Melissa Lucia Ciampa v John Licandro [1995] IRCA 294

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA TI 241 of 1994 TASMANIA DISTRICT REGISTRY B E T W E E N: MELISSA LUCIA CIAMPA Applicant A N D JOHN LICANDRO Respondent REASONS FOR JUDGMENT - DELIVERED EX TEMPORE 30 June 1995 PARKINSON JRThis is an application made pursuant to S170EA of the Industrial Relations Act 1988. The applicant was employed as an apprentice chef at the respondent Mr John Licandro's restaurant in Burnie, Tasmania. She commenced employment in November 1993 and her employment was terminated on 6 December 1994. It appears on the evidence that the applicant's apprenticeship indentures were never filed. The applicant's duties included preparation of food, in particular salads and entrees, general food preparation and cleaning duties. The evidence was that the applicant was a good employee, with whom there had been no performance or conduct related difficulties during the course of her employment. The applicant alleges that her employment was terminated at the initiative of her employer as a result of her pregnancy. The applicant is 19 years of age and in early December 1994 became aware of her pregnancy. At the time the pregnancy was confirmed she was approximately 6 weeks pregnant. As a result of her pregnancy the applicant was required to leave her parent's home and obtain temporary accommodation elsewhere. Her father, from whom she was estranged at the time of the termination of the employment, was called to give evidence in the proceedings. His evidence, to which I will turn shortly, was of particular importance in these proceedings. On 6 December 1994 the subject of the applicant's pregnancy was discussed in the kitchen at the workplace between herself and the cook Mrs Elaine Licandro, the respondent's wife. Shortly thereafter the applicant says she was told by Mrs Licandro that her employment was to cease. I deal with my factual findings in relation to the termination of employment later in this decision. There is dispute as to the circumstances surrounding the cessation of the employment on 6 December 1994. The respondent submits that what occurred on 6 December 1994 can only be described as an abandonment of employment by the applicant. It was also submitted that she left the employment with no explanation and for no apparent reason. This submission fails to address the particular aspects of this legislation, being directed to termination of employment at the initiative of the employer. Such definition includes the cessation of employment in circumstances which have been initiated by the employer. Termination of employment which is brought about by what might best be described as a constructive dismissal would be included in that category. So too would circumstances where an employee's working life is made plainly miserable by a supervisor or another employee, with the consequence that she or he leaves the employment. Such a termination of employment could not be described as being at the initiative of the employee, and in my view is plainly a termination at the initiative of the employer in the sense contemplated by S170EA of the Act. The factual circumstances The applicant's evidence was that on 6 December 1994 she attended for work and Mrs Licandro, having become aware of the applicant's pregnancy, said to her: " A pregnant woman is not fit to work in a kitchen and she would have to be gone within the week." The applicant's evidence was that she was then called a "slut" by the respondent's daughter, Miss Danielle Licandro, who was in the kitchen at that time. With that, and having appreciated that her employment was at an end, the applicant left the premises in distress. Her evidence was that on her way from the premises she informed the respondent of what had occurred and that she had been sacked. The respondent denies this and provides a different version of the conversation however, as I discuss later, he does not deny that the applicant was upset as she left the restaurant. Mrs Elaine Licandro denied making the statement attributed to her by the applicant. The applicant's evidence was that present at the time during the course of the conversation was the respondent's daughter Miss Danielle Licandro, and that immediately consequent upon the above statement being made by Mrs Licandro there was an exchange between the applicant and Miss Danielle Licandro. In that exchange the applicant said that she was called a "slut" by the latter. This exchange was said by the applicant to have occurred consequent upon the termination of her employment by Mrs Licandro. No objection was taken to this evidence by the respondent. Indeed the evidence of the respondent was consistent with this exchange having occurred and, aside from the slant to be put on it, there was no issue taken with the fact of it occurring. The respondent and Mr Paul Licandro both gave evidence that such abuse was merely in jest, or was a joke, despite neither of them being present at the incident. It was not explained in what context other than that described by the applicant that the term came to be used or directed to her, nor how it came to be that such a term came to be used against the applicant at that particular time. Mrs Licandro gave evidence that she heard no discussion between the applicant and Miss Danielle Licandro. However, in view of the size of the kitchen and the evidence of the applicant as to the proximity of Miss Licandro and Mrs Licandro in the kitchen at the time of the exchange, I consider this to be unlikely. Miss Danielle Licandro was not called to give evidence in these proceedings despite her evidence having the potential to cast light upon the circumstances of the termination. It was open and convenient for the respondent to call her and I am entitled to take this failure into account, particularly in view of the evidence of the applicant as to the conversation which occurred. Further, the evidence of Mr Antonio Ciampa, the applicant's father, was that some days after the termination of the employment he discussed the matter with the respondent. His evidence was that during the course of that conversation the respondent explained the termination of the employment in the following terms: "Once expecting a baby its no good working in a restaurant." The respondent denied that he made such a statement, although he later acknowledged that he had no recollection of it. However, I have no reason to believe that Mr Ciampa would be inclined to manufacture such a conversation, particularly having regard to the difficulties between himself and his daughter and the fact that the respondent was a personal friend of his. I accept his evidence in this regard. He gave his evidence frankly and, despite the language difficulty, made an effort to be understood. I am satisfied that he had a clearer recollection of the conversation than that of the respondent. It was submitted that the applicant abandoned her employment for no apparent reason. However, even on the evidence of Mr Paul Licandro as to the applicant's state of mind upon her departure from the premises, it was clear that she was in a disturbed and distressed state upon leaving. His evidence was that she used various expletives directed towards the respondent's daughter