Susan Anne Frazer and Experienced Office Furniture Pty Limited [1995] IRCA 252

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI 0508 of 1994 BETWEEN: Susan Anne FRAZER Applicant AND: EXPERIENCED OFFICE FURNITURE PTY LIMITED Respondent BEFORE: McIlwanie PLACE: Sydney DATE: 29 March 1995 REASONS FOR JUDGMENT This is an application under section 170EA of the Industrial Relations Act 1988 made by Susan Ann Frazer in respect of the termination of her employment by Experienced Office Furniture Pty Limited, the respondent. The applicant claims: 1. (a) An order declaring the termination of the employer's employment of the employee to have contravened division three of part VIA of the Industrial Relations Act 1988, the act, and (b) An order that the respondent pay compensation to the employee. 2. Such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the respondent had not been terminated: see section 170EE. Early in the proceedings a request was made to amend the application to add to paragraph two as follows: "And that the applicant be reinstated but should that prove impracticable an order that the respondent pay compensation to the applicant." 3. Pursuant to section 170DB(2) of the Industrial Relations Act, the applicant be paid the required period of notice. I also have a certificate dated 10 November 1994 signed by Vice President McIntyre of the Industrial Relations Commission who certifies that the Industrial Relations Commission has been unable to settle this matter by conciliation. I am satisfied that the application is a matter appropriate to be considered by the court. Ms Frazer gave evidence before me of her employment as a personal care attendant helping aged people and that this work is considered by her to be an alternative career. Since about September 1994 Ms Frazer has been working over three days comprising 20 hours per week. The applicant gave a history of being employed by the company in 1988 as a part time cleaner and moved on to a full time position in 1991/92 which involved sales and some office work. There is as part of her affidavit, exhibit two, a job description which gives her the title of, Assistant Manager. The evidence which I accept is that document was issued some time around January 1993 and I note that Mr Wildschut very appropriately does not dispute that date, although he could not confirm its accuracy in his evidence. The history of this matter is sad in some ways, in that Ms Frazer was obviously a decent employee which is shown by the company's own records, particularly by her promotions and by the fact that when Mr Wildschut and his wife went on an overseas holiday they left Ms Frazer virtually in charge of the operation. It seems to me that it may well have been just a little too much to ask of her in all the circumstances, given the fact that there were some 13 male employees in a workshop and the other difficulties that the applicant obviously faced in that situation. Nevertheless, Ms Frazer impressed me as a loyal employee. This is confirmed by evidence of the respondent of the work done by Ms Frazer when a fire occurred on the premises during the absence overseas of Mr Wildschut and his wife. This incident could have been quite devastating to the company's operation but Ms Frazer was diligent in protecting her employer's interests. It is common knowledge that in these sort of instances there can be opportunities for stock to be written off to advantage the employee or owner. There is certainly no allegation made that the applicant did other than protect the interests of the respondent. In the earlier part of the evidence there is reference to differences of opinion or a disappointment with the level of performance of Ms Frazer. In some respects it was alleged that the applicant was not living up to Mr Wildschut's expectations in her employment and was sent to a seminar to improve her skills. Ms Frazer in her affidavit sworn on 24 March 1995 in paragraph four agrees that in 1991 she was moody and gave a medical explanation as the reason for that being the case. So, in relation to that aspect of the matter I am not convinced that that is a factor that I ought to take into account as being a possibility that her future with the company was in any way limited. Unfortunately, Mr Wildschut was not in this country when the incidents which are alleged to have occurred for which Ms Fraser is being held responsible. He relied on reports from other persons. When the facts are examined, and I find accordingly, that the information he was given was wrong in a number of material respects. As frequently occurs in these cases, there is a dispute between both Mr Wildschut and Ms Fraser as to what was actually said when the termination occurred. On either version it was a very short conversation. It is very difficult for me and I do not know that I need to, in the circumstances, determine which person is either mistaken or not able to recall exactly what happened. In any case I do not think in the circumstances it is helpful for me to make such a determination. However, it is clear to me that there are two versions. There is the version given in the applicant's affidavit sworn on 1 July in paragraph (e) and there is the version given in the affidavit of the applicant on 1 July in paragraph 7. That is to be contrasted with the respondent's affidavit which is exhibit D in these proceedings on 19 August and his outline of the conversation is in paragraph 4. I have no magic wand. I really cannot go back in time and determine what actually occurred between the parties in that conversation but I am satisfied that had Mr Wildschut made appropriate inquiries he would not have been in a position to put any type of allegation of dishonesty, which is what he was putting to Ms Fraser. That is based on the evidence that I have before me and I will refer to that later in this judgment. However, what I do accept is that at some stage during that conversation, Ms Fraser indicated to Mr Wildschut that she may have been more tolerant of Cathy Arthur than some of the other employees because of her friendship for her. But nothing much turns on that because the allegations which I understand the company to