Rosalba Nicolini & ALHMWU v The Windsor Hotel [1995] IRCA 523

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1643 of 1995 B E T W E E N : ROSALBA NICOLINI & ALHMWU Applicants AND THE WINDSOR HOTEL Respondent Before: Judicial Registrar Fleming Place: Melbourne Date: 27 September 1994 REASONS FOR JUDGMENT Findings of Fact The Applicant was employed as a Banquet Secretary on 27 December 1989. The position was described in the advertisement she answered as: "BANQUET SECRETARY This is an excellent opportunity to work in a grand prestigious hotel and be part of the Banqueting team. First class typing skills and excellent telephone manner are essential. The successful applicant will be organised and methodical and able to communicate well with the guests, management and peers. The Windsor offers excellent employment conditions and career prospects. If you wish to join our team, please apply in writing to: Staff Development Manager 103 Spring Street, Melbourne by 1st December." (Exhibit 5). In or about 1992 the Applicant's position was re-titled at her own instigation, Banquet Co-ordinator. The change in the title was reflective of the change in her position which now focused more on promoting the Respondent's banquet facilities and less on secretarial duties. The Applicant's duties were 90% administrative. In September 1994 it was known that the Hard Rock Cafe would open at the Windsor Hotel. Memoranda were sent to staff. The Applicant knew there would be less work in her department as some of the function rooms would disappear. On 29 December 1994 the Applicant was called to a meeting. Mrs Nicolini was due to take 3 weeks annual leave in early January 1995. Present at the meeting were the General Manager Mr Picairn, the Human Resources Manager Mrs Allaway, the Food and Beverage Manager Mr Colbowen and the Applicant. The Applicant was informed that her position as Banquet Co-ordinator would no longer be available to her after her holidays and that another position would be made available for her. She was told that the Food and Beverage Department and the Banquet Department would be amalgamated and there would only be a need for one Secretary. Mrs Nicolini was asked to take an extra 2 weeks leave. On 29 December 1995 Mrs Nicolini had no idea of the position she would be offered. On 25 January 1994 Mrs Nicolini wrote to Mrs Allaway. The material parts of this letter are as follows: "Sally, I would really appreciate it if you could give me an idea of where I will be working, and what my position will entail when I return from my leave on the 13th of February 1995." (Exhibit 7). Mrs Allaway, the Human Resources Manager, responded and advised Mrs Nicolini that a position had come up and that she wanted to speak to her. Mrs Allaway and Mrs Nicolini met on 1 February 1995. Mrs Nicolini was given a copy of the job description for Guest Relations (Exhibit 3). The hours were to be 12 noon to 9 p.m. Mrs Nicolini's evidence was that she was distraught and her evidence was that she could not work those hours. Mrs Allaway stated that the job description was open for discussion and the Applicant left saying she would think about it. On 9 February there was a further meeting. The Applicant, Mrs Allaway and Mr Coates from the Union were present. Mr Coates raised the issue of a redundancy but Mrs Allaway rejected this on the basis of hotel policy. Mrs Allaway assured Mrs Nicolini that the Respondent was not trying to get rid of her and that she was valued and that Mrs Allaway wanted her to continue working with the Respondent. At the meeting a request was made for further leave without pay and Mrs Allaway acceded to this request (Exhibit A) and leave was extended until 17 February 1995. On 16 February 1995 there was a further meeting between the Applicant, Mrs Allaway and Mr Coates. At this meeting Mrs Allaway agreed to change the hours as Guest Relations Co-ordinator from 12pm - 9pm to 9am - 6pm which were the hours she was working as a Banquet Co-ordinator. Mrs Allaway also advised Mrs Nicolini that some flexibility in hours would be required of her as her duties involved dealing with guests. Mrs Nicolini believed the position offered her was beneath her skills and that she would be unchallenged and she rejected the position. Mrs Nicolini said that she wanted her old position back and that she did not want this new position. Mr Coates sought further leave without pay and this was granted. In its letter of 17 February 1995 (Exhibit 9), the Respondent advised the Applicant to return to work on 20 February 1995. The application before this Court was filed on 16 February 1995. The Applicant did not return to work on 20 February 1995 and, on 23 February 1995 (Exhibit 10), the Respondent sent a letter requesting the Applicant to return to work on 24 February 1995. The Applicant failed to attend at work on that date