Natalie Eyre-Walker v Sunearth Pty Ltd t/as 2468 Family Restaurant [1995] IRCA 389

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1019 of 1995 B E T W E E N: Natalie EYRE-WALKER Applicant A N D SUNEARTH PTY LTD t/as 2468 FAMILY RESTAURANT Respondent REASONS FOR DECISION 18 August 1995 PARKINSON JR This is a decision in relation to an application made pursuant to S170EA of the Industrial Relations Act 1988. The applicant was employed at the respondent's restaurant as a food and beverage attendant. She was employed in June 1994 and her employment was terminated summarily and without notice on or about 28 November 1994. There was an issue in the proceeding whether there had been an abandonment of the employment. The circumstances of the termination and my findings of fact in this regard will be discussed later in this decision however, by reason of those factual findings, I am not satisfied that the applicant abandoned her employment. Therefore, I am satisfied that the termination of the employment was a termination at the initiative of the employer of the type contemplated in S170EA of the Act. Further, there was a preliminary matter as to the jurisdiction of the court argued before me on 10 July 1995. My reasons for decision in that aspect of the proceeding are contained in the written judgment dated 11 July 1995. In so far as is relevant I have adopted those findings for the purposes of this decision, however I do not repeat them. It is appropriate to refer to the background to the termination in this matter and I turn now to do so. Background and findings of fact The applicant was responsible for the buffet operations of the respondent and in the course of her duties was responsible to the restaurant manager, Ms Gentile. As part of her duties the applicant prepared the rosters for that section of the restaurant in consultation with, and subject to the approval of, the manager. The applicant worked various shifts in the restaurant. The evidence was that if time off was required, or if employees sought to alter the hours or days for which they had been rostered, they were required to obtain permission to do so and permission was usually granted subject to the employee arranging a suitable replacement for the roster. The evidence was that in or around 19 November 1994 the applicant sought and obtained permission to be absent from work on unpaid leave for some days, due to pressing personal reasons. This I will refer to as the first absence. This absence was approved by the manger, subject to the applicant ensuring that she arranged a replacement for her rostered shifts. There was a discrepancy between the evidence of the applicant and Ms Gentile as to the date at which the permission for the first absence was sought. The applicant's evidence was that it occurred on Saturday 19 November 1994. Ms Gentile's firm evidence was that the applicant did not work on that particular Saturday evening and that it occurred on the previous Thursday evening. The records of the respondent, subsequently produced, confirmed the applicant's evidence in this regard. The evidence was that discussion was held as to the time off required by the applicant. Ms Gentile's evidence was that in the course of this discussion she had approved the absence, subject to the applicant returning in time for a meeting which, although scheduled to occur during the absence, was rescheduled to accommodate the applicant's absence. The applicant's evidence was that this conversation as to the necessity to attend the meeting did not occur. The evidence in the proceedings was generally unsatisfactory, and as to the dates of the absences, particularly so. From what I have been able to ascertain from the evidence, the applicant was on approved unpaid leave between Sunday 20 November and Wednesday 23 November 1994 inclusive. The Sunday at least was in any event the applicant's scheduled day off. The applicant was scheduled to return from leave on Thursday 24 November. This she did not do. Instead of returning, her evidence was that she called the restaurant on the evening of Wednesday 23 November and, speaking to a person she described as the "acting manager", requested an additional period of leave without pay. This person was identified by the parties as a Ms Maria Maher. The applicant says that approval was granted on similar terms to the first absence. The applicant's evidence was that she had already taken steps to organise a replacement employee. Her evidence was that she telephoned the home of a work colleague and left a message with the sister of that person, asking her to work on her behalf. The respondent disputed that any permission to extend the leave had been granted. Such evidence as there was in this regard on behalf of the respondent was by way of Ms Gentile, who informed the court that she was never told of such a request. However, Ms Maria Maher was not called to give evidence in the proceedings and no attempt was apparently made to do so. In my view it rested with the respondent to call such evidence. There was no direct evidence, nor even evidence of a hearsay nature of any clarity or precision, to suggest that the situation was other than as described by the applicant. In my view the case of the respondent, save in cross-examination of the applicant, studiously avoided this matter. The respondent submitted that the evidence of the applicant as to the fact of the telephone conversation with Ms Maher and the arrangements made for a replacement employee were issues of credit. In this regard the respondent relied upon its cross-examination of the applicant in relation to various alleged overpayments to her of Social Security benefits during the course of her employment, and an