rely on are two fold. I should also mention that I have heard some evidence of a dispute between the applicant and a Francine Farragher who is the sister-in-law of Mr Wildschut. There is also evidence from Mr Wildschut that there was a dispute between Ms Fraser and his wife at some stage. I accept his evidence in relation to the dispute with his wife. In fact that is one of the factors that I will take into account in a determination that I am later to make in relation to this matter. Basically there are two allegations of dishonesty against the applicant. One was, I think, put to her and the other may not have been put to her before her termination. I am satisfied on Mr Wildschut's evidence and Ms Fraser's evidence that the allegation that she had signed for overtime for Cathy Arthur when that women played a card game was raised with the applicant. Because it is quite clear to me based on the company's records that the other allegation may not have been put to Ms Frazer and therefore it is not a matter which can be relied on, is quite clearly wrong. That is, the allegation that Ms Frazer allowed Ms Arthur to claim a sick day when her son was fighting in a boxing match in Sydney. Now, I do not have before me external details as to when this boxing match occurred. All I have to go on is the evidence of Mrs Badman which concedes that she cannot really remember the dates that were involved in this incident. In her affidavit in paragraph 5 Mrs Badman states: "In the week before 10.5.1994, Cathy told me that her son, a boxer was in a fight next Tuesday in Sydney." According to a record of the company which is exhibit 5 (time sheet of Mrs Badman, it is immediately apparent that Mrs Badman did not work on either Saturday 7th May 1994 or Monday 9th May 1994 but was at work on Tuesday, 10 May 1994 so that in her affidavit she is referring, I find, to a conversation that took place in the week ending Friday, 6 May 1995. But in any event, in this affidavit, Mrs Badman states: "On 10.5.1994 she telephoned in to say she was sick." There is no evidence before me that Mrs Badman took a call to that effect. Nor is there any evidence from any other employee that there was a call to that effect, but what I have in front of me is a record of the company in exhibit 5 for Tuesday, 10 May which shows that Mrs Arthur was on annual leave. In those circumstances I find that allegation of taking sick leave on Tuesday 10 May 1994 to be totally untrue. There was a lot of cross-examination of the applicant on a couple of issues, and I think I remarked during the course of the evidence that it, is hardly "gross misconduct" if people play card games on the office computers. I accept the evidence from Mrs Badman that Mr Wildschut probably did not know that the games were on her computer. If it is such a serious matter for the employer then those card games ought not to be on the machines. It is wrong for computer suppliers to install them without specific consent of the employer, because if the games are they are there employees will play them. As I think I indicated, I have seen in my various work places and in chambers computer games being played when people ought to be doing other things. I certainly do not regard it as serious misconduct. Now, there were other issues where much was sought to be made of the fact that Cathy Arthur should not have been in the office of Patricia Badman but the realities of the evidence was that the door was never closed. Moreover Cathy Arthur had access to the room when she was required to clean it. The other difficulty for the company in relation to Mrs Badman's evidence was that she was quite clear in saying that this incident of the "card playing on the computer" occurred before the fire. There is no question between the parties that on 28 May a fire occurred on the company's premises. The evidence from both Ms Fraser and Ms Arthur was that they say they played the games on 26 May 1994 which was a day in which, according to the company's records again, no overtime was claimed or paid. I accept their evidence. However, I have taken the opportunity of re-reading the evidence of Catherine Arthur together with the diary of her daughter produced by Mrs Badman to confirm various dates when the events happened. Whilst I would be the first to say that Mrs Badman acknowledged, that she was maybe a bit hazy on some of the dates, however she was quite adamant that her daughter went shopping on 26 June 1994. I just refer both parties to the affidavit evidence which was unchallenged before me of Catherine Arthur in paragraph 5 of her affidavit, sworn on 24 March 1994 in which she makes the statement: "Trish (Patricia) Badman was waiting for her daughter to go shopping." In the light of that evidence I find that any playing of the card game was done on 26 May 1994 rather than 31 May 1994 which is the date the company alleges the incident took place. Mrs Arthur gave evidence that it was her practice or the practice of the company that if Edith Cassidy was away then Mrs Arthur would carry out the work that was normally carried out by Edith Cassidy. An examination of exhibit B and exhibit 5 discloses that for the same days, that is the two days in which the overtime was paid on the Tuesday 31 May and the Wednesday 1 June 1994 Edith Cassidy was recorded by the company as being on sick leave. It seems to me that if Mrs Arthur is doing somebody else's job in addition to her own then there would be some entitlement to overtime. The amount paid was in one case one hour 33, which is on 31 May 1994 and then a .67 hours on 1 June 1994. On the evidnece the monetary value of that claim was no a significant amount. I do not know that I need to say any more about Mrs Badman's evidence. I do not understand why this incident occurred as Mrs Badman appeared to be trying to give her best recollection. However there is enough other material before me to find that her evidence was not correct about significant times or dates. The next witness called by the respondent was a director of the company, Mr Wildschut, and as I have indicated earlier I partially accept his evidence as to what occurred with Ms Fraser in their conversation, but he was