Janelle Louise Suckling v Banjora Holdings Pty Limited trading as Shell Western Plains [1995] IRCA 696

CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - Initiative of employer - CONDUCT of employer - COMPENSATION Industrial Relations Act 1988 ss 170EA, 170EE(3). JANELLE LOUISE SUCKLING -v- BANJORA HOLDINGS PTY LIMITED trading as Shell Western Plains No. NI 2123 of 1995 COURT: LINKENBAGH JR PLACE: DUBBO DATE: 22 NOVEMBER 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No NI 2123 OF 1995 BETWEEN: Janelle Louise SUCKLING Applicant AND: BANJORA HOLDINGS PTY LIMITED trading as Shell Western Plains Respondent REASONS FOR JUDGMENT (Delivered ex tempore - revised from transcript) 22 NOVEMBER 1995 LINKENBAGH JR This is an application for a remedy pursuant to the provisions of section 170EA of the Industrial Relations Act 1988. The applicant was employed as a waitress by the respondent. I find that the correct respondent is as shown in the Notice of Employers Appearance. The spelling of the company name is Banjora Holdings Pty Limited, trading as Shell Western Plains, which is a Shell service station and road house complex in Dubbo. The applicant had been employed there since 2 October 1992 and had an unblemished work history until the events of the evening of 14 April 1995 On that night she was working in her capacity as a waitress on a shift from 3 pm until 11 pm. Some time around 6 pm she received a telephone call from Mr Shalimov who is one of the proprietors of the company and he requested her to, if she had time and was not busy, leave her employment as a waitress and go to the service station part of the premises where she should clean the toilets and attend to filling up of buckets if required. The applicant did that and returned to the restaurant area where she resumed her work as a waitress. She was instructed to make some sandwiches. Her evidence is that she had to turn ten loaves of bread into sandwiches. The evidence of the other witness is that there were only six loaves of bread to be turned into sandwiches. Nevertheless, there were a lot of sandwiches to be made and she was to fit that duty in with her other duties as a waitress, including taking orders, waiting on tables and doing some other chores in the kitchen. Some time after she returned to the restaurant Joanne Shalimov, the daughter of Mr Shalimov came into the kitchen and she spoke to the applicant about taking an order from the customer and Joanne then left the restaurant area. There was a group of customers in the restaurant, one of whom had purchased a carton of Moove. The applicant, from her position in the kitchen making sandwiches, saw that customer go to the drink fridge and remove a carton of Moove from the fridge. She became concerned as to whether or not the customer had paid for the Moove. She spoke to Pauline Egan, who was the cook on duty, about what she should do and she then attempted to telephone Joanne Shalimov but could not contact her. Very shortly thereafter Joanne Shalimov entered the kitchen by the back door and the applicant spoke to her about the procedure to be followed given her doubt as to whether or not the customer had paid for the Moove. The response of Joanne Shalimov to that request was in my view an unusual response from someone in a management position. Miss Shalimov did not address the issue which had been put to her by the applicant but spoke to the applicant along the lines that problems to do with not observing customers activities arise because the waitress is not on duty at the front counter at all times. The applicant understandably in my view saw an implied criticism in what was said to her by Miss Shalimov and took issue with her. An argument ensued. There was not a lot of difference between the versions of that argument which were given by the applicant, Miss Shalimov and Mrs Egan. They all agreed that the applicant said to Miss Shalimov words to the effect that she had a variety of duties to perform, that she had to make the sandwiches, that she had to go down to the service station and clean the toilets and that in effect it was not possible for her to be at the front counter all the time. All the witnesses conceded that the applicant used the expression "I haven't got 10 frigging arms and legs" in the course of the argument. There were varying opinions given by the witnesses as to whether or not the participants were upset or their voices were raised. It is not necessary for me to make any determination as to the state in which either of the two women was and I can draw the conclusion from the words which were used that both women were engaged in a somewhat heated conversation. The conversation terminated when the applicant left the place of employment. There was dispute between the witnesses as to the words which were said to her immediately before she left. The applicant said that Miss Shalimov said to her: "You know where the door is". Miss Shalimov says that she said: "If you are so unhappy the door is always open" and Mrs Egan says that Ms Shalimov said: "If you're not happy Nel, you know where the door is". It is always difficult for people to remember the precise words that were used on a given occasion, so many months after the event. Mr Shalimov, in his evidence, mentioned that his daughter had told him that she had made a diary entry of the events shortly after they occurred but that diary entry is not in evidence before me. Of the three versions of the words used which were given in evidence I find that it is least likely that Miss Shalimov's words were the words used and I say that for the following reasons. Firstly, Mrs Egan is an independent witness and her recollection is that the words in relation to the door were: "You know where the door is". Miss Shalimov's recollection of saying: "The door is always open" is a curious expression in my view as to say that a door is open generally implies an invitation to return where that was clearly not what was in her mind at the time she spoke whatever words were spoken on this occasion. I find therefore that the applicant left the place of employment on the evening of 14 April after words had been exchanged which were provoked by Miss Shalimov's reference to the cause of the problem, that is, that there should be a waitress on the front counter all the time. She also left after the words: "You know where the door is" were said to her and all of that happened in circumstances where there had been a heated conversation between her and a representative of the employer. I think it is very likely that the applicant would have continued indefinitely in the employ of the respondent, had the conversation not taken the turn which it took as a result of Ms Shalimov's response. She had been asked to assist the applicant to solve a problem in the restaurant and instead of directing her mind to the resolution of the problem concerning the customer, she said words which, on any