CATCHWORDS INDUSTRIAL LAW - review of judicial registrar's exercise of power - allegation of UNLAWFUL TERMINATION - ABANDONMENT of EMPLOYMENT or DISMISSAL Industrial Relations Act 1988 ss170EA, 377 No. VI 0627R of 1994 CANSEVER YEGEN v DEFAB WEAVERS PTY LTD Marshall J Melbourne 18 September 1995 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 0627R of 1994 BETWEEN: CANSEVER YEGEN Applicant AND: DEFAB WEAVERS PTY LTD Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 18 September 1995 ORDER THE COURT ORDERS THAT: 1. The Order of the Court constituted by Judicial Registrar Tomlinson made on 13 October 1994 is set aside. 2. It is declared that the respondent did not terminate the employment of the applicant. 3. The application under s170EA Industrial Relations Act 1988 is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 0627R of 1994 BETWEEN: CANSEVER YEGEN Applicant AND: DEFAB WEAVERS PTY LTD Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 18 September 1995 REASONS FOR JUDGMENT BACKGROUND On 2 June 1994 the applicant made an application under s170EA Industrial Relations Act 1988 ("the Act") for orders:- (a) declaring the termination of her employment by the respondent to have contravened Division 3 of Part VIA of the Act; (b) requiring the respondent to reinstate her; (c) requiring the respondent to pay compensation to her. The affidavit filed in support of the application alleged that the applicant's employment had been terminated by the respondent on 24 May 1994 and that no reason was given for the dismissal. On 15 June 1994 the respondent filed its notice of appearance through the Australian Chamber of Manufactures ("ACM"). The affidavit was sworn by Mr Robert Auricchio of the ACM. Mr Auricchio stated that he was instructed by the respondent that it did not terminate the applicant's employment but that the applicant had resigned from the respondent. On 24 June 1994, Registrar Agnew ordered that the matter be referred to the Australian Industrial Relations Commission ("the Commission") for conciliation. On 26 July 1994, Commissioner Oldmeadow certified that the Commission had been unable to settle the matter by conciliation. The application was heard by Judicial Registrar Tomlinson on 4 and 5 October 1994. On 13 October 1994, the Judicial Registrar delivered her reasons for judgment. It was found that the applicant had not resigned but in fact had had her employment terminated by the respondent. The Judicial Registrar ordered that $6,000.00 be paid to the applicant by the respondent by way of compensation. The figure was arrived at having regard to the applicant having "sustained loss at the rate of $380.00 per week from 24 May 1994 until the 4 October 1994" (see p7 of the decision). On 28 October 1994, the respondent moved the Court for orders including an order that the exercise of power by the Judicial Registrar be reviewed pursuant to s377 of the Act. The notice of motion was subsequently supported by an affidavit of an articled clerk employed by the respondent's solicitors. The affidavit exhibited the transcript in the proceedings before the Judicial Registrar. On 10 November 1994, Keely J ordered that the matter be placed in the list of cases to be fixed for hearing. No order was sought by the respondent for a stay upon the order of Judicial Registrar Tomlinson concerning compensation. Both parties wrongly assumed that the notice of motion to review the Judicial Registrar's exercise of power acted as a stay upon such order. In any event, it appears that no monetary payment in respect of compensation has been paid to the applicant by the respondent. Due to the extremely heavy workload of the Court in Melbourne the review was unable to be heard until 11 September 1995. On that day, Mr A Lawrence, of counsel, appeared for the applicant and Mr P Burchardt, of counsel, appeared for the respondent. It was common ground between counsel that:- (a) the review was to be conducted as a complete re-hearing where the witnesses would give oral testimony and the transcript of the proceedings before the Judicial Registrar would not be tendered as evidence in the review; (b) my decision in the review would depend entirely on whether I believed the evidence of the applicant or the evidence of the respondent's witnesses as to whether the applicant had resigned or was dismissed; (c) should I believe the applicant, it was appropriate to order that she receive $9,800.00 compensation, constituting six month's remuneration; and (d) should I prefer the evidence called on behalf of the respondent, I should declare that no relevant breach of the Act has occurred. THE EVIDENCE (a) MATTERS NOT IN DISPUTE The respondent is a family company which weaves fabrics for apparel and industrial use. It has about 16 employees. It has operated since 1976. Mr Nunzio De Petro is the Managing Director of the respondent. His spouse, Mrs Susan De Petro, is employed by the respondent as a supervisor. Their son, Mr Guiseppe