Julie-Anne de Jong v J & M Waste Pty Limited, J & M Metals Pty Limited [1995] IRCA 578

CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - PROCEDURAL FAIRNESS - UNJUST - COMPENSATION. Industrial Relations Act 1988ss 170DC, 170DE, 170EA, 170EE Nicolson v Heaven and Earth Gallery Pty Limited(1994)126 ALR 233 Aitken -v- CMTSWUI(WI 328 of 1995, unreported, Lee J, 7 August 1995) JULIE-ANNE de JONG -v- J & M WASTE PTY LIMITED, J & M METALS PTY LIMITED No. NI 2315 of 1995 COURT: PATCH JR PLACE: SYDNEY DATE: 25 & 26 SEPTEMBER 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI 2315 of 1995 BETWEEN: Julie-Anne de JONG Applicant AND: J & M Metals Pty Limited Respondent REASONS FOR JUDGMENT (Delivered ex tempore - revised from judgment) 25 & 26 SEPTEMBER 1995 PATCH JR This is an application under section 170EA of the Industrial Relations Act ("The Act"). The applicant initially sought reinstatement and, in lieu of reinstatement, compensation. However, in submissions her counsel has conceded that reinstatement is impracticable. Counsel for the respondent agrees with that, as do I. The reasons why I find that reinstatement is impracticable is because it would be too personally difficult for the applicant to return to a workplace from which she was dismissed in the circumstances which occurred, and it would also result in discord and disharmony within the workplace because the respondent company is a relatively small family company. Was the termination of the applicant's employment a breach of section 170DC of the Act? The applicant's employment was summarily terminated. She was present at a meeting with two directors of the company, Mr William and Mr Anthony Kamper, on 23 May 1995 at which she was informed that her employment was to be terminated. That is common ground. She was given no warning as to the possibility that her employment would be terminated before that meeting, nor was she given any reasons in respect of which her employment might possibly be terminated prior to that meeting. Section 170DC of the Act is as follows: "An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made; or (b) the employer could not reasonably be expected to give the employee that opportunity. In order for an employee to in fact have "the opportunity defend himself or herself against ............ allegations", those allegations must be made before the termination of employment occurs, and in such a way and time frame so as to enable the employee to respond to those allegations. See Nicolson v Heaven and Earth Galleries (1994) 126 ALR 233. In my opinion the applicant was not given an opportunity to respond to any allegations and the allegations were not mentioned to her except in virtually the same sentences as used to terminate her employment. To put it another way, using a well-known Australian expression, she was not given "a fair go." For that reason alone the termination of her employment was unlawful. Was the termination of the applicant's employment harsh, unjust or unreasonable? In my opinion, for precisely the same reasons as the termination of the applicant's employment was a breach of section 170DC of the Act, the termination of her employment was "unjust" within the meaning of section 170DE(2) of the Act. It is unjust to terminate an employee's employment in a summary way without giving him or her the opportunity to have a say about what is to happen. Therefore the termination of her employment is deemed to be not for a valid reason, and unlawful on that basis as well. Remedy. For the reasons that I have stated above, in my opinion it would be impracticable to order the reinstatement of the applicant. I therefore move to the question of compensation. The applicant has genuinely attempted to find new employment. She has been to the Commonwealth Employment Service; she has tried to get interviews; she has telephoned around to former employers; she has gone to the yellow pages and looked up prospective employers in her former industry, retail sales. These efforts have been to no avail and she remains unemployed. On the other hand, the applicant has a good work history and has been able to be in regular employment in the past. Nonetheless, in my view, in view of the fact that on this occasion she has tried hard to get employment and has been unsuccessful, it is likely that she will remain unemployed for at least the new few months. I note here that she is due to have a baby in December, but I do not regard that fact as relevant to the quantum of compensation which I might order, if only for the reason that the expected date of birth of the baby is more than a month after the end of a period of six months following the termination of her employment. Another factor which I take into account on the question of the quantum of compensation to be awarded under section 170EE(2) of the Act is the fact that the applicant has suffered some hurt feelings and distress and