Margarita Veljanoska v Lalor Child Care Centre [1995] IRCA 195

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 2901 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: MARGARITA VELJANOSKA Applicant A N D LALOR CHILD CARE CENTRE Respondent Reasons for Judgment 15 May 1995 PARKINSON JR This is an application pursuant to S170EA of the Industrial Relations Act 1988. The following persons gave evidence in the proceedings: Magarita Veljanoska - the applicant Jenny Makovska - publisher of the circular Helen Sirsen - Coordinator, Lalor Child Care Centre Boris Trajkov - President, Lalor Child Care Centre Kathy Milan - child care worker, Lalor Child Care Centre Elizabeth Sibinovic- child care worker, Lalor Child Care Centre Lili Stojonov - child care worker, Lalor Child Care Centre

The applicant was employed as a child care assistant by the respondent between September 1988 and 21 December 1994. The respondent operates a community based child care centre at Lalor in Victoria. At the time of the applicant's employment, the centre operated on the basis of 40 full time equivalent places. Sometime in mid 1994 the applicant decided that she would establish her own child care centre operating out of her domestic premises. This decision was made in conjunction with her husband and son, having regard to the large demand for child care places in the area. The applicant was aware of an extremely long waiting list at the respondent's centre and at most other centres in the area. The applicant informed her employer of her intention to commence her own business after August 1994. There is dispute between the parties as to when this information was given and what consequences arose from it in terms of the termination of the employment. There is no issue in these proceedings as to the applicant's capacity to perform her duties. She was well regarded by her employer and, but for the issues arising out the establishment of her business, would have remained employed by the respondent. Nor is there any issues as to decision by the applicant to commence her own business. The respondent did not oppose that decision, and nor did it oppose the applicant's continued employment during the development stages of her own business. The issue for determination in these proceedings is whether the termination of the employment was initiated by the applicant or the respondent and when this occurred. It is contended for the respondent that there was no termination of the applicant's employment by the respondent. The respondent says that in September 1994, when the applicant first informed the respondent's President, Mr Trajkov and its Coordinator, Ms Sirsen of her business plans, an agreement was made as to the applicant's future employment. The respondent says it was informed by the applicant that she intended to commence operating her business in the new year, specifically in January 1995. The respondent argues that in September 1994 the applicant gave the respondent notice of her intention to cease employment at the end of the calendar year, and that as a result of her advice regarding her business proposals the substance of the discussions and the agreement between them was reduced to writing (Exhibit L1). The applicant denies ever having seen or received Exhibit L1 and she further denies that such terms as are contained in it were ever agreed. Her position is that she informed the respondent that she would give them four weeks notice when she was ready to leave to commence operating her own business. Evidence and findings of fact: The evidence was that between August and December 1994, the applicant progressed her centre plans, including building renovations, government and community services registration procedures and publicising the venture. During November 1994 the applicant publicised the business plans by way of a circular which was distributed at a community dance evening (Exhibit L5). This circular was in my view unambiguous as to its contents. It stated that the applicant's premises would be open in January 1995, and I accept that this was the intention of the applicant at that time. Further, the applicant's evidence was that by November 1994 bookings had been accepted for the centre on and from 16 January 1995. Her evidence was that she was the carer authorised in this regard, and that as a consequence of these bookings the applicant cared for four children on a family day care basis from January onwards. I am satisfied that it was the intention of the applicant to commence the centre's operation in January 1995. It is clear from the evidence that, for whatever reason, the project did not advance at the rate which had been anticipated by the applicant, and that it was apparent by December 1994 that the renovations enabling registration and full capacity operation would not be completed in time for a January 1995 opening. At the same time the evidence of the respondent was that it had taken steps to arrange for a replacement employee for the applicant to commence on a permanent full time basis from re-opening in January 1995. That replacement was a person who had been employed by the centre as a regular casual reliever for some time. The evidence was that these arrangements were put in place prior to 21 December 1994, the date of the applicant ceasing work. Further I am satisfied on the evidence of the various staff members of the respondent that it was a common belief that the applicant would be ceasing her employment at the end of the year and that she would be commencing her own operation in January 1995. I accept the evidence that mention was made of this fact at both the staff meeting held in October 1994 and also at the Annual General Meeting held on or about 9 or 10 December 1994. The conduct of the respondent in relation to hiring a replacement employee, and the various announcements that it made, satisfy me on balance that the document which is Exhibit L1, is a true and accurate reflection of the arrangements agreed between the parties to these proceedings. I do not accept that the memorandum was invented by the respondent for the purpose of these proceedings. It is possible that the applicant merely failed to recall the memorandum in view of the significant pressures on her during the period of the development of her business venture. Having regard to the nature of the business of the respondent it is unlikely that the respondent would have been of a mind to commence the new year without certain and definite staffing arrangements. The terms of the agreement contended for by the applicant are inconsistent with any certainty of operation for the respondent. I do not accept that they were likely to have been agreed . The applicant alleges that on 21 December 1994 the respondent terminated her employment by calling her into the office and handing her a cheque for her outstanding entitlements. Her evidence is that she informed Mr Trajkov and Ms Sirsen that she would be coming back after the Christmas break as her business was not yet ready to commence. The respondent agrees that this was her response and that she became very upset when told that arrangements could not be changed to accommodate her wishes at this late stage. I am satisfied that the termination of employment in this matter was one initiated by the applicant and that this occurred on or around 14 September 1994. I am further satisfied that the employment came to an end as a consequence of that agreement of 14 September at the conclusion of the business of the respondent on 21 December 1994. That the applicant changed her mind as to the date on which it was convenient for her to cease the employment does not change the characterisation of what occurred on 21 December 1994 from a termination at the initiative of the employee to one brought about at the initiative of the employer. It is convenient to here set out an earlier consideration by me in Douglas v Tarenberg Pty Ltd (VI 1104/94, 24 November 1994, unreported) of the meaning of the term "termination of employment" in S170EA of the Industrial Relations Act. At page 4 I said: "The issue that arises in this case is what is the meaning of the term "termination" in S170EA of the Act, and what is the meaning of the term "at the initiative of the employer", which is the termination to which the Court is directed by virtue of the operation of S170CB and Article 3 of the Convention Concerning Termination of Employment at the Initiative of the Employer, which is Schedule 10 of the Act. It is clear from the various authorities of this Court, in particular the decision of Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 and the decision of Gray J in Association of Professional Engineers, Scientists and Managers Australia v Skilled Engineering (1994) 122 ALR 471 that, in considering an application pursuant to S170EA, it is the act which brought about the termination of the employment with which the Court is concerned." I have also had regard to the decision of his Honour Moore J in Grout v Gunnedah Shire Council (1994) 125 ALR 355 and am satisfied that this is not a case where it might be said that the applicant did not voluntarily leave the employment or that there were steps taken by the employer which effectively terminated the employment. In this matter I am satisfied that the act which brought about the termination of the employment was that of the applicant on 14 September 1994 in notifying the employer of her intention to cease employment as a result of the establishment of her own child care business, and the agreement in that regard. I further find that the date notified as being the date at which the employment would cease was that of the cessation of business for the Christmas period. I find that the applicant did terminate the employment voluntarily. I find that this application is made in respect of a termination of employment of a type which, having regard to the definition of the term "termination of employment" discussed herein, does not fall within S170EA of the Industrial Relations Act 1988 and I therefore dismiss the application.