence-in-chief and in cross-examination, indicated that Eric Van Ingen had referred to the applicant's claim of chronic fatigue but had never used the word sacked in respect of the applicant, but had indicated an intention to replace her. Kerrie Tidball describes herself as a nursery hand. Both Mr and Mrs Van Ingen confirmed that she exercised a supervisory role in the nursery when Mr Van Ingen was absent. She gave evidence that on the morning of Wednesday, 24 August, she went into the office. She described Mr Van Ingen as being upset and flustered. She said that he said that Juliana, the applicant was not coming in and that this was because of some form of stress. She could not recall the terminology used, but when Mr Robinson asked her whether the term used was chronic fatigue syndrome, she replied in the affirmative. She confirmed in cross-examination that Eric Van Ingen said that he would have to replace the applicant. She denied that she had heard rumours that the applicant had been sacked. She denied that she had started such rumours. She admitted that she had not wanted to give evidence because she was frightened of the applicant and of the applicant's husband. In cross-examination, she denied that on Thursday, 25 August, she told Janey Bonacci that the applicant would not be coming back and at one stage she responded that she was positive that she had not said that Juliana had been sacked. However, to earlier questions in cross-examination, she responded that: (1) I cannot remember exactly speaking to Janey Bonacci (2) I might've said I do not know where she is (3) I do not recall saying Juliana would not be coming back. Again in cross-examination, when asked whether she had told Tina Long, another nursery employee, that Juliana, the applicant, had been sacked, and when she was pressed with this question, she replied on three separate occasions: (1) Not that I can recall (2) I can't remember (3) Not that I can think of. Kerry Tidball appeared to be an apprehensive witness and she stated that she was frightened. I am inclined to the view that she may very well have told Tina Long that the applicant had been or was to be sacked. It is possible that she may have expressed a similar view to Janey Bonacci but this seems less likely. Ms Bonacci herself claims that it was Tina Long who gave her this information or view (or what one witness, Lizzie O'Brien, described as "gossip"). Bonacci seemed to be of the view that Kerrie Tidball had told Long who, in turn, told her. Mark Tidball, the brother of Kerrie Tidball, is employed at the nursery mainly in maintenance and odd jobs. On Tuesday, 30 August, he was in a shed sweeping the floor when his sister came running down to the shed shouting his name. He states his sister told him that David Jones, the applicant's husband, was punching Eric Van Ingen, and that he told his sister to ring the police. He described David and Eric as standing close together, between wheelbarrows with the applicant about five feet away. His evidence included the following: (1) David was abusing Eric (2) I saw a little bit of pushing (3) David did all the pushing (4) I do not remember what was said (5) David told Eric to tell me to fuck off (6) I stayed around (7) they abused each other for a little while (8) then Leonie Richardson told David to calm down. (9) David told her to fuck off as well (10) Juliana headed down to the shed 30 yards away (11) Juliana told David to come on (12) Juliana told Eric that it had been a pleasure working there (13) Juliana introduced herself to Angela (Angela Delaney) and said something to the effect that she, Angela, must have her (the applicant's) job (14) Juliana asked me for her radio. I told her where it was and she got it and left. In cross-examination, Mark Tidball denied that his sister told him that Eric Van Ingen had told her that he, Van Ingen, had replaced the applicant. He conceded that David Jones may have told him directly to fuck off rather than directing Eric to tell him but he seemed to lean to the possibility that the direction was to Eric. Of course, it is of no relevance in this case whether such a blunt and common exhortation was delivered to Eric for Mark or directly to Mark or to Eric and Mark and Leonie. In fact, in determining whether there was a termination of employment at the initiative of the employer or an abandonment of the employment by the employee, much of the evidence of the events of 30 August and indeed a lot of the other evidence in this case is of marginal relevance. However, the applicant was unrepresented. She made a number of assertions and allegations. In some cases she was not permitted to pursue totally irrelevant assertions and allegations. In other cases, while any relevance, even marginal relevance, was difficult to discern, leniency was extended to her. The Court suspects that counsel for the respondent called more witnesses than initially intended because of the way in which the applicant conducted her case and because of her cross-examination of respondent witnesses. Because of the way in which the case proceeded, and because of the substantial conflict of evidence between the