incident arising early in the employment in relation to a roster. The applicant acknowledged in cross-examination that she had not taken various steps to advise the relevant department of her employment status or earnings, and that she had received payments during the course of her employment with the respondent. It should be noted that, contrary to the written submissions of counsel for the respondent, there is no evidence before this court to suggest that the applicant has committed any offence pursuant to the Crimes Act 1914 (Cth) in this regard nor, contrary to his submission, was there an admission in respect of the alleged offence of imposition pursuant to that Act. Further, as to the determination of credit, in the face of evidence to contradict the evidence of the applicant it might well be necessary for the court to determine the matter on the basis of findings as to the credit of various witnesses. However, in this matter there was no evidence of any reliability called to contradict that of the applicant, notwithstanding the evidence of the applicant that the person in question, Ms Maher, had been present and in the company of the respondent in attending the conciliation conference convened pursuant to S170EC of the Act. To the contrary and for the reasons discussed earlier, the only substantive evidence before the court is that of the applicant. It is not necessary for such a decision to be made as to credit in relation to this aspect of the evidence regarding the conversation with Ms Maher or the arrangements for the replacement employee. S170DE(1) The respondent has the onus of proving that it had valid reason for the termination of the employment. It was submitted on behalf of the respondent that not only did the second absence constitute valid reason for the termination of the employment, but further that there was an abandonment by the applicant in that she absented herself from work and failed to return to work from the leave granted. I am not satisfied that the applicant failed to obtain permission for the absence. It is clear on the evidence that no steps were taken by the respondent to ascertain the intentions of the applicant in respect of the ongoing employment, and the applicant's subsequent conduct in ringing the restaurant immediately prior to returning from leave is not consistent with an abandonment of the employment. In relation to these matters, I am not satisfied that the respondent had valid reason to terminate the applicant's employment and, as earlier stated, I am not satisfied there was an abandonment of employment. However, there are two further aspects to the circumstances of the second absence which are relied upon by the respondent. The first is the failure to attend at the meeting scheduled by Ms Gentile. The second arises out of an alleged failure in the applicant to arrange a replacement employee for her roster during the second absence. As to the first matter, it was alleged by the respondent that the applicant was fully aware of the meeting and its scheduling, and that she knew of the requirement to attend. The applicant denies that she was aware that the meeting was to be held on any particular date and denies that any conversation took place between her and Ms Gentile in this regard. I do not accept the evidence of Ms Gentile as to the conversation regarding the meeting of staff which the applicant was allegedly required to attend. This is because I am not satisfied that this witness had as accurate and full a memory of events and conversations as she forcefully professed, particularly having regard to the established inaccuracy in that part of her testimony which dealt directly with the circumstances of the alleged conversation. I prefer the applicant's evidence to that of Ms Gentile. As to the second matter, once again the evidence of the parties is in direct conflict, and the paucity of evidence as to the dates of absence creates some difficulties. Evidence was given by Ms Gentile that arrangements had to be made by her at short notice for a replacement to cover the applicant's absence on the first night of the second absence, and that these arrangements were continued for the duration. In this regard Ms Thurley gave evidence of being called at late notice to work in the absence of the applicant, and on her roster. Notwithstanding that I have serious concerns as to the accuracy of the evidence given by Ms Gentile, having regard to the evidence of Ms Thurley I am satisfied that the applicant had not made adequate or sufficient arrangements to cover her absence during the period of the second absence. In this finding I have also had regard to the applicant's own evidence that she had not directly spoken to the person whom she was seeking to work on her behalf and, on her evidence, that she informed the respondent's acting manager that she had "organised a replacement employee". Further, the applicant did not take any steps to ensure that the message had been received or that the arrangements were acceptable, nor did she take such steps to check in any respect until immediately before she was to return to work. I am satisfied that the applicant had failed to take appropriate steps to organise a replacement employee and that in so doing had interfered with the proper running of the respondent's restaurant. In this regard I am satisfied that the respondent had a valid reason related to the conduct of the applicant for the termination of the employment. I turn now to consider the remaining aspects of this application arising pursuant to the application of S170DE(2) and S170DC of the Act. S170DC & S170DE(2) The applicant's employment was terminated in the course of a telephone conversation between the applicant