Marissa Teresa Novoselac v Andiron Pty Ltd [1995] IRCA 342

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - CONSTRUCTIVE DISMISSAL - WHETHER VALID REASON FOR TERMINATION - WHETHER PROCEDURAL FAIRNESS INDUSTRIAL RELATIONS ACT 1988, SS170EA, 170DC, 170DE MARISSA TERESA NOVOSELAC V ANDIRON PTY LTD - WI 95/1057 BEFORE: BOULTON JR PLACE: BRISBANE DATE: 22 JUNE 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY NO. W1 95/1057 BETWEEN: MARISSA TERESA NOVOSELAC Applicant AND: ANDIRON PTY. LTD. Respondent

MINUTE OF ORDERS

BEFORE: BOULTON JR PLACE: BRISBANE DATE: 22 JUNE 1995

THE COURT ORDERS THAT: 1. The application be 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. W1 95/1057 BETWEEN: MARISSA TERESA NOVOSELAC Applicant AND: ANDIRON PTY. LTD. Respondent

BEFORE: BOULTON JR PLACE: BRISBANE (HEARD IN PERTH) DATE: 22 JUNE 1995

REASONS FOR JUDGMENT The applicant is now 24 years old, having been born on 14 February 1971. She commenced employment with the respondent in February 1993 as a part-time medical receptionist. She became a full-time employee about three weeks later. On 11 January 1995 the applicant was told by the principal of her employer, a Dr. Mills, that she ought to resign rather than be dismissed. In consequence, she resigned from her employment. I find that, in the circumstances, her employment was terminated at the initiative of her employer. I accept evidence called on behalf of the respondent that during the applicant+s employment, she exhibited sub-standard performance in her clerical duties and she had, on a number of occasions, been rude and abrupt with patients of the practice. The applicant was spoken to on 16 separate occasions up to and including 30 November 1994 about clerical errors, and counselled. The applicant (who I thought a pleasant young woman), freely admitted to the catalogue of errors in her work which were taken up with her in cross-examination. She was less accepting of suggestions put to her about rudeness to patients. I accept that on 30 November 1994 the respondent's practice manager, a Mrs. Biggs, spent about three-quarters of an hour with the applicant, speaking to her about the problems with her performance as an employee. Mrs. Biggs told the applicant that if she did not improve, she would have to go back to part-time employment, and if the practice was still unhappy with her performance, she would have to finish up. Following this, the applicant was moved to a position with less contact with the public. There were, however, further instances of problems with her work, leading to Dr. Mills calling her in on 11 January 1995 and suggesting she resign. Dr. Mills was of the view that the applicant was not suited for employment as a medical receptionist. Having heard the evidence, and without wishing to be unkind to the applicant, I am inclined to agree with him. I conclude that the applicant's employment was terminated for a valid reason within the meaning of ss.170DE(1) of the Act, that being related principally to her capacity rather than conduct. I am satisfied that she was accorded procedural fairness in the events leading up to her termination. The applicant admitted in cross-examination that she knew from the counsellings she had had that her job was very much at risk. She also agreed that in the final meeting of 11 January 1995 Dr. Mills canvassed her employment history with her and she had plenty of time to put her case to him. The termination was not otherwise harsh, unjust or unreasonable. The order I make is that the application be dismissed.