De Petro is employed by the respondent as the sales and office manager. The applicant was employed by the respondent from July 1988 until 24 May 1994. She was employed as a mender. This involved operating a machine which took imperfections out of fabric. The applicant was trained on the job. She was a competent and valuable employee. There was no criticism of her work performance. If the relevant events of 24 May 1994 had not occurred, the applicant would have continued in employment with the respondent beyond that date. (b) THE FLAT TYRE INCIDENT In mid 1993, the applicant was late for work one morning due to a flat tyre on her vehicle. Because of the flat tyre she was unable to attend work. The applicant alleges that Mr Nunzio De Petro terminated her employment on the telephone when he was told she was unable to come to work. Mr De Petro denies terminating the applicant's employment. In any event it appears that the applicant believed that she had been terminated. She telephoned her spouse to come home from his job and attend with her at the respondent's premises. Mr Yegen borrowed a work mate's vehicle and left his work to collect the applicant and take her to the respondent's premises. A discussion ensued between Mr De Petro and the Yegens. Mrs De Petro. subsequently became involved in the discussion. At the conclusion of the discussion, it was clear that the applicant was still in the employ of the respondent. (c) ALTERATION OF HOURS Until February 1994, the applicant's ordinary hours of work were from 7.00 a.m. until 3.30 p.m., Monday to Thursday, and 7.00 a.m. until 1.30 p.m. on Fridays, with a half hour lunch break at 12.30 p.m. The applicant requested a change in her starting time to allow her to take her children to school. She was confident that the respondent would accommodate her as it was a busy time. She told the respondent that she may have to cease working for the respondent if her hours were not changed. The respondent agreed to change her hours. As a result she commenced work at 9.00 a.m. and concluded work two hours later than her previous finishing times. (d) TIME OFF FOR MEDICAL REASONS There was a dispute on the evidence as to whether the respondent forced the applicant to return to work early after an operation and as to whether the respondent failed to allow the applicant time off work to attend medical appointments. I do not find it necessary to resolve this conflict. I do not believe that the alleged approach of the respondent, if I accept the applicant's evidence on this issue, was indicative of some generally hostile disposition towards the applicant. This is so especially when one considers its approach to her request for a delayed starting time for work from February 1994. (e) THE EVENTS OF 23 AND 24 MAY 1994 (i) 23 May 1994 - Mrs Yegen The applicant gave evidence that she was seated in the lunch room on this day having her lunch when a truck arrived at the respondent's premises and backed into a loading bay. She believed that the truck had passed very close to her parked vehicle so she stood up to try to obtain a better view of the truck as it reversed. The applicant's evidence was that Mr De Petro (Senior) was in the lunch room when the truck reversed into the loading bay. She said that as she stood up Mrs De Petro told her to sit down and said "what are you scared for". The applicant said that she noticed, on leaving work that day, that a side mirror on her car had been scratched by the truck. She mentioned the damage to Mr Yegen when she arrived home. Mr De Petro (Senior) denies being in the lunch room when the truck was reversing. His evidence was that he was outside the lunchroom guiding the truck in the loading bay and that he did not observe the truck come into contact with the applicant's car. (ii) 24 May 1994 - Mrs Yegen The applicant said that she attended at work at 9.00 a.m. on this day and that at about 10.00 a.m. Mrs De Petro arrived at work. The applicant said that on Mrs De Petro's arrival she went over to Mrs De Petro and had a conversation with her. At the time there were many machines in operation at the respondent's premises and there was a considerable amount of noise associated with the operation of the machines. The applicant said that when Mrs De Petro arrived, the applicant stopped her machine, took off her ear muffs and stood next to Mrs De Petro. She told Mrs De Petro about the damage to the mirror. She alleges that Mrs De Petro said to her "Bloody shit. You are shit and your car is shit. Go out. The door is open. Don't go through the office. Go straight away. Go!". She gave evidence to the effect that Mrs De Petro said a lot of other things she did not understand having regard to her limited command of the English language. The applicant maintains that she told Mrs De Petro not to get upset and that "if you don't like me, you don't like me". She claimed that Mrs De Petro blocked her entry into the office so that she would not go in there. The