Bell v Walkabout Leisurewear Pty Ltd [1996] IRCA 341

DECISION NO: 341/96 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 6356 of 1995 B E T W E E N : SHANNON BELL Applicant AND WALKABOUT LEISUREWEAR PTY LTD Respondent Before: Judicial Registrar Murphy Place: Melbourne (heard at Ballarat) Date: 26 July 1996 REASONS FOR JUDGMENT Application and Issues The applicant seeks a remedy pursuant to s170EA of the Industrial Relations Act ("the Act"). She alleges that her employment was unlawfully terminated on 6 December 1995 when she was told by the respondent's factory manager that she had been "fired". She does not seek reinstatement to her position. The respondent employs about 30 people and is involved in the clothing industry. It resists the applicant's claim on the basis that it did not dismiss the applicant. It asserts she abandoned her employment. Events prior to 6 December 1995 The applicant, who is aged 17, commenced employment with the respondent on 25 October 1995 under a wage subsidy scheme. In her pre-employment interview she was told she would commence work folding ironing board covers and then progress to learn how to operate a number of machines within the respondent's factory. In fact, as events unfolded, she only progressed to one machine, the Bar Tack, and what happened in relation to its use is central to this proceeding. Operation of the machine creates a hazard that requires the use of safety glasses. On the day she commenced work the applicant said she was shown how to work the Bar Tack machine by the supervisor, Julie. She said she then worked on that machine alternatively with folding ironing board covers and clothes for the next seven weeks. She said that at no time in this period prior to 5 December did she see any safety glasses for use on the machine. At no time was she asked to wear safety glasses on the machine. The applicant's evidence that she worked on the machine throughout the period to 5 December was not challenged in cross-examination. The respondent also failed to call her immediate supervisor, Julie, who appeared to be in the best position to contradict the applicant's evidence on this matter. The applicant is requested to wear safety glasses The applicant said that the first time she was asked to wear safety glasses on the Bar Tack was on Tuesday 5 December 1995. She said she was asked to do so by Ms Parsons. Ms Parsons is a director of the respondent. She works in the office and is responsible for administration and accounts. The applicant was handed a pair of glasses and commented, sarcastically, about their appearance to a co-worker, Ms Romeo. She said she wore the glasses that day. She found that night, however, she had eye ache that she attributed to the glasses. On the respondent's version Monday 4 December was the first day that the applicant worked on the Bar Tack machine. Ms Parsons, who said that she had not seen the applicant working on that machine before, asked the applicant why she was not wearing safety glasses. The applicant replied "I don't know". The glasses could not be found and Ms Parsons purchased a pair and gave them to the applicant to wear. Ms Parsons said that she saw the applicant wearing the glasses on that day. Ms Parsons did not go into the factory the following day, 5 December. Ms Romeo said that she recalls seeing the applicant on the Bar Tack machine a couple of days before the applicant ceased employment. She said that the safety glasses were always at the machine, although she did recall Ms Parsons purchasing a pair. In the couple of days before 6 December Ms Romeo said she saw the applicant failing to wear the glasses properly, by either putting them on top of her head, or leaving them off a couple of times when she was using the machine. Another co-worker, Mr Wade, gave evidence to the same effect. Events of 6 December It was the applicant's evidence that when she went to work on Wednesday 6 December, she approached Mr Penhall, the factory manager, mentioned the eye ache of the previous day, and asked for alternative duties. Mr Penhall told her not to be stupid and to go back to work. Later Ms Parsons came to her and asked her what was wrong with her eyes. The applicant again mentioned the eye ache from the safety glasses and told Ms Parsons she was going to have her eyes tested. Ms Parsons asked the name of the doctor and the applicant mentioned her doctor's name. In cross-examination the applicant said that after she gave Ms Parsons the name of her family doctor she realised that Ms Parsons wanted the name of the eye doctor and as Ms Parsons was leaving she mentioned the firm of optometrists she was going to see. She then went back to work. The respondent's version was that the applicant approached Ms Romeo on that morning and told her that her doctor had told her she should not wear safety glasses. Ms Romeo had relayed the message to Mr Penhall. He then approached the applicant and she repeated the comment. Mr Penhall said that it sounded silly and told her that the glasses were clear plastic and were needed for safety