Adrienne Claire Bright v John William Nicholls and Janice Marcel Nicholls trading as Sail Venture Cruises [1995] IRCA 378

CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - RESIGNATION - CONSTRUCTIVE DISMISSAL - No act of termination at initiative of employer. Industrial Relations Act 1988 ss 170EA Adrienne Claire Bright -v- John William Nicholls and Janice Marcel Nicholls trading as Sail Venture Cruises No. NI 2235 of 1995 COURT: LINKENBAGH JR PLACE: SYDNEY DATE: 17 AUGUST 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI95/2235 BETWEEN: Adrienne Clair BRIGHT Applicant AND: John William NICHOLLS and Janice Marcel NICHOLLS trading as SAIL VENTURE CRUISES Respondent BEFORE: LINKENBAGH JR PLACE: SYDNEY DATE: 17 AUGUST 1995 REASONS FOR JUDGMENT This is an application under section 170EA of the Industrial Relations Act 1988. the applicant was employed from 10 September 1994 until 24 May 1995 as a Cruise Director/Commentator on vessels operated on Sydney Harbour by the respondent. The application was signed by the applicant on 19 May 1995 and was filed on 22 May 1995, whilst the applicant was still employed. The applicant's case is based on the terms of the contract of employment. There is a document dated 19 September 1994 which describes the "Basis of Employment" as "Casual (Permanent)" and the position as "Cruise Director". It also provides: "I accept all company policies & agree to keep up the standards at all times. I understand my agreed rate of pay and all employment & wage conditions as discussed. [ STATE WAGE & EMPLOYMENT AGREEMENT ]:- C.D. - guarantee min 40 hrs (where possible) a week @ $16 per hour." The applicant's evidence is that there were further oral terms to the contract, including a term to the effect that the respondent would enrol her, at its expense, in a "Pre Sea" course, which would qualify her as a deckhand. I find the facts as follows: 1. The applicant worked in excess of 40 hours per week from September 1994 through the summer season. 2. By April 1995 the demand for the services provided by the respondent was considerably reduced, and was likely to fall further with the advent of the winter season, with an upturn in June and July with school student excursions, followed by a low period before the summer trade revived in September. 3. There was a consequent need for the respondent to take steps to ensure that the business ran as economically as was possible. 4. The number of hours of work available for Cruise Directors fell, whilst the number of staff competing for allocation of those hours remained the same. 5. The respondent wished to roster its Cruise Directors to perform other duties, described as "floor and bar" duties, on some shifts, at a lesser rate of pay. That practice increased the overall number of hours of work available for the Cruise Directors. 6. The applicant refused to be rostered for any duty other than under the title "Cruise Director". 7. Each vessel required a crew of Captain and two deckhands. On some shifts, with small passenger numbers the total number of staff on the vessel could be reduced if the Cruise Director or bar person held a Pre Sea Certificate and could "double" as the second deckhand. 8. The applicant did not double as a deckhand because she did not hold a "Pre Sea Certificate". She had expectations that the respondent would enrol her for the appropriate Course, and pay for it. The respondent had made enquires about the Course but no definite arrangements had been finalised, or commitment made, in relation to it. 9. The available hours of work for the applicant were significantly reduced, and restricted further by the factors mentioned in 6 and 8 above. 10. By early May the applicant's hours of work were significantly reduced and on 5 May the respondent gave the applicant a reference so that she could seek additional work with other employers. 11. The applicant worked for the respondent on 6, 11, 14, 15 and 23 May and was rostered for work on 24 May. 12. The applicant worked for one day in May for Matilda Cruises. Her evidence was that that was only for the purpose of putting her on that firm's books so that she could do an internal Pre Sea Course with that firm. No evidence was led to explain why she did not undertake that course, or why she only worked for Matilda Cruises for one day. 13. On 23 May the respondent was notified of the filing of this application. Mr Nicholls spoke to the applicant about the application when the vessel on which she was working that day returned to its berth. The applicant said she was abused for about twenty minutes. I accept Mr Nicholl's evidence that he was annoyed and spoke firmly to her but that he did not abuse or shout at her. 14. The applicant did not attend for duty on 24 May 1995. She telephoned Ms Galluccio in the office and I accept Ms Galluccio's evidence that the applicant tendered her resignation orally and was asked to put that decision in writing. 