applicant said she believed she had been dismissed. She said she felt sad and was crying. She denies having any conversation with Mr De Petro (Senior) or his son on that day. She denies resigning her employment. She said that she enjoyed working for the respondent. She had no contact with the respondent after that day except for the receipt of a letter in which was enclosed a cheque representing accrued annual leave up to 24 May 1994. The letter from the respondent was dated 24 May 1994 and was in the following terms: "Dear Mrs. Yegen, Re: Verbal Resignation Due to your verbal resignation on 24 May 1994, we forward amount owing to you as your final payment as employee of Defab Weavers Pty. Ltd. We hereby accept your resignation effective immediately. We are saddened by your decision to so suddenly resign, however we wish you the best in your future endeavours. With Best Regards, Mr. N. De Petro Managing Director" Under cross examination, the applicant said that she was not upset on the morning of 24 May 1994, but saddened. When asked why she did not attend later in the day at the respondent's premises with Mr Yegen to try to get her job back as she had done over the flat tyre incident, she said that it was different this time as she had been yelled and shouted at. (iii) Mrs De Petro Mrs De Petro said that the applicant told her that the truck had scratched her car. Mrs De Petro gave evidence that she told the applicant that it could not have happened as her husband was directing the truck driver. She says that she asked the applicant if the applicant was on "a money making scheme". This was a reference to an alleged previous incident where the applicant's car had been damaged by a fellow employee. Mrs De Petro says that the applicant then became upset, collected her things and walked off. She says that she tried to calm her down and said that "If you walk out you are going to lose your job". She also said that she told the applicant to go to the office before she left to tell Mr De Petro (Senior) what her intentions were. (iv) Mr De Petro (Senior) Mr De Petro (Senior) said that he saw the applicant leave the respondent's premises to go to her car. She appeared to be leaving. He was on the telephone at the time. He asked his son to see what the applicant was doing. He said that he eventually came to her vehicle while she was talking to his son. He said that the applicant told him that she had "had enough of this place" and was going. He said that he then telephoned the ACM "to see where I stood". He spoke to Mr Auricchio and on his advice wrote the letter to the applicant referred to above and made out a cheque to her for her accrued annual leave payment. He said that he does "the hiring and firing" and at no time fired the applicant. He said that he did not want her to leave. (v) Mr De Petro (Junior) Mr Guiseppe De Petro gave the following evidence: 1. He heard a noise outside the office. 2. He went outside and saw the applicant in her vehicle. 3. He asked her to open the front passenger side door. 4. He had a discussion with her and asked why she was leaving. 5. The applicant replied "I want to leave" and that "I've had enough of this place". 6. At this time his father was near the applicant's vehicle. 7. He thought the ACM should be contacted and his father proceeded to do so that afternoon. 8. He contacts the ACM on any issue on which the respondent requires clarification such as award entitlements. (vi) Ms Nedanovski Menka Nedanovski is an employee of the respondent. She was present at the respondent's premises on 24 May 1995. On that day, in the morning, she saw the applicant talking to Mrs De Petro. She said that the applicant was upset. At one stage the applicant and Mrs De Petro came within one metre of Ms Nedanovski's machine. Although machines were operating in the factory, and although she had ear muffs on, Ms Nedanovski was able to hear that part of the conversation that occurred one metre away from her. Given that the applicant's machine was near to Ms Nedanovski and had been switched off by the applicant, it is not improbable that Ms Nedanovski heard what she said she heard. Her evidence was that Mrs De Petro said "you are not going" and the applicant said "I'm going". Mrs De Petro said "Before you go see Nunzio". The applicant then said "I don't care. I'm going. I don't want this job". The applicant then took her bag and left work. She said that Mrs De Petro was not upset. (vii) Mr di Bernadetto Paul di Bernadetto is a former employee of the respondent. He was present on 24 May 1995. He saw the applicant and Mrs De Petro have a conversation on that morning. He saw the applicant grab her bag and walk out. He said that he saw the applicant in her car with Mr De Petro and his son outside the car, and beside it, talking to the applicant. CONCLUSION It is my view of the evidence that the respondent's version of the critical facts is more inherently probable than that of the applicant. The