reasons. The applicant then went to the Bar Tack machine and wore the glasses. She was, however, putting them on and taking them off, and Mr Penhall approached her to direct her to wear them. The applicant started crying and went to the toilets. In the course of two hours that morning Mr Penhall gave evidence that he asked her on a number of occasions to wear them. He claimed he had seen Ms Parsons, Mr Wade and Ms Romeo also asking the applicant to wear them. Mr Roland confirmed Mr Penhall's evidence. Ms Romeo said that she saw Mr Penhall approach the applicant on one occasion and the applicant had then rushed to the toilets. Both Ms Romeo and Mr Wade gave evidence that the applicant told them that she looked funny in the glasses. Mr Engwerdo, a director of the respondent, gave evidence that he approached the applicant at one stage to ask her about the glasses and she broke down in tears and rushed to the toilets. On Wednesdays, the major customer of the respondent, the Department of Defence, attend the factory to check the quality of the garments being produced. The presence of the major customer was a concern to Mr Penhall as the applicant's actions in refusing to wear the glasses, crying and rushing to the toilets was disrupting other staff. The applicant's evidence was that after she was originally told by Mr Penhall to work as directed, she went back to work. She said that to activate the machine the operator has to put "a fair bit of weight" on the pedal. She was doing this and Mr Penhall came up to her, poked her on the shoulder and told her "that if you've got the fucking shits don't take it out on the fucking machine". She was upset and humiliated by this and went again to the toilets. She then asked Ms Parsons for a smaller size pair of glasses but was told that one size fits all. She returned to the machine and found that Mr Wade was working on it. At that point she was standing around about to ask someone else what to do when Mr Penhall approached her, tugged at her jacket and asked her into his office. He then said to her that she should ring her parents. The applicant replied that they were at work and he then said "well you had better ring someone to come and get you because you are fired". The applicant was shocked and rang her mother at work. She told her she had lost her job and started crying when she was speaking. At that point Ms Parsons came in and took the telephone from her. She then heard Ms Parsons tell her mother that she, the applicant, had told Ms Parsons that her doctor had said she wasn't allowed to wear safety glasses. Further, the doctor had told Ms Parsons that it was like telling someone not to wear a seatbelt. She also heard Ms Parsons tell her mother that "she will not have a 17 year old girl running her factory". The applicant at that point left to go again to the toilets. Mr Penhall's account was that because the applicant was so upset and was upsetting employees, and with the Department of Defence present, he "didn't think it was the right atmosphere to have in the place at that stage". He then asked the applicant to ring her parents and "you know, tell them to come and get you and go home for the rest of the day". He denied telling the applicant that she had been sacked. He admitted in cross-examination that no mention was made of coming back to work the next day. He recalled hearing Ms Parsons telling the applicant's mother on the telephone that she had not been sacked. He admitted that he may have touched the applicant on her shoulder at some stage and may have cautioned her about damaging the machine. He said it was his idea to send the applicant home for the day. Ms Parsons' evidence was that she overheard the applicant speaking to her mother and telling her mother that she had been sacked. She had then come from her office to Mr Penhall's office and asked to speak to the applicant's mother. She had then spoken to the applicant's mother and advised her that the applicant had been sent home for the day. She advised her that she was upset and she is better off at home because "she was just disrupting the factory". The applicant was just standing there sobbing at that point. Ms Parsons also advised the applicant's mother that the applicant had refused to wear safety glasses and that it was in her best interest and "ours since she was so upset, for her to go home for the day and think about it, and when she decided to put the glasses on, to come back". She said she told Mrs Bell on four occasions that the applicant had not been sacked. Mrs Bell's evidence about the telephone conversation was starkly different and more detailed than that of Ms Parsons. Mrs Bell said that when Ms Parsons told her that the applicant had been dismissed she protested. She asked why and was told that the applicant had refused to wear safety glasses. She asked if the respondent could instantly dismiss her daughter for that. She was told that her daughter had been warned that morning. Mrs Bell then mentioned the requirement that three written warnings be provided. She had offered to come to the