loss of confidence as a result of the termination of her employment. See Aitken v CMTSWUI (WI 328 of 1995, Unreported, Lee J, 7 August 1995). I do not regard that head of damages as being capable of sustaining any large amount of compensation but I do take it into account. In my opinion, on the question of the quantum of compensation, it more or less balances out the possibility that, because of her previous work history, the applicant might get employment in the near future. So in, all the circumstances, because the applicant is unemployed, and unemployed as a direct result of the unlawful termination of her employment, and because she is likely to remain, in my opinion, unemployed until she has her baby, in my opinion this is an appropriate case to award six months' compensation. I take into account the amount of gross wages that the applicant was earning at the date of the termination of her employment and use that as a basis to calculate the quantum of compensation due to her. That calculation is as follows: It is an agreed fact that she was earning a gross amount of $660.20 per week. I divide that figure of $660.20 by 7 in order to reach the daily rate. I multiply the resulting daily rate by 365 in order to reach the figure for one year, and I divide that by 2 in order to reach the figure for six months, which is the maximum permissible figure under the Act. In my opinion, it is likely that the actual economic loss suffered by the applicant will be in excess of a sum equal to six months' remuneration. It seems to me, although the evidence is not clear, that the applicant was not employed under an award. But in any case, section 170EE(3)(a) limits the amount of compensation that can be awarded under section 170EE(2) to: "The amount of the remuneration that would have been received by the employee in respect of the period of six months that immediately followed the day in which the termination took effect." That figure is $17,212.35. I order the respondent (J & M Waste Pty Ltd) to pay the sum of $17,212.35 to the applicant for the unlawful termination of her employment within 21 days of today. Additional reasons for judgment, given 26 September 1995. I have asked the parties' representatives to return, and thank them both for coming back. When I reviewed my notes yesterday, after everybody had gone, I realised that there were two areas of the case that I had intended to traverse, which were in my mind as reasons for my judgment, which I failed to mention. In order to ensure that my reasons for judgment were as full as they should be, I felt it necessary to ask the representatives to return in order to complete what were in fact the reasons for my judgment. The two areas that I intended to, and omitted, to traverse yesterday were, firstly, the credit of Mr William Kamper as a witness versus the credit of the applicant as a witness; and secondly, the question of whether the applicant was a probationary employee at the time of the termination of her employment. In respect of the credit of Mr William Kamper as a witness, I was most unimpressed by him as a witness. He gave the impression that he was giving answers of convenience and changed his evidence on several occasions when under pressure in order to, in my opinion, give what he thought would be a more convincing answer. In fact, his demeanour in the witness box and the way he answered questions had the opposite effect. The applicant on the other hand was a convincing and creditable witness. Her version of the events was to some extent corroborated by her husband, who I also found to be a convincing and credible witness. In respect of the question of whether or not the applicant was a probationary employee at the time of the termination of her employment, Mr Kamper initially said that he told the applicant, in a conversation on Friday 7 April 1995, (the Friday before the commencement of the applicant's employment), that the applicant was to be on probation for a two month period. Towards the end of his evidence, he changed his evidence in that respect so that the first mention of any particular period of probation (as opposed to the fact of probation) to the applicant occured on Thursday 13 April. That inconsistency in his testimony reflected adversely on his credit as a witness - particularly in respect of the issue of whether the applicant was a probationary employee. I accept the applicant's version, namely that she was told on Friday 7 April that she was to be on probation for a four week period. It follows that she was not a probationary employee at the time of the termination of her employment. ________________________________ I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch. Associate: Claire McAuley Date: 27 October 1995 Appearances Applicant: Mr J. Watts of counsel Respondent: Mr M. Hershderfer of counsel Date of Hearing: 25 September 1995 Date of Judgment: 25 & 26 September 1995