D'Andrea v D C Carli, Furletti & Scott [1995] IRCA 286

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI1486 of 1995 B E T W E E N : MARYANNE D'ANDREA Applicant AND D.C. CARLI, FURLETTI & SCOTT Respondent Before: Judicial Registrar Chancellor Place: Melbourne Date: 30 May 1995 REASONS FOR JUDGMENT (EX-TEMPORE REVISED FROM DRAFT TRANSCRIPT) This is an application pursuant to section 170EA of the Industrial Relations Act by Maryanne D'Andrea in respect of the termination of her employment by D.C. Carli, Furletti and Scott, solicitors, of Carlton on 3 February 1995. The primary argument of the respondent is that the applicant was a casual employee who was excluded from the protection of the Act pursuant to section 170CC and regulation 30B(1)(d). The applicant is married with three children. She had several years experience as a legal secretary between 1977 and 1990 before she and her husband ran a convenience store between 1990 to 1993. In September 1994 the respondent advertised in The Age for a legal secretary with experience in litigation. The applicant forwarded her CV and shortly thereafter received a telephone call from Mr Potenza, one of the two partners of the respondent firm, in which he invited her in for an interview. Prior to the interview the applicant rang Mr Potenza to advise him that she had school age children and would have to work within school hours. An interview took place between the applicant, Mr Potenza and Mr Furletti, the other partner, on 20 October 1994. Concern was expressed by the partners in relation to the hours within which the applicant was available but it was agreed that the applicant would be given one week's trial. The applicant commenced her trial on approximately 24 October. Her hours were from 9.30 to 3 pm so that she could drop off and pick up her son. She was paid $412.50 for the week and this was calculated on an hourly basis. The applicant took some time coming to grips with the respondent's word processing equipment and, at the end of the week, she was given a couple more weeks before a further review. She continued working 9.30 to 3 pm, five days per week. It is not in dispute that in mid-November Mr Potenza called the applicant up to his office and advised her that it was not working out. The major problem was that with the applicant leaving at 3 pm extra pressure was being placed on Mr Potenza and other staff to deal with urgent matters, such as faxes or calls which came in after 3 pm and the applicant was sometimes unable to finish all of her work. The applicant was advised that she could work until Christmas by which time the respondent hoped to have a suitable full time secretary in employment. The respondent continued its advertising. The applicant accepted the situation and expected to stop work at Christmas time. She continued working from 9.30 to 3 pm, five days per week, until 23 December 1994. There is a major dispute between the parties as to what, if anything, happened in mid-December 1994. The applicant gave evidence that on 15 December she was called in to Mr Potenza's office where he advised her that he had changed his mind and he was very pleased with her in relation to her general work and her work on the computer, and that he wanted her to stay. The applicant said that she then suggested a work share agreement as a possibility and that she would be prepared to work three full days per week from 9 to 5 pm. The applicant said that Mr Potenza said he would speak to his partner and discuss it further in the new year. The applicant said that prior to the 15 December meeting she was uncertain as to whether or not she would attend the respondent's Christmas cruise as she had expected to stop work on or about 23 December. In general terms this reluctance was confirmed by two witnesses, Loretta Maiolo and Mirella Comparin. After the 15 December meeting the applicant felt confident that she was part of the team and would go on the cruise. Loretta confirmed that the applicant expressed these views to her, but Mirella had no such recollection. Loretta's evidence was attacked by the respondent on the basis that she was subsequently terminated by the respondent and had an axe to grind. The applicant said she remembered 15 December as being the date of the meeting because it was a pay day and Mr Potenza also agreed to chase up some overtime which was due to her. Mr Potenza had no recollection of this matter and denied that the applicant had ever worked any overtime. Interestingly, when the respondent subsequently produced its wage records they showed that for the week ending 15 December that the applicant was paid for an extra hour's work. Mr Potenza denied that the meeting took place. The respondent argued that it was highly unlikely that Mr Potenza would change his mind to such an extent between mid-November and mid-December and it was, therefore, highly unlikely that such a conversation occurred. However, given the good quality of the applicant's work, the difficulty the respondent was having in obtaining full time staff and what seems to have been the increasing ability of other staff to cover for the applicant's absence after 3 pm, I find that it is not so unlikely that such a change of mind occurred. With a number of staff changes taking place in a short period of time, it may be that Mr Potenza has become confused as to the basis on which he employed each of the employees. Indeed, Mr Furletti described two long term part time permanent employees of the respondent as casual on the basis that they were paid an hourly rate which indicated a clear misunderstanding of the true position. In the circumstances, I accept the applicant's contention that from 15 December 1994 she was given the indication that her position was to become a permanent one, whether five days 9.30 to 3 pm or three days 9 to 5 pm. The respondent argued that the first occasion on which it had asked the applicant to work in the new year was on 23 December, when it became apparent that Loretta Maiolo was refusing to return to work when the office re-opened on 9 January. The applicant agreed that she was asked to return to work on 9 January when Mr Potenza was to re-open the office. However, she said that she had fully expected to return to work on 16 January in any case. The respondent argued that on each night in the week commencing 9 January that Mr Potenza and the applicant discussed whether the applicant would work the next day, and that this arrangement confirmed the casual nature of the employment. The applicant agreed that such discussions took place but, because this was in the week before many businesses would re-open, it was a matter of whether there was enough work to require her attendance or