factory to try and sought things out but this was declined. Ms Parsons had referred to the information that she had received from the applicant's doctor. At some stage Mrs Bell heard her daughter crying and a male voice yelling "get out, get out". At that point Ms Parsons said that the applicant had "walked out and abandoned her employment". The conversation ended abruptly with Mrs Bell protesting at the treatment of the applicant. Both parties were about to ring the CES. Ms Parsons admitted the conversation but gave little detailed evidence as to its contents. She maintained that on a number of occasions she advised Mrs Bell that her daughter had not been sacked. Rather she said she was upset and "she's better off at home because...... she was just disrupting the factory". Events the following day The applicant gave evidence that the next day she was rung by Ms Parsons and asked to bring a letter of "dismissal" to her. She said that she wrote out a letter stating that she had been fired (Exhibit A2). She delivered it to Ms Parsons who read it and said "this isn't true". She was then handed an Employment Separation Certificate (Exhibit A1). She denied that she was offered her job back by Ms Parsons. Ms Parsons said that it was the applicant who had rung her the next day seeking an Employment Separation Certificate. She told the applicant that she had not been dismissed and her job was still open. The applicant had replied that she was dismissed and sought the certificate. Ms Parsons sought advice from an employer association and was advised that a letter of resignation was necessary. She rang the applicant back and requested a letter of resignation. The applicant later attended at the factory and handed Ms Parsons a letter in an envelope. Ms Parsons said she did not read it at the time and handed the applicant the Employment Separation Certificate. This stated that the applicant had voluntarily ceased employment. It went on : "After refusing to wear safety glasses on machine (bartack) Shannon was told to go home until she would wear them. She made a call to her mother to be picked up. Whilst I was talking to her mother Shannon became upset and was asked to wait outside. I finished talking to her mother and rang C.E.S. (Louisa). Whilst on the phone Shannon came in picked up her bag & left. Later received call from Terry Lynch who said Shannon had been to see him re Unemployment Benefit." It was never put to the applicant that in fact there were two telephone conversations between herself and Ms Parsons on 6 December. It was contested that it was the applicant who first contacted Ms Parsons but it was never put to her that Ms Parsons had contacted the applicant back. Dismissed or abandoned ? There was a stark contrast in the evidence from witnesses whose demeanour belied the fact that the two competing versions they gave were irreconcilable. Documentary evidence to support the competing versions was, as usual, sparse. Mrs Bell had recorded her recollection of her conversation with Ms Parsons later that day and used it to refresh her memory. Prior to doing that however she admitted she had discussed the matter with her daughter on the way home from the factory. Ms Parsons produced the Employment Separation Certificate (Exhibit A1) that she had proffered to the applicant on 8 December. The conduct of the trial was somewhat unusual in that Ms Parsons and Mr Penhall were present during the evidence of the applicant and Mrs Bell. Also, Mr Engwerdo was present during some of the evidence of the respondent's witnesses. Mr Engwerdo and Ms Parsons cohabit and the former admitted that occurrences in the factory are discussed between them. The competing versions each have an air of credibility about them. The applicant's version, that she was the victim of high-handed actions by Mr Penhall and Ms Parsons concerned to remove an emotional 17 year old from the factory on a day when the major customer was on site, rings true. The respondent's version is also plausible in that the applicant may have become sick of the job, been embarrassed by her actions that day, and used the episode of the safety glasses to escape a dreary workplace. Her mother may have convinced herself, over Ms Parsons' protests, that her daughter had been wrongly terminated. Faced with these competing possibilities the Court has reached the conclusion that the applicant's version of events is to be preferred. A decisive consideration in preferring the applicant's version of events was the shifting of the respondent's witnesses under cross-examination and the way in which a number of matters were either not challenged when the applicant gave her evidence, or were the subject of later different evidence. The difficulties of the respondent's version commence with the issue of when the applicant commenced on the Bar Tack. The respondent left her evidence unchallenged yet, having heard it, proceeded to call four witnesses to contradict it. This smacks of recent invention. Another example was who originally told the applicant to go home for the day. It was