Fiona Jane Lawton & SDAEA v Ultinel Pty Ltd [1995] IRCA 322

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1547 of 1995 B E T W E E N : LAWTON & SDAEA Applicant AND ULTINEL PTY LTD Respondent Before: Judicial Registrar Staindl Place: Melbourne Date: 28 June 1995 REASONS FOR JUDGMENT (EX - TEMPORE - Revised from draft transcript) Fiona Lawton (the applicant) commenced employment with Ultinel Pty Limited (the respondent) on 18 November 1994. The respondent trades as Maxi Foods and runs a large supermarket in Ferntree Gully. The applicant commenced work as an assistant in the delicatessen area at the supermarket. On 13 December 1994 the applicant was warned that she should not park in the supermarket car park; ostensibly this warning was provided to the applicant in writing. It was argued by Mr Blake who gave evidence on behalf of the respondent and is the Manager of Maxi Foods that all staff had been told during their training that a special car park had been allocated for staff parking. This training had occurred when the respondent took over the supermarket in late 1994 or when a new member commenced employment after that time. However, no direct evidence was given about particular people undergoing such training or the content of such training; rather, Mr Blake assumed that the Training Officer discussed such matter. The applicant denies that she was ever told about this policy and I accept her evidence. She and another witness gave evidence that they had not been told of this policy and they had seen other staff parking their cars in the supermarket car park. On the day following this first warning the applicant parked her car in a car park outside a nearby hotel. This car park was separated by a road from the supermarket and the car park surrounding the supermarket. The applicant was again warned about parking in this car park. She became upset because she believed she had parked her car in accordance with her employer's wishes. It was then pointed out to her that she should have parked in a specially designated staff car park beyond the hotel car park. A diagram was drawn for the applicant to show her precisely where she was allowed to park. It seems to me that the fact that it was ever necessary to draw such a diagram suggests that the applicant did not know where she was supposed to park and that she did not know that what she was doing breached her employer's policy; again, her evidence was confirmed by the unchallenged evidence of Karen Morrison, a former employee of the respondent. Accordingly in my view these two warnings were unfair. The respondent applied a policy to the effect that if an employee received three warnings then his or her employment was to be terminated. This policy is sensible enough in itself but in this case was applied in a rigid manner. Mr Blake presented as a person who could display a measure of consideration for others but seemed to be quite inflexible when it came to the question of applying the procedure leading up to termination. He took the view that as the applicant had received three warnings that was the end of the matter. The third warning arose out of an incident on 3 February 1995. The applicant had commenced working afternoon shift in about mid-January. On Fridays the applicant was rostered to work from 12 pm to 10 pm; Fridays were busy days and were especially busy between 5 pm and 7 pm. On 20 January and 27 January the applicant had to work from 12 noon to 7 pm without a meal break; understandably this was of concern to her. After her meal break on 27 January she spoke to her Supervisor, Ms Carmela Di Crea saying that she could not wait until 7 pm for her meal break. A compromise solution was agreed such that the applicant would have a half-hour break before 5 pm and a further half-hour break after 7 pm. It should be noted at this point that the respondent agreed that employees had to commence a meal break after 5 hours of work. For the applicant it meant that she would not have to work beyond 5 pm on a Friday without a break. At about 4.40 pm on Friday, 3 February, the applicant asked Ms Di Crea for a half-hour break (Ms Di Crea had not been present at the delicatessen for the previous 40 minutes). Ms Di Crea refused whereupon the applicant insisted on going for a break and walked away. After about 20 minutes the applicant went to see Mr Blake who told the applicant that she was dismissed. In fact, Mr Blake had already spoken to Ms Di Crea and had made a decision to dismiss the applicant. In this regard I think there was a failure to give the applicant procedural fairness in accordance with section 170DC. More fundamentally, however, in my view there was no valid reason for the termination of the applicant's employment. The applicant and Ms Di Crea had agreed the previous Friday to allow the applicant to have a half-hour break before 5 pm. If the applicant did not commence to take her break shortly after 4.30 pm then it would run past 5 pm and the applicant had previously been made aware of the importance of the period between 5 pm and 7 pm. Thus, in my view there was no valid reason for the termination. I only add that if I am wrong about this then in my view the termination was also harsh, unjust and unreasonable pursuant to section 170DE(2) of the Act. That brings me to the question of remedy. Shortly after her termination the applicant obtained other employment. She needed to work to get some money. She now says that she wishes to remain in that employment rather than be reinstated, especially as she finds Ms Di Crea antagonistic towards her. I accept these reasons and find accordingly that reinstatement is impracticable. I next consider compensation. The applicant obtained casual work about a week after her termination. This job was then made permanent on 27 April 1995. It seems to me that at this point the applicant has elected to forego the possibility of reinstatement with the respondent; this is not to be taken as applicable to other cases but merely reflects the circumstances in this case. However, I do not think I should order any compensation beyond that date but I do order compensation up to that date. It is calculated as follows. During the period 3 February to 27 April 1995 there is a period of about 12 weeks. The applicant's salary with the respondent was $387.90 per week making a total for the 12-week period of $4657.80. The applicant earned $3297.07 during this time leaving a balance of $1357.73. From this should be deducted one week from 3 February 1995 as the applicant chose not to work out the week's period of notice and this was accepted by the respondent. That leaves a balance of $969.83. However, the applicant should also have received pro-rata annual leave; I calculate this as being 0.85 of a week which gives $329.71. The total amount due to the applicant is therefore $1299.54; this is to be paid within 7 days. I only add that there was insufficient evidence to make a finding as to any superannuation contributions due. Accordingly I order that the respondent to pay to the applicant compensation of $1299.54 within 7 days. MINUTES OF ORDERS THE COURT ORDERS: 1. The respondent pay to the applicant compensation of $1299.54 within 7 days. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl. Associate: Dated: Representative for the Applicant: Shop Distributive & Allied Employees' Association Counsel for the Applicant: Mr A Burke Representative for the Respondent: Mr B Blake Date of hearing: 28 June 1995 Date of judgment: 28 June 1995