Nicole Marie-France Monchouguy v West Coast Enterprises [1995] IRCA 253

` C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - claim of unlawful termination - whether valid reason for termination - whether procedural fairness - decision to dismiss v manner of dismissal. INDUSTRIAL RELATIONS ACT 1988, S 170EA Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 NICOLE MARIE-FRANCE MONCHOUGUY -v- WEST COAST ENTERPRISES - WI 602/1994 BEFORE: WHEELER JR PLACE: PERTH DATE: 5 APRIL 1995

IN THE INDUSTRIAL RELATIONS) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 94/0602 BETWEEN: NICOLE MARIE-FRANCE MONCHOUGUY - Applicant AND: WEST COAST ENTERPRISES - Respondent MINUTE OF ORDERS BEFORE: WHEELER JR PLACE: PERTH DATE: 5 APRIL 1995 THE COURT ORDERS THAT: 1. The application is dismissed. NOTE:Settlement and entry of Orders dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 94/0602 BETWEEN: NICOLE MARIE-FRANCE MONCHOUGUY - Applicant AND: WEST COAST ENTERPRISES - Respondent EX TEMPORE REASONS FOR DECISION In this application, the applicant claims compensation for her dismissal on 29 November 1994. The dismissal arose in this way. The applicant was employed by the respondent as accounts manager, and had been so employed since May 1994. There was no dispute that the applicant was a competent worker and that her services were entirely satisfactory. The applicant says, briefly, that she had no prior notice of her dismissal until Mr Sampey, the respondent's accountant, came to her office and told her her services were no longer required. At first he did not wish to give a reason for her dismissal, but when pressed, she says that he told her that the only thing he could think of was that the daughter of Mr Jeffees, a director of the respondent, would be trained to do her job. The respondent says that in an effort to reduce overheads, the positions in the office were reconsidered and that it was decided that the accounts management and bookkeeping component of the applicant's work could be largely handled by engaging one of the respondent's accountant's employees on a contract basis for a period which, in the result, was less than one full day per week. The other duties of the position could gradually be absorbed amongst the existing staff, the rental consultants. There is relatively little room for dispute as to the way in which the office was organised, and as to the manner in which the dismissal took place. I find that the respondent did wish to save costs by restructuring its organisation, and that there was scope to restructure by abolishing the applicant's position, which was a unique position within the organisation. The applicant freely admits that she is not aware of what happened after she left, and I accept the respondent's evidence that her work was in fact performed on a part-time contract basis by one of the employees of the respondent's accountant. The saving of overheads by the use of contract labour in a small business is clearly capable of and does, in this case, constitute a valid reason for termination. The respondent having discharged its onus of proving that there was a valid reason for the termination, I now need to consider nevertheless whether, despite the existence of a valid reason, the termination was harsh, unjust or unreasonable. It is primarily of this aspect that the applicant complains. She says that there was no previous indication of the insecurity of her position, that she was not afforded the courtesy of an explanation at the time, until she insisted on one, and that there was a lack of clarity about the reasons for her dismissal, which has led her to be convinced that it was in order to give her work to a member of Mr Jeffee's family. She says that she was dismissed at a time at which it was very difficult to find alternative employment, and that the dismissal has had particularly unfortunate personal consequences because of her family situation at the time. Turning to the question of what constitutes a harsh, unjust or unreasonable termination, I note that in Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20, the Full Federal Court considered how these words should be interpreted and said: A court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employee. Any harsh effect on the individual employee is clearly relevant, but of course not conclusive. What this passage clearly demonstrates is that it is the decision to dismiss which must be harsh, unjust or unreasonable, rather than the manner of dismissal. I find in this case, that the dismissal of the applicant was handled in a manner which was tactless and insensitive. For that insensitivity, the respondent has, in a sense already suffered through having to defend these proceedings. However, it is my view that the legislation is aimed not at the manner of dismissal, but at the way in which the decision to dismiss was arrived at. There is nothing to suggest that the way in which that decision was arrived at in this case, involved anything other than a consideration of the requirements of the respondent's business, and a fair assessment of the position of its employees. I therefore am unable to grant the relief sought by the applicant, and the application will be dismissed. I certify that this and the preceding two pages are a true copy of the Reasons for Judgment of Judicial Registrar Wheeler. Associate: Date: The Applicant represented herself. Counsel for the Respondent: Mr C Grasso Solicitors for the Respondent: Millstead Grasso Hearing Date: 5 April 1995 Judgment Date:5 April 1995