and Ms Gentile on or about 28 November 1994. It is not in contest that there was little said in the course of that conversation save for the applicant being advised that there was no longer a job for her for reasons including because she had failed to attend her shift. In the course of the conversation the applicant was given no opportunity to explain the circumstances of her absence or to explain that she had sought permission, nor was she given any opportunity to explain arrangements she had sought to make, however inadequate. It appears that the employment was terminated without any enquiries having been made by Ms Gentile of her own staff as to the whereabouts of the applicant either during the period of the absence or prior to terminating the employment. In short, the applicant was given no opportunity to reply to any allegations in relation to her conduct. There was a failure in the respondent to comply with the provisions of S170DC of the Act. Nor was the applicant given any opportunity to be heard in relation to the penalty of dismissal which was imposed. This is notwithstanding that the respondent was aware of various personal matters impacting upon the applicant's domestic circumstances at that time. These matters in my view constitute the termination of the employment as harsh and unjust in the sense contemplated by S170DE(2) of the Act. Further, I am satisfied that the termination of the employment by reason of the failure to arrange a replacement employee was harsh and unreasonable in circumstances where the evidence was that the applicant had never taken leave before and had never failed to attend on a shift, and in the face of evidence that the applicant was an extremely hard worker on behalf of the respondent. No consideration of these factors occurred when the decision to terminate the employment was made, and in my view the imposition of such an extreme penalty in such circumstances was harsh and unreasonable. I turn now to consider the question of remedy. Remedy - S170EE Counsel for both the applicant and the respondent submitted that an order for reinstatement of the applicant would be impracticable. The basis upon which this was said for the applicant included that the applicant was pregnant. This submission is extraordinary on it face, but particularly so in circumstances where the very legislation under which the remedy arises prohibits termination of employment for the reasons of sex or pregnancy. I reject this submission in the context put in these proceedings. The only basis upon which there may be some relevance of the pregnancy to the question of remedy would be in circumstances where, as a matter of election, the applicant indicated that she would not have continued to work consequent upon her pregnancy, or after the birth of her child. In such circumstances this evidence would have a negative consequence for the amount of compensation awarded because the reasonably anticipated future earnings of the applicant, a relevant consideration in determining the quantum of compensation, would be directly affected as a consequence of the choice not to engage in paid employment made by the applicant. Despite the submissions, this was not the evidence in these proceedings. I further reject the submission of the respondent's counsel that an order for reinstatement would be impracticable because of the financial circumstances of the respondent, when this submission is made with no objective evidence of this being the case. However, the evidence in this matter suggests that the applicant no longer resides in Melbourne or in a location sufficiently proximate to the respondent's business to enable her to attend for work on a daily basis. The submissions of both parties are in accord in this respect. Having regard to this factor, I am satisfied that an order for reinstatement would be impracticable from the perspective of the applicant. I turn therefore to consider the issue of the appropriate amount of compensation to be ordered. In this matter the applicant's employment was terminated summarily. There was no serious misconduct such as to warrant summary termination in the sense contemplated by S170DB(1)(b) of the Act. Pursuant to S170DB(2) the applicant was entitled to one weeks notice of termination of employment or payment in lieu thereof. I am satisfied on the evidence that the applicant's employment was likely to have continued for a period beyond that of the notice period. I am not however satisfied that it was likely to continue for an extensive period having regard to the relations between the parties and in particular the poor relationship between the applicant and her manager Ms Gentile, for which the applicant was in my view equally blameworthy. In my view the appropriate amount of compensation in the circumstances is the equivalent of four weeks wages which I accept on the evidence was $ 421.65 per week. In addition, the applicant is entitled to damages in the sum of $421.65 as representing the amount of notice to which she was entitled at termination of the employment. The orders of the court shall be: 1. That the respondent pay to the applicant the sum of $ 1,686.60 in compensation. 2. That the respondent pay to the applicant the sum of $421.65 in damages. 3. That such amounts be paid within 14 days of the date of this order. I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson. Associate: Dated: 18 August 1995 Solicitors for the applicant: Palmer Stevens & Rennick Counsel appearing for the applicant: Mr L Carter Solicitors for the respondent: Hercules Constan Counsel appearing for the respondent: Mr P McDermott Dates of hearing: 10 & 11 July 1995 Written submissions filed: 3 August 1995 Date of judgment: 18 August 1995