applicant and her husband and the respondent witnesses, and because of some inconsistencies, probably inevitable, in the evidence of some of the respondent witnesses, and because the Court did not want to reserve judgment or in any way delay the resolution of a vigorously contested application, it has been necessary to go into the evidence to a degree which in other circumstances would be unnecessary. Elizabeth (Lizzy) O'Brien is a nursery worker at Meadow Creek Nursery. In August 1994 she was residing with the applicant. Her evidence included the following: 1. On the night of Tuesday 23 August Juliana said that she had chronic fatigue; 2. On the night of Wednesday 24 August Juliana said that Eric Van Ingen had said that he had to replace her; 3. Janey Bonacci had asked her (O'Brien) on Wednesday 24 August or Thursday 25 August whether Juliana had been sacked, and that she had replied: "not that I know of" and that Eric had said that Juliana was to be replaced; 4. It was just gossip what the other girls were saying, and I did not want to get involved. (The Court takes this to be a reference to claims or rumours or suggestions that the applicant had been sacked. It is also an understandable position for a young employee to take, given that she was living with the applicant and her family, but working for the respondent and with a number of employees in a fairly close and possibly volatile and busy atmosphere.) 5. On 30 August David and Eric had a bit of a push. David pushed Eric. Eric said he had just replaced Juliana. In cross-examination, Lizzy O'Brien told the applicant that she had every reason to believe the applicant was going back to work, and that the applicant had said that she had a medical certificate for two days and her doctor had indicated he would give or authorise a longer absence. The witness seemed to assume that the applicant intended to go back to work, and again in cross-examination she told the applicant that nothing had been said to her about the applicant getting sacked. The witness indicated that she could not remember a particular conversation with the applicant on Friday 26 August, or a conversation with Eric Van Ingen in which the latter is alleged to have said that the applicant had "Buckley's chance" of further employment if she presented at work on Monday 29 August. The Court adds at this stage that Mr Van Ingen, when cross-examined by the applicant, vigorously denied that such a conversation ever took place, or that he ever said that the applicant had "Buckley's chance" of further employment if she presented at work on Monday 29 August. There is no evidence other than the applicant's unsubstantiated assertion that Eric Van Ingen ever said anything like what is alleged. Lizzie O'Brien did not give any evidence which cast light on the events of Tuesday 30 August other than that she was in the hothouse doing orders, and, understandably, when she heard the commotion, came out presumably to see what was the cause of what some witnesses have called the "kerfuffle". Silvana Micheli works in the office at Meadow Creek Nursery and has done so for ten years. She stated that on either Sunday 28 August, when she was stocktaking in the office, or on Monday morning, 29 August, Eric Van Ingen told her that he was dreading Juliana turning up for work. She says she asked why this was so, and that Mr Van Ingen replied that Juliana said she had chronic fatigue syndrome, production was being lost, he did not know how long Juliana would be away and he was going to have to hand her production sheet to someone else to finish. The Court notes that Eric Van Ingen's evidence is consistent with this recollection of the conversation, except that the latter gave evidence of his concern about the recent work performance of the applicant. The applicant objected on the grounds of relevance. The Court notes that prior to the trial the respondent had not raised performance as an issue, and in determining this matter the Court has placed no weight at all on Mr Van Ingen's evidence of concern about performance. The Court also notes that the respondent does not allege an alternative defence of justified termination and relies entirely on a denial of termination by the employer. The witness Micheli gave evidence that on Tuesday 30 August she was on a delivery run which included Mt Beauty, Myrtleford and Whorouly and that she dropped the invoices into the Van Ingen residence at about 7.30 pm and that Eric Van Ingen remarked to her and to his wife, Chris Van Ingen, that he wanted them to work out Juliana's pay. She states that he repeated the direction to both of them in some detail in the office on the morning of Wednesday 31 August when he indicated that once the applicant's sick and holiday leave entitlements had been worked out they (i.e. Chris and Silvana) were to deduct or take a week off the final pay because, while he did not normally do that, he was entitled to make the deduction given that the applicant was leaving without notice and that on this occasion he wanted the deduction made. Silvana Micheli gave evidence of the applicant arriving on Thursday 1 September and that: 1. She