and the workplace in particular. These allegations were not put to the applicant, so she had no opportunity to respond to them. Nevertheless, clearly on any view of the evidence there had been an incident of some kind immediately prior to her departure from the workplace. Further, no credible explanation for the conduct of the applicant in abruptly leaving the workplace on the day in question has been given to the court. This conduct was not in character for the applicant and, despite her pregnancy and the precarious state of her relations with her family, and the obvious distress this had been causing her, she was still regular in her attendance at work and had continued to attend without absence. S170DF(1) The respondent bears the onus to establish that the termination of the applicant's employment was not for a reason or reasons including the applicant's pregnancy. Such a basis for termination is prohibited by S170DF(1)(f) of the Act. In this regard an extensive consideration of the nature and operation of S170DF(1) is contained in the recent decision of Northrop J in Jason Scott Johns v Gunns Ltd (as yet unreported, Hobart 18 May 1995). That onus may not be met merely be a denial, but rather the circumstances of the termination are relevant for consideration to establish the actual and subjective reason of the person terminating the employment. Whilst I understand that the respondent relies upon there being an abandonment of the employment by the applicant for no apparent reason, I am not satisfied that this was so. I accept the applicant's evidence that she left the premises in an extremely distressed state after having been told by Mrs Elaine Licandro that her employment was to end. In that regard I am of the view that the applicant's employment had been terminated by the direct conduct of the employee of the respondent, Mrs Elaine Licandro. However, even if this were not the case, the evidence as to the abuse directed to the applicant on that day by the respondent's daughter is sufficient in these circumstances to constitute a constructive dismissal of the type discussed earlier in this decision. Humiliating and offensive language was directed towards the applicant by another employee of the respondent in circumstances where the applicant was particularly vulnerable. This behaviour, if not endorsed, was at least tolerated by the supervisor in the area. This conduct is unacceptable in a workplace and constituted harassment of another employee who was in a relatively inferior position vis-a-vis the daughter of the owner of the business. There was no decision on the part of the applicant to leave the employment on that day, rather her hand was forced by the conduct of the respondent's employees. This of itself constitutes a constructive dismissal and not an abandonment of the employment. Having regard to the evidence I am not satisfied on balance of probabilities that the reason for the termination of the applicant's employment did not include the reason that the applicant was pregnant. Such a reason is not a valid reason for the termination of employment at the initiative of the employer. The respondent submits that even if there was a termination of the employment it was without authority of the respondent and was never ratified by the respondent. The applicant was in my view clearly subject to the direction and control of Mrs Elaine Licandro, who was her supervisor when she was working in the kitchen. The applicant's evidence was that she was informed at the commencement of her employment that she was to take her instructions and direction from Mrs Elaine Licandro and that she was her "boss". This latter matter was denied by the respondent and witnesses called by him, including Mrs Licandro. However, the applicant's father gave evidence that he was present when the applicant commenced on her first day of work and that this instruction was given in his presence. I accept his evidence in this regard. Further, I am satisfied that the circumstances of the supervision meant that the applicant was subject to the direction and control of Mrs Licandro in the course of her employment and that Mrs Licandro had ostensible authority to terminate the applicant's employment. In the circumstances, the applicant was entitled to assume that Mrs Licandro had the authority to terminate her employment. I find that the respondent contravened S170DF(1)(f) of the Industrial Relations Act 1988 in that the applicant's employment was terminated without valid reason and for the reason that she was pregnant. Having regard to the above matters I am satisfied that the applicant is entitled to succeed on her application pursuant to S170EA of the Act and that she is entitled to a remedy. I turn now to consider the question of appropriate remedy. S170EE -Remedy The applicant seeks compensation and no order for reinstatement. The applicant received no payment in lieu of notice of termination. Having been employed by the respondent for more than one year, she was entitled pursuant to S170DB(2) of the Act to not less than two weeks notice of termination or payment in lieu of such notice. Pursuant to S170EE(5) my orders shall include an order for damages in this amount, being $450.00. As to compensation, the evidence of both the applicant and Mr Paul Licandro was that discussions had occurred between them as to the applicant's maternity leave entitlements. It is clear that the applicant had intended to remain at work and to return to work at the conclusion of her maternity leave. In these circumstances, and having regard to the fact that I am satisfied that an order for reinstatement would be impracticable due to the attitude towards the applicant by the respondent's staff members, I have decided to order compensation. The applicant is unlikely to obtain alternative employment now until some time after her baby arrives. The termination of the applicant's employment in the circumstances of her pregnancy, and for the reason of her pregnancy, has directly brought about this situation. There is no question of mitigation in this case. There is no question of contribution or fault on the part of the applicant. The applicant claims compensation in the sum of lost earnings over the period from the date of the termination. I am satisfied that loss is also ongoing. The applicant earned $225.00 per week, being paid as an apprentice chef. Some 26 weeks have passed since the termination of the employment. The compensation awarded will be in the sum of the maximum amount available to be awarded to the applicant pursuant to S170EE(3) of the Act. That is the amount the applicant would have received in the six months following the termination of the employment. That amount I have calculated based upon the weekly wage to be $ 5,400.00. The orders of the court will be: 1. That the respondent pay to the applicant the amount of $450.00 in damages. 2. That the respondent pay to the applicant compensation in the amount of $5,400.00. 3. That time for payment is 21 days. I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson delivered ex tempore. Associate: Dated: 30 June 1995 Counsel appearing for the Applicant: Mr Bessant Counsel appearing for the Respondent: Mr Bartlett Date of hearing: 29 June 1995 Date of judgment: 30 June 1995