evidence before the Court on the review was substantially the evidence that was given before the Judicial Registrar. However, the Court on the review has had the opportunity to observe all the witnesses give their evidence. In her conclusions the Judicial Registrar said at p6 of her decision: "I am of the view that if the applicant had simply resigned the respondent would not have found the need to telephone the Chamber of Manufacturers. There would have been no need for the call to have been placed had that been the case. Evidence was given on behalf of the respondent that no attempt was made to contact the applicant after she left the premises on 24 May 1994 even though it had been stated she was found to be a good employee. That course of conduct in my view is consistent with unlawful termination." I draw no adverse inference at all towards the respondent as a result of its contacting the ACM. The respondent had contacted the ACM on various matters to do with award entitlements. It is not surprising that an employer would wish to check its obligations to an employee who has resigned. It should not be assumed that the respondent would contact ACM to seek its assistance in conjuring up some story to defeat any claim that the applicant may make against it. The ACM is a well known competent employer organisation which frequently gives advice on award related matters to employers. Mr Auricchio is an experienced industrial practitioner who is frequently called upon to give such advice as he did on this occasion. I also draw no adverse inference against the respondent for its failure to contact the applicant to persuade her to return to work. The respondent maintains that it sought to so persuade her on the morning in question. If I accept, as I do, the respondent's version of the manner in which the applicant left its premises, it is not surprising that it did not beg her to come back to work later that day or subsequently. A critical factor that leads me to view more favourably the evidence of the respondent than that of the applicant, is the difference in approach of the applicant to the circumstances of her alleged dismissal over the flat tyre incident and her alleged dismissal on 24 May 1994. During the flat tyre incident she enlisted the support of Mr Yegen to plead her case to stay in employment after an apparently harsh act, in her view, of the respondent. On 24 May 1994 no such attempt was made to enlist the support of Mr Yegen to retrieve her job. I believe this was so because the applicant was not dismissed but abandoned her employment and knew that the circumstances which confronted her when she returned home on that day were primarily of her own making, unlike the "flat tyre incident". I was impressed with the evidence of Ms Nedanovski. In my view, she honestly recounted the critical conversation which she was able to hear. What she heard is largely consistent with the evidence of Mrs De Petro. The evidence of Guiseppe De Petro and Mr di Bernadetto about the applicant being spoken to by the male De Petros outside the factory supports the evidence of Mr De Petro (Senior) and conflicts with that of the applicant. The evidence of the witnesses for the respondent is broadly consistent as a whole and supports its version of the facts. The evidence of the applicant is starkly at odds with most of the critical evidence of the respondent. It would have to be a clever conspiracy of the most evil kind for the respondent to have concocted its version of the facts. Having regard to the manner in which its witnesses gave their evidence, I totally discount the conspiracy theory. In fairness to Mr Lawrence it should be observed that no conspiracy theory submission was advanced by him. The applicant may honestly believe that her version of the facts is the correct one. This may, no doubt, stem from what was a very stressful morning for her in which a confrontation occurred with her supervisor. However, the Court must view the evidence as a whole and if it believes that the respondent's version of the facts is inherently more probable it will accept it. I do so in this case. It was conceded by Mr Lawrence that the applicant carried the onus of convincing the Court that her employment was terminated. In my view she had failed to do so on a balance of probabilities. The order of the Court is as follows:- 1. The Order of the Court constituted by Judicial Registrar Tomlinson made on 13 October 1994 is set aside. 2. It is declared that the respondent did not terminate the employment of the applicant. 3. The application under s170EA Industrial Relations Act 1988 is dismissed I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall. Associate: Date: 18 September 1995 Counsel for the Applicant: Mr A Lawrence Solicitor for the Applicant: Maurice Blackburn & Co. Counsel for the Respondent: Mr P Burchardt Solicitor for the Respondent: Phillips Fox Date of hearing: 11 September 1995 Date of judgment: 18 September 1995