called Eric Van Ingen from the bottom hot house 2. She asked him to sign the final payment cheque, which he did 3. Eric instructed his wife to call Juliana down to get the cheque 4. Juliana did not come down, and Eric, Chris and Silvana went up to the car. The Court assumes the vehicle was driven by David Jones. In any event there is no dispute that he was in the car and that the applicant was standing by the car. The witness also gave evidence that Eric said he was going to put someone on to do the production sheet, and that he never at any stage said that the applicant was being dismissed or sacked. The Court notes that in fact Angela Delaney had already begun to do this production sheet work, and this was confirmed by several of the witnesses. The Court also notes an inconsistency between the evidence of Silvana Micheli and Eric Van Ingen as to the signing of the cheque. The witness indicates that Mr Van Ingen signed the cheque on request when he came up to the office from the hothouse. Van Ingen himself claims that he would have followed his usual practice and only signed the cheque after he had presented and explained the details and that he therefore would have signed the cheque up at the car. There is an inconsistency here. For what it is worth, the Court believes that Mrs Micheli is likely to have the more accurate recollection, and that the cheque was probably signed in the office or at least before Van Ingen went to the car, and not at the car in the presence of the applicant. However, this is not a matter of any significance. In cross-examination the witness: 1. answered a number of technical or procedural questions on pay rates, the making up of pays, time cards and entries in the wages book; 2. denied that Kerrie Tidball said that Eric Van Ingen had sacked the applicant; 3. denied that Eric Van Ingen himself said that he had sacked the applicant; 4. identified Thursday 25 August as the day on which Angela Delaney began work ; 5. expressed the opinion that Angela Delaney began immediately on the production sheet, although Eric Van Ingen had initially planned that she begin on patching. Eric Van Ingen swore that 1. he had operated Meadow Creek Nursery in Moyhu for 20 years 2. the nursery grew seedlings and sold wholesale to other nurseries and to supermarkets and chain stores 3. there were enormous fluctuations in demand and the nursery employed from 15 to 25 staff, depending on demand. Four staff worked full time in peak periods, but many worked on a very limited part time basis or not at all in troughs. A considerable portion of Mr Van Ingen's evidence covered areas already outlined in the evidence of the other witnesses. It is not necessary to repeat that evidence. The Court produces below a summary of relevant extracts of his evidence. On Friday 19 August 1994 Juliana knocked off early in the afternoon. She did not attend work on Monday 22 August. On Tuesday 23 August she said: I have got to tell you, I have chronic fatigue syndrome. I replied: Really, I am going to lunch. I did not elaborate. She had been taking days off. She was always giving excuses. I did not know she was leaving on 23 August to see a doctor. I said: Where is Juliana? The girl said: Juliana has gone home. I was concerned she had not finished last week's production sheet. Next morning on Wednesday 24 August she telephoned me at 7.30 am. She said: How are you? I said: Who is that? She said: Juliana. I said: What is wrong? She said: I went to the doctor. The doctor diagnosed chronic fatigue syndrome. He has given me a couple of days off. I said: I'm going to have to hand the production sheet to someone else. Van Ingen stated that he was feeling slightly sorry for the applicant because he was aware of a very serious case of chronic fatigue syndrome, and if a doctor had diagnosed the applicant as having chronic fatigue syndrome it could be serious. He states that he said: I have got to go. Have a nice day. I have a production sheet I must finish before 8 am. Frankly, the Court finds it difficult to reconcile the somewhat dismissive approach Van Ingen says he took on 23 August with the claim that he was feeling slightly sorry for the applicant when she telephoned on 24 August. The applicant in her final address describes his claim of feeling sorry as gilding the lily. The Court is inclined to agree with that description of his claimed position at the time of the telephone call on 24 August. Furthermore, while the Court cannot know what was said in the telephone conversation, and while Van Ingen vehemently denies on oath that he described her claimed condition of chronic fatigue syndrome as "bull shit" he did admit that he uses that term and the Court would not be unduly surprised if he in fact did use that expression in the telephone conversation on 24 August. The Court also notes that in his affidavit and indeed in cross-examination by the applicant, Eric Van Ingen asserts not that the applicant reported a medical diagnosis of chronic fatigue syndrome by the doctor but rather that she stated she had chronic fatigue syndrome, and that the doctor had given her a few days off. The applicant made much