Louise Anne Robinson v Rydges Hotels Limited trading as Lakeside Hotel [1995] IRCA 372

CATCHWORDS TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION -CONTRACT OF EMPLOYMENT - TERMINATION OF CONTRACT BEFORE WORK COMMENCED - COMPENSATION Industrial Relations Act, 1988 Sections 170 EA 170 EE(3) LOUISE ANNE ROBINSON V. RYDGES HOTELS LIMITED trading as LAKESIDE HOTEL NO. AI 1143 of 1995 Court: Judicial Registrar Linkenbagh Date: 2 August, 1995 Place: Canberra IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY NO. AI 1143 of 1995 LOUISE ANNE ROBINSON Applicant RYDGES HOTELS LIMITED A.C.N. 050 035 268 TRADING AS LAKESIDE HOTEL Respondent

MINUTES OF ORDER 2 August 1995 The Court orders that: 1. The name of the Respondent be changed to Rydges Hotels Limited A.C.N.050 035 268 trading as Lakeside Hotel 2. The Respondent pay to the Applicant the sum of $ 1665.00 as compensation pursuant to Section 170 EE (3) of the Industrial Relations Act, 1988 NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY NO. AI 1143 of 1995

LOUISE ANNE ROBINSON Applicant RYDGES HOTELS LIMITED A.C.N. 050 035 268 TRADING AS LAKESIDE HOTEL Respondent