whether she should remain on holiday with her family. She was working the first week as a favour to the respondent. On 16 January all the staff returned to work. The applicant worked from 9 to 5, five days per week, through the last weeks of January as her husband was able to look after the children. The applicant agreed that she knew the respondent was conducting interviews with a view to employing a full time secretary, or perhaps two. The respondent argued that this was consistent with the fact that the applicant knew that she was in casual employment until such an employee was found. It is not in dispute that a meeting occurred toward the end of January 1995 at which the applicant, Mr Potenza and Mr Furletti attended. The applicant says that her work hours once her children were back at school were discussed. She said that she could work from 9.30 t 3 pm but would prefer to work three full days per week. She said that she was asked by Mr Furletti to stay. Mr Furletti denied the latter part of the conversation and gave evidence that he said that he would try to keep her on a casual basis and accommodate her wherever possible once they found experienced full time staff. I prefer the applicant's recollection of the meeting. It is clear that she was left with the impression that she had a permanent position. She was still working full time, five days per week. There is no evidence to suggest that she was attempting to find any other work as she obviously believed her position was secure. On 3 February the applicant was called in to Mr Potenza's office. Her evidence was that Mr Potenza said he had changed his mind and decided to give the applicant's job to Jo, Mr Potenza's ex-secretary, who had more experience on the computer. The applicant said that she was shocked and nearly in tears. This was confirmed by Mr Potenza. In my opinion, this is hardly the reaction of an alleged casual employee who knew that the end was near. The applicant tried to work on but was too distressed. She excused herself from the office and never returned. Mr Potenza's ex-secretary Jo commenced work some time later working 9 to 5 and perhaps a little later, Monday to Wednesday. The evidence of Mr Potenza and Mr Furletti was that they only became aware of Jo's availability after the January meeting. It seems that because she had worked for the respondent over a number of years and had more experience than the applicant on the respondent's word processor that she was preferred. However, given that they were unaware of her availability prior to the January meeting, it does not surprise that they may have given the applicant the indication of security in her employment. There are a number of indicia to be considered when considering whether there is a continuous contract of service as opposed to casual employment. These are clearly stated in Licensed Clubs Association of Victoria and Another re Christine Higgins 4 VIR 43, and they are as follows: the number of hours worked per week; whether the employee worked according to a roster system that was published in advance and whether the employment pattern was regular; whether there was reasonable mutual expectation of continuity of employment; whether notice was required by an employer prior to the employee being absent or on leave; whether the worker reasonably expected that work would be available; and whether the worker had a consistent starting time and set finishing time. In this case the applicant worked significant hours each week in a regular employment pattern. She was paid an hourly rate. There was no evidence of an organised roster system. On the basis of my findings of the meetings of 15 December and late January, there was a reasonable expectation of continuity of employment. The applicant reasonably expected that work would be available and she had a consistent start and finish time. In all the circumstances, I find that the applicant was not a casual employee within the meaning of the Act. In the alternative, the respondent argued that it had a valid reason for the termination of the applicant in that it was due to the operational requirements of the business. The respondent said that Jo was the preferred employee because of her greater experience on the word processor and, by inference, her superior ability to train the new employees on the word processor. The onus is on the respondent in relation to this question and there is insufficient evidence to support the alleged reason. Neither the applicant nor Jo was comprehensively tested as to their respective abilities and it appears that matters such as bringing in a trainer from outside were not even considered. In any case, I find that there was clearly a breach of section 170DE(2) in that the applicant was not consulted, counselled or warned in relation to this matter before the decision was made to re-employ Jo and terminate the applicant. In relation to the question of remedy, both the applicant and respondent argued that reinstatement was impracticable. There were four secretaries employed by the respondent, only two of whom were part time. One part timer had worked for over 12 years and the other, Jo, has only recently been re-appointed. Presumably one of the two would have to make way for the applicant. Further, there has been a breakdown in good will and trust as a result of various allegations made since the time of termination. Given the small size of the business and nature of the business and the problems outlined, I find that reinstatement is impracticable. In relation to the question of compensation, I note that the applicant has been unable to find employment since early February. She spent some time in March and April completing courses in computer work and office administration which should assist in this regard. She has applied for a number of jobs, many in fairly recent times. I have no doubt that she will shortly find appropriate employment. In relation to her ongoing employment with the respondent had she not been terminated, I find that some doubts exist because in all probability she would have been asked to work three full days per week and some uncertainty existed as to the availability and suitability of adequate child care arrangements. In the circumstances, I propose to order compensation in the sum of $6500.. MINUTES OF ORDERS THE COURT ORDERS: 1. The Respondent pay the Applicant compensation in the sum of 6,500 within 21 days from this date. I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Chancellor. Associate: Dated: Counsel for the Applicant: Mr J. Bailey Counsel for the Respondent: Mr K Oliver Solicitor for the Respondent: D.C. Carli, Furletti & Scott Date of hearing: 30 May 1995 Date of judgment: 30 May 1995