reasonable view, would have incited the person to whom they were directed, in all of these circumstances, to feel threatened. I further find that Mr Shalimov, on behalf of the employer, was in doubt on the day after as to what had happened and he conducted an inquiry. Had Ms. Shalimov informed her father in clear terms that the applicant had resigned on the Friday night, an inquiry would not have been necessary and yet, Mr Shalimov undertook an inquiry which involved his speaking to Mrs Egan. He did not speak to the applicant and did not give her any opportunity to tell him her perception of the events of the Friday night. Had he done so, the issues may well have been resolved at that stage. An additional factor in the employer's conduct on the night, was that Mr Shalimov had positioned himself in his car for a period lasting about half an hour, on the forecourt of the service station, with a view to observing the activities of the customers and the staff and the goings-on at the service station on that night. The applicant knew that he was there and she gave evidence that she felt intimidated by his presence. He, of course, was not to know that, but Ms Shalimov was aware that her father was there and if a little consideration had been brought into the situation she should have perceived that conduct of that nature by an employer is likely to, have the effect of, at least, unsettling those of the staff who were on duty and who knew that they were being observed. During the argument Ms Shalimov invited the applicant to go outside and speak to her father about the matters. I cannot understand the logic of that, because what was being put by Ms Shalimov, as to the shortcomings in the procedures in the restaurant, was not something which could have been solved by the applicant, or was the prerogative of the applicant to solve, in any event. It was a matter for the employer at all times to determine its systems of work and it would have been unreasonable of Ms Shalimov , she having raised the issue in the first place, to then put it on to the applicant that she go and speak to Mr Shalimov about it. It was not a problem that the applicant had raised in the first instance and was a management matter which should have been dealt with by management in a far more appropriate manner than by the attack which Ms Shalimov made on it on this occasion. Of course, nobody is perfect and that goes for employers as well as employees and appropriate concessions must be made. It is unfortunate in my view, that this employer did not, after the event, look at the circumstances and take some action to remedy the unfortunate consequences which flowed from Ms Shalimov's conduct. I have no difficulty in finding that this termination of employment was a termination which was at the initiative of the employer and I reject the submissions made for the respondent that in fact the applicant resigned. This was not a resignation and it was an action of the applicant which was provoked by the conduct of Ms Shalimov on behalf of the employer and was exacerbated by the failure of the employer to reconsider the situation after the event and make some attempt to remedy the situation. As I have said, that includes the fact that Mr Shalimov conducted what he described as an investigation on the next day, which did not involve any contact with the applicant. Mr Shalimov's view of his relationship with his employees is, as he said in evidence, "I'm not here to run after them if they walk out". One would expect that an employer conversant with modern employment practices would be somewhat more circumspect to ensure that the fact of the employee leaving was not caused by any action on the part of the employer. Mr Shalimov's view is reflected to some extent in his daughter's attitude. After she had, as I have found, provoked the heated discussion by her response to the request for assistance by the applicant, she said that her view was that she did in fact leave it to the applicant to sort out the difficulty. That is a surprising view, given that I have found that in fact the difficulty was created by Ms Shalimov in the first instance. Mrs Egan, who as I have said, is the only independent witness to the events on 14 April is still in the employ of the respondent. I find that Mrs Egan was an honest witness and she recollected the events to the best of her ability. She telephoned the applicant and the applicant's mother on the Saturday and in her evidence she said that she did that because she felt that things should not have happened as they did, but that her impression was that the applicant had left the employment. Certainly on the face of it the applicant had left the employment but as I have found that was because of the conduct of the employer. Mrs Egan's observation that things should not have happened as they did is an observation which is supported by the evidence before this Court and it is regrettable that things, as referred to by Mrs Egan, were not remedied very quickly after the 14 April. It was within the employer's power to do so. I therefore find that the termination was not for a valid reason and it is appropriate to turn to the remedy which is available. Reinstatement is the primary remedy available. I note that today the applicant told the Court that she would return to her employment if it was available to her. I am of the view, however, given all of the circumstances that in a workplace of this size, given the events which have occurred, reinstatement is not practicable and I find that compensation is the appropriate remedy. The parties agree that the applicant's average gross wage at the time of termination or shortly before that was $315 per week and that she has earned $1110 from other employment since 14 April. There is no reason for me to be other than satisfied that had the events of 14 April not have occurred this employment would have continued indefinitely and this is, therefore, a case where the maximum compensation allowable under the legislation is appropriate. Twenty-six weeks pay at $315 per week is $8190. It is appropriate to deduct from that, for the purpose of calculating compensation, earnings since termination which are $1110 and I, therefore, intend to make an order for compensation in the sum of $7080 being the difference between those two amounts. The orders that I make are, therefore, as follows: 1. That the name of the respondent be changed to Banjora Holdings Pty Limited trading as Shell Western Plains. 2. That the respondent pay to the applicant by way of compensation pursuant to section 170EE(3) of the Act a sum of $7080 within seven days. I certify that this and the preceding five (5) pages are a true copy of the reasons for Judgment of Judicial Registrar Linkenbagh. Legal Assistant: Caroline Sternberg Date: 19 January 1996 Solicitor for the applicant: Mr M Norton North & Badgery Representative for the respondent: Mr K McKell Motor Traders Association