JUDICIAL REGISTRAR LINKENBAGH CANBERRA, 2 AUGUST 1995

This is an application under section 170EA of the Industrial Relations Act 1988, in which the applicant seeks a remedy in respect of what she alleges is the unlawful termination of a contract of employment with the respondent. It is common ground between the parties that the respondent placed an advertisement in the paper seeking an employee to perform front office duties at the Lakeside Hotel as a reservations clerk. The applicant applied for the job and was interviewed on 19 April 1995. There was a telephone call from Mr Holt for the respondent to the applicant on 26 April and from that point the evidence of the applicant and the evidence of the respondent diverge. The applicant told the court that Mr Holt in that telephone conversation made an offer of employment to her in terms of "Congratulations you have the job" and that he repeated those words on two occasions during the conversation. The applicant said that Mr Holt requested that she start as soon as possible, that there was conversation about her having to give a weeks notice to her present employer and a discussion about her coming to the hotel to be issued with a uniform prior to her commencement. The applicant told the court that it was agreed that she would come to the hotel on the following Tuesday which was 2 May to see Mr Holt for the purpose of picking up her uniform and that she would commence duty on Wednesday, 3 May. The applicant, consequent upon that conversation, gave notice to her then employer Mr Bilski at Charmers Restaurant and Coffee Lounge. The applicant attended at the hotel on Tuesday, 2 May to see Mr Holt. She cannot recall the time but told the court that her recollection is that there was no specific appointment made for her to be at the hotel on that Tuesday. She said that when she arrived at the hotel Mr Holt was apologetic and informed her that the position which had been offered to her and which she had accepted in the telephone conversation of 26 April was no longer available because it had been filled by way of an internal transfer of another staff member of the hotel. Mr Holt discussed with her the possibility of finding an alternative position for her, and he went away for some time, came back, and then requested that she telephone him later that evening. She did telephone Mr Holt later that evening but he was unavailable then and he rang her back a short time later to inform her that there was no alternative position available for her. The respondent's witness Mr Holt told the court that his purpose in telephoning the applicant on 26 April was to arrange for a second interview because she had been short listed for the job and to arrange for her to meet the General Manager. Mr Holt's evidence about the content of the conversation is quite different to the applicant's recollection and he is quite firm in his view that he did not offer the job to the applicant on 26 April. Mr Holt became aware on 27 April that the position was to be filled internally and he said in his affidavit that he attempted to telephone the applicant between 27 April and 1 May but was unable to contact her and decided to tell her when she came for the interview on 2 May that the job was no longer available to her. Mr Holt told the court that there was an appointment for about 11 o'clock on the Tuesday and that when the applicant came to that appointment he told her that the job was no longer available. There was then a discussion along the lines that the hotel would employ her in the future if a suitable job became available. Mr Holt denied that he tried to find an alternative position for the applicant on 2 May but he admits telephoning her in the evening. His explanation for the telephone call in the evening was that the applicant wanted an answer on that day in relation to alternative employment. This is, unfortunately, a matter in which the court must look at the credibility of the witnesses. I note that Mr Holt produced no records of his contact with the applicant, as one might possibly have expected. I note also that in assessing credibility one way of determining which witness is more credible is to look at factors outside of the immediate evidence. Looking at the consequences and the actions of parties, I find the applicant to be the more credible witness in a comparison of herself and Mr Holt. I say that for various reasons. The applicant gave notice in her current employment on 26 April. That action is consistent with her having been offered the employment with the hotel and with her evidence that she had agreed with Mr Holt that she would start on Wednesday, 3 May. If Mr Holt had offered only a second interview, I think that it is very likely that the applicant would not have given notice in her current employment and I also think that it is likely that she would have made an appointment to see Mr Holt and the General Managerearlier than the following Tuesday, which was six days later. That was the view that she expressed when I asked her a question to that effect when she was giving evidence in reply. Some other factors which are relevant to the issue of credibility are that Mr Holt produced no record of his conversations, no record of his attempt to contact the applicant by telephone between 27 April and 1 May, and that the respondent chose not to bring any evidence of what was described as the short-list of applicants. I also note that Mr Holt's evidence was that the applicant was short-listed for the job. That has to be taken with his evidence that prospective front office staff meet with the General Manager, Mr King, as a standard procedure. Mr Holt's evidence was that the was to be included in the appointment on 2 May and it seems to me that that is consistent with the fact that the applicant was effectively at that time a prospective member of the front office staff. That is consistent with the contract of employment having been formed. Another factor which lends consistency to the version of the events related to the Court by the applicant is the particulars surrounding the telephone call on the evening of 2 May. There was some urgency about that conversation taking place on that evening and in fact it took place quite late in the evening and well outside normal office hours, although perhaps not outside the working hours of staff of a 24 hour hotel. If one accepts Mr Holt's evidence that he left the applicant with the promise which is repeated in the hotel's letter, which is annexed to Mr Holt's affidavit, that is that the hotel would be happy to reconsider her for future employment should a suitable position become available, one would not have expected that there would be a telephone call in the circumstances in which the calls were placed on 2 May. I find that the applicant's call to Mr Holt and his prompt response to that call are consistent with the fact that both Mr Holt and the applicant had an expectation that the applicant was due to start work at the hotel on 3 May. I therefore find with some reluctance, in that I think that Mr Holt has done his best to tell the truth in the proceedings, that the applicant's evidence is more credible and more consistent with her actions, and indeed the actions of Mr Holt. It may well have been that Mr Holt acted prematurely in committing his employer to form a contract of employment with the applicant in the conversation on 26 April, but nevertheless, I find that that offer was made and it was accepted by the applicant on 26 April. The applicant acted to her detriment as a result of the formation of that contract in that she gave notice in her current employment and was subsequently unemployed for a period of five weeks. Since obtaining her new employment with the Ainslie Football Club she has earned less income than she would have earned had her employment with the respondent come to fruition. I find that there was no valid reason for the termination of this employment contract. Another matter to which I should refer is the issue of probation. Mr Bean swore an affidavit on behalf of the respondent in which in paragraph 5 he says: Had the applicant been successful in gaining employment, the employment would have been the subject of a probationary period. In paragraph 4, he says: It is standard procedure for employees to be initially employed on a probationary basis. If this contract of employment were subject to a probationary period, then of course this application would fail because of the provisions of Regulation 30B of the Regulations under the Act. The applicant gave evidence that she cannot recall any conversation about a probationary period although she did say that had the probationary period been imposed it would not have made any difference to her acceptance of the position. In any event, the conditions of Regulation 30B are not satisfied as there is no evidence before me of the determination of any probationary period in advance. The result of these proceedings therefore is that I find that the respondent is in breach of the Act in that there was no valid reason for the termination of this employment. Turning to the matter of a remedy, the applicant has indicated that she is very happy in her current employment and does not, as I understand it, seek any order in the nature of re-instatement to this employment. She was totally without income for five weeks at the rate of $330 gross per week and she did not receive any Social Security benefits during that period. Since then she has earned less than she would have earned had this employment come to fruition. Against that, there is evidence that she could possibly have returned to her employment as a waitress after two weeks from 3 May, so that it may be said that she has not taken up a possible opportunity to mitigate her loss. However, the evidence in relation to that is not strong. I consider it fair in all of the circumstances of this matter that the applicant should be paid by the respondent an amount which is equal to five weeks pay at the rate of $333 per week. Any failure to mitigate the loss during that five weeks is, in my view, more than offset by the fact that her current employment is at a lesser rate. The orders that I make, therefore, in addition to the orders that I made changing the name of the respondent and the address of the applicant are that the respondent pay to the applicant the sum of $1665 by way of compensation pursuant to section 170EE(3) of the Industrial Relations Act 1988.