acting on wrong information. The other difficulty for him is he did not carry out his own independent investigation of the facts and had he done so and looked at the records in the manner in which I have done he may have come to a different conclusion. I do not need to say any more. He was not here when these events happened and he relied on other people and in my view they let him down. In relation to Mr Watt's evidence, Ms Frazer confirmed that there was a discussion of some nature between her and Mr Watts. The difficulty for the company is that Mr Watt volunteered in response to a question from me that he remembered this conversation in bed some time after the termination occurred. Whilst it might be put forward by the company as a factor I should take account of in considering the compensation aspect of the matter it was not available to Mr Wildschut at the time of his interview with Ms Frazer. In any event, I accept that Mr Watt's recollection was not good as to time or date except he was fairly firm it was a morning tea break. I prefer to accept Ms Frazer's version on this issue. Ms Frazer indeed freely admitted in the early part of her evidence the she wanted to have a break from work after her efforts with the fire. In relation to Mr Peter Wildschut, he suffers from the same position as Mr Watt. He does not recall what happened or the dates except that he did volunteer evidence that he was asked by Patricia Badman to turn the computer off after the playing of computer games had finished. Here is another instance where there was more than one person aware that the computer was being used to play card games. I have had extensive submissions from counsel in this matter and I do not mean any discourtesy to them but the hour is late. I tried to deal fairly with the evidence of the respondent, however, it appears to me it has failed on its onus to prove that there was a valid termination. I think the company has breached a number of sections of the Act. I will just broadly outline them because I understand the company, on any view, is in breach of section 170DB in that it did not give the required period of notice of four weeks. I find positively that Ms Frazer was a trustworthy employee and not a dishonest person. The applicant certainly has not acted dishonestly in relation to her employment. Even if I were wrong on that finding, the matter is hardly serious misconduct on which somebody can be instantly dismissed particularly when you take account of the period of time that Ms Frazer has been employed there and her endeavours to protect the employer's interest after the fire. The company, in my view, did not give the applicant a proper hearing nor did it conduct a substantive independent investigation of the matter which it is required to do under the provisions of section 170DC. If I am wrong on all of those issues I would still find in terms of 170DE(2) that the termination would have been harsh and unjust or unreasonable particularly in the light of the way in which Ms Frazer conducted herself during a difficult period when the business could have been lost. I have thought long and hard about the issue of reinstatement. I am obliged to consider that. It is a lineball situation as to whether I should reinstate Ms Frazer to the position. There are a number of factors in that but I have decided to find that it is impractical. I do so based on Mr Wildschut's evidence together with the fact that his sister-in-law is now employed as a manager in the business. There is evidence before me that there were differences between Ms Frazer, Mrs Wildschut and Ms Farragher which were not agitated to any great extent before me in this hearing. Furthermore Ms Frazer has given evidence that she wishes to pursue an alternative career. Had I, of course, taken a different view and reinstated Ms Frazer then it would have been a reinstatement with all her entitlements up to date which, because of the time that has elapsed in the hearing of this matter is worth nine months of salary. I know the company has suggested that it offered her job back in August 1994, however, in my view Ms Frazer is entitled to come to the court and be vindicated particularly as I find that there is no substance in the allegations of dishonesty made against her by the respondent. I also find that the applicant has suffered and will continue to suffer certain economic consequences from this action which will continue for some time in the future. It may well be for at least a further six or twelve months as Ms Frazer looks for full time employment. The evidence being from her that she is training to be a personal carer and at the end of her course the applicant will have to look for further employment. In summary, the respondent has not proven that it had a valid reason for terminating the applicant. On the issue of the overtime I find that Ms Frazer was not dishonest in her dealings with her employer. I find that Ms Frazer will still suffer the consequence of this action for a considerable time into the future. I propose to award her the maximum amount of compensation which I understand to be $16,900. I note the company has paid annual holidays and long service leave but I also award her the amount required pursuant to the period of notice that should have been paid of four weeks. I note the evidence, and I accept the evidence of Mr Wildschut that he paid one day and therefore the amount for the contravention of section 170DB(1) and 170DB(2) is $1,950, plus $520 being the six days not paid, making an amount of $2,470. After hearing from counsel for both parties and granting an adjournment to enable an agreement to be reached, I order that: (i) $2470 be paid by 4.00 pm on 5 April 1995; (ii) $2530 by 4.00 pm on 19 April 1995; (iii) $5000 by 4.00 pm on 17 May 1995; (iv) $5000 by 4.00 pm on 14 June 1995; and (v) $4370 by 4.00 pm on 4 July 1995. I certify that the preceding eight (8) pages are a true copy of the reasons for judgment of Judicial Registrar McIlwaine. Associate: C Sternberg Date: 9 June 1995 Appearances: Counsel for Applicant: Mr L Berwick Solicitor for Applicant: Mr Hampton Counsel for Respondent: Mr W Tregilgas Solicitor for Respondent: Mr J Hollier