and a further letter was sent on 27 February 1995 requesting the Respondent to return to work on 28 February 1995 (Exhibit 11). On 28 February 1995 a final letter was sent (Exhibit 12) advising that the Respondent had terminated the employment of the Applicant and a cheque was enclosed representing notice and accrued entitlements in the amount of $1,927. Is there a termination? I find that the termination of employment occurred as a result of the act of the employer (APESMA and Skilled Engineering 132 ALR 471 Gray J at 482, Grout & Gunnedah Shire Council NI 397 of 1994). I am satisfied that the Respondent has terminated the employment of Mrs Nicolini by repudiating her contract of employment. The repudiation occurred as a result of her position as Banquet Co-ordinator disappearing and the terminated occurred on 29 December when she was advised that her position was no longer available to her. In Quinn & Jack Chia (Australia) Limited 1992 1 VR Ashley J at 567 held "it is a question of fact as to whether a change in duties amounts to a termination of the contract of employment with a new contract supplanting the old contract of employment or alternatively, whether it amounts to a variation of the original contract." I accept the submission of Mr Tee who stated the fact that some alternative position was offered does not alter the fact that it was the employer that ended the relationship. The offer of a position as a Guest Relations Co-ordinator was a change in the Applicant's situation as to be "exceptional, far reaching and not within the original contemplation of the parties and not comprehended by the contract initially made between them and it gave rise to a new contract replacing the old contract rather than merely a variation of the old contract" (Ashley J at page 567). Valid Reason Was the termination for a valid reason based on the operational requirements of the Respondent pursuant to s170DE(1) of the Act? It is clear that the position of Banquet Co-ordinator disappeared as a result of the creation of the Hard Rock Cafe. I accept the submission of Mr Blanden that the Respondent had to re-structure its operations to meet the new requirements of the Hard Rock Cafe and that this re-structure was never challenged by the Applicant. Mrs Puitz was selected ahead of Mrs Nicolini to continue in the re-structured and combined Department of Food and Beveridge and Banquet Co-ordinator and I am satisfied that she was selected ahead of Mrs Nicolini on the basis of the following criteria: 1. Seniority - Mrs Puitz commenced employment in 1985 (Mrs Nicolini commenced in December 1989). 2. Adaptability in relation to the computer system. 3. The relationship between Mrs Nicolini and her immediate boss was strained. I am satisfied that Ms Puitz's appointment to the position was reasonable in all the circumstances. Harsh, unjust and unreasonable The Respondent offered the Applicant a position on the same terms and conditions that she was already employed. The position of Guest Relations Co-ordinator was 50% secretarial with a focus on guests rather than functions. The Applicant was offered this position and the Applicant was afforded extra leave without pay to consider her position. The Applicant met with Mrs Allaway on three occasions to discuss the position. On two of those occasions Mrs Nicolini had the benefit of union representation. I accept the evidence of Mrs Nicolini that she had a career path in banquet management planned. However, I am satisfied that the Respondent has done all it can given the circumstances to assist the Applicant. I am satisfied that Mrs Allaway was genuine in her desire for Mrs Nicolini to return to work in the new position and I am satisfied that from an objective view point, the Respondent has not acted in a manner that can be described as harsh, unjust or unreasonable. Section 170DB The Applicant is entitled to 4 weeks notice pursuant to s170DB. The letter of termination (Exhibit 12) annexes a termination payment of $1,927 and states that that pay out includes notice and accrued entitlements. There is no evidence before me as to the breakdown of this pay out, so I order that the Respondent pay to the Applicant 4 weeks notice. MINUTES OF ORDERS THE COURT ORDERS: 1. The Respondent pay to the Applicant the amount of 4 weeks pay in lieu of notice taking into account if any notice has already been paid and what that notice is. 2. Payment in relation to notice be made within 21 days. 3. The application is otherwise dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming. Associate: Dated: 27 September 1995 Representative for the Applicant: ALHMWU (Liquor & Hospitality Division) Counsel for the Applicant: Mr B. Tee Solicitor for the Respondent: Freehill Hollingdale & Page Counsel for the Respondent: Mr C. Blanden Date of hearing: 3 July 1995 Date of judgment: 27 September 1995