15. The applicant was not rostered for duty again. 16. The applicant had applied for benefits from the Department of Social Security by 28 May 1995. 17. It was a practice in the industry that staff were multi-skilled and performed other duties as required by the employer in the winter season. Some of my findings of fact necessitated a finding as to the relative credit of the applicant, Mr Nicholls and Ms Galluccio. The applicant impressed me as a competent person who was very self-assured and in no doubt as to her belief that she was an excellent Cruise Director and the best commentator on the pleasure vessels plying the waters of Sydney Harbour. Her demeanour and manner confirmed to me the evidence that she refused to perform duties below the position of Cruise Director and that she had expectations that her employer should organise and pay for her "Pre Sea" Course, and were consistent with her own case that she was entitled to be allotted at least 40 hours of work each week, even if that meant that she was given preference over the other Cruise Directors. My observations of the applicant are supported by Miss Galluccio's evidence that the applicant by May of 1995 was proven inflexible and refused other work when it was offered. Overall, where there was a conflict between the evidence of the applicant and the other witnesses, I prefer the other witnesses. That is not to say that the applicant did not do her best to tell the truth, but that her evidence and her perceptions were coloured by her perceptions of herself. Mr Grant for the applicant submitted that the act of the respondent in providing the reference on 5 May was an act of termination of this employment contract. I do not agree with that submission. The evidence of Mr Nicholls was that the respondent was concerned for the position of the applicant because her hours were being reduced and he was quite happy for her to obtain work elsewhere, whilst continuing to work the hours the respondent could provide for her. His office manager provided the reference and did not discuss its terms with him. There is no evidence of anything being said or done on or about 5 May which could constitute an act of termination of this employment. In fact, the applicant continued to work after 5 May, and Mr Nicholls wishes and intentions were that she still be available to his firm when business picked up, as expected in June/July and in the Spring. Mr Grant further submitted that the reduction in hours of work constituted a breach of the contract of employment such as would constitute a repudiation of the contract. His submission presupposes that because the applicant worked fewer hours than others in May, she was the victim of deliberate acts on the part of the respondent in breach of the contract. The evidence does not support that submission. The submission takes no account of the applicant's refusal to do the alternate duties, or the fact that she did not hold a Pre Sea Certificate. The submission is based on an interpretation of the contract to the effect that the respondent was obliged to make at least 40 hours work available each week. The words "(where possible)" in the contract render the term regarding the 40 hours vague and uncertain, and therefore unenforceable and incapable of breach. I construe the contract as one for permanent casual employment as a Cruise Director, with no obligation on the employer to provide a minimum amount of work. I also find that the respondent did its best to find work for the applicant within the restraints to which I have referred above. Mr. Grant also submitted that the events of 23 and 24 May constituted an act of termination at the initiative of the employer. He argued that Mr. Nicholls conduct on 23 May constituted a basis for constructive dismissal which took effect when the applicant did not attend for work on 24 May . The submission is inconsistent with the applicant's evidence that she expected to be rostered for work after 24 May, which evidence is inconsistent with her applying for Unemployment benefits between 24 and 28 May. The submission is not supported by the facts as I have found them. I therefore find that there was no act of termination of employment at the initiative of the employer and the application must fail. I observe that even if it could be said that there were grounds for an Order in favour of the applicant, any compensation reasonably due would be reduced significantly by the fact of her refusal to perform the alternative duties which were offered to her, her lack of initiative in relation to the Pre Sea Course, and the winter season decline in the availability of work for Cruise Directors. I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Linkenbagh. Associate: Caroline Sternberg Date: 17 August 1995 Solicitor for Applicant: Mr J.R. Grant Edgington Alfonso Respondent: In person