of the fact that in evidence in chief Van Ingen said that the applicant had reported that the doctor had diagnosed chronic fatigue syndrome, and that was a conflict with his affidavit of 14 July 1994. This is correct. It is a conflict, but the Court puts no real weight on this conflict. In cross-examination, Van Ingen pointed out quite reasonably that his recollection of events as described to his solicitors and sworn in paragraph 3(a) of his affidavit of 14 September 1994 was likely to be more accurate. That is the position he reasserted in cross-examination. However, if the Court had to determine this matter simply on the assessment of the evidence of the applicant and Eric Van Ingen, it would be a very difficult position, because the Court is not particularly impressed with some aspects of the evidence of either Eric Van Ingen or Juliana Jones. FINDINGS However, the Court accepts Duckworth, Christine Van Ingen, Holmes, Bonacci, Kerrie and Mark Tidball, O'Brien and Micheli are essentially witnesses of truth. Of course, none are entirely objective. All are or were employed in whole or in part, by the respondent. To varying degrees they may wish to protect that employment, but by and large the Court found their evidence credible. The real nub of this case is a lack of evidence that the employment relationship between the applicant and the respondent ended at the initiative of the employer. The applicant is relying on her interpretation of what she says Eric Van Ingen said on the telephone at 7.25 am on 24 August and on what she described as his tone and behaviour in that telephone conversation. However, even putting the case in the most favourable light to the applicant does not establish a termination of employment at the initiative of the employer. Even if the Court assumes that Van Ingen described the applicant's reported condition of chronic fatigue syndrome as "bull shit" which the Court finds quite possible, that does not establish a termination at the initiative of the employer. Even if in the telephone conversation of 24 August Van Ingen said he was going to replace the applicant and he undeniably used that term in later conversation, that does not establish a termination at the initiative of the employer. Apart from the use of the term "replace", which does not imply termination but can in certain circumstances follow or result from termination, there is no evidence that the employer terminated the employment. Indeed, given the pressure on the business in a peak period and given that the respondent actually employed four additional staff between 23 and 26 August, namely Tina Long 23 August, Leonie Richardson and Angela Delaney 25 August, and Brian Jennings 26 August, it is inherently unlikely that a very experienced employer, who had employed hundreds of staff over 20 years, would have terminated the employment of an experienced worker. In fact, Eric Van Ingen demonstrated considerable familiarity with the State Nurserymen's Award, and took action which was entirely consistent with the applicant having abandoned the employment without notice. Repudiation of a contract of employment will exist either where there is a breach of a condition going to the essence of the contract or when one of the parties to the contract has evinced an intention through her or his conduct either expressly or by implication no longer to be bound by the contract. See McGarry and Saperdeen The Law of Employment 3rd edition at 146. Whether there is a repudiation of the contract in an individual case is not a question of law, but a question of fact. See Woods v W.M. Car Services (Peterborough) Limited [1982] ICR 693 and 698, 649, 699-700 and 701-702. Repudiation would exist where an employee leaves the job without notice or with insufficient notice. See Thomas Marshall Exports Limited v Geenall [1979] Chancery 227 and Evening Standard Company Limited v Henderson [1987] ICR 588. The Court finds that this is what happened. The applicant was certified as unfit for work for 23 to 26 August. She never attended at work to work again. She never attended at work on Monday 29 August. She never gave notice of termination, and she demanded wages and leave entitlements on 30 August, and accepted them on 1 September. She failed to give notice of termination as required by clause 5B of the award, and the respondent exercised the right provided in clause 5B to withhold moneys due to the employee up to but not above the maximum amount equal to the ordinary rate of pay for the period of notice. ORDER The inevitable result of the Court finding that the applicant ended the employment, and that the respondent did not, is that the application for compensation under section 170EA and for an order declaring an unlawful termination of employment must be dismissed. And the order of the Court is that the application be dismissed. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan. Associate : Date : 1 May 1995 Appearances: Applicant : The applicant appeared in person. Counsel for the Respondent : Mr A G E Robinson Solicitor for the Respondent : Abbott Stillman Wilson Date of Hearing : 28 and 29 March Judgment : 30 March