first put to the applicant that Ms Parsons told her. Ms Parsons gave no such evidence. She said she had discussed the matter with Mr Penhall. Mr Engwerdo said he had discussed the matter with Mr Penhall. Mr Penhall said it was a decision that he took without reference to anyone else and he gave no evidence of a discussion with either Ms Parsons or Mr Engwerdo. The applicant's evidence that Mr Penhall had prodded her and sworn at her was challenged in absolute terms. It was never put that he may have just lightly touched her on the shoulder, or cautioned her about the use of the machine. That was his evidence. It was put to the applicant that in a conversation with a co-worker, Bev, she had indicated she was sick of the job. Without explanation Bev was not called. Another consideration favouring the applicant's account is the clear impression that Ms Parsons, Mr Penhall and Mr Engwerdo were attempting to reconstruct what happened that day. In this regard there was a contrast between them and Ms Romeo and Mr Wade. On key aspects the applicant's version was supported by her mother. Parental evidence must always be treated with the utmost scrutiny but she impressed as an honest witness and the detail of her evidence had a ring of truth about it. There were three issues on which I do not accept the applicant's evidence. The first is the question of what she said her doctor said. I am satisfied that the applicant did tell Ms Parsons that her doctor had told her she did not have to wear safety glasses. The second matter on which I cannot accept the applicant's evidence is whether she was wearing the safety glasses properly on 6 December. On this issue I accept the evidence of Ms Romeo and Mr Wade that, in effect, the applicant was carrying on and refusing to wear them properly. The third matter is whether the applicant sought a separation certificate the following day. I am satisfied that she did. She admitted in her evidence in chief that she contacted the CES on 6 December to enquire about unemployment benefits. It is a matter of record that separation certificates are needed for that purpose. Ms Parsons had no motive to proffer one to her. The applicant made the request. I am further satisfied that the initial request for a certificate was met by Ms Parsons responding that the applicant still had her job. In the context of what had happened the previous day I am not satisfied, however, it was a genuine offer. Findings - the applicant was summarily dismissed I am satisfied that after the applicant had, in an emotional state, refused to properly wear the safety glasses on 6 December 1995, Mr Penhall took the matter into his own hands. He called the applicant in and told her she was dismissed. The applicant rang her mother and the information was also conveyed by Ms Parsons to Mrs Bell. Mrs Bell protested and referred to the need for proper warnings. She also offered to come over to try to sort the matter out. At that point the applicant was told to leave the office area. In the conversation between Ms Parsons and Mrs Bell, Ms Parsons said that the applicant had abandoned her employment. I am satisfied that that was a shift in position from the original confirmation that Mr Penhall had dismissed the applicant. At that point during the conversation the applicant was loudly told to "get out" by Mr Engwerdo. I find that on the following day the applicant contacted Ms Parsons seeking a separation certificate. Ms Parsons, however, requested a letter of resignation after the applicant persisted in seeking a separation certificate when Ms Parsons told her that she had not been fired. I accept that Ms Parsons attempted to retrieve the situation by stating that the applicant's position was still open. Given what had happened the previous day it could not be said that this bald statement was sufficient, without a much more conciliatory approach, to rebuild the relationship. As I accept Mrs Bell's version of her conversation with Ms Parsons, the statement of Ms Parsons was self-serving and designed to be consistent with the contents of the separation certificate. I am satisfied that the applicant supplied a letter to Ms Parsons stating that she had been dismissed. I am satisfied that Ms Parsons read the letter that was proffered, disputed it, and proceeded to hand the applicant the employment separation certificate. That certificate does not reflect what happened the previous day. I am satisfied therefore that the respondent did dismiss the applicant and that she did not abandon her position. The act of dismissal was undertaken by Mr Penhall. Given the emotional state that the applicant was in on that day it could not be said to be a "sound, defensible or well-founded" reason. It follows that I am not satisfied that the respondent has satisfied its onus of proof that it had a valid reason to dismiss the applicant. The respondent has breached s170DE of the Act. Remedy The applicant was unemployed for a period of two months after her dismissal. She lost a total of $1,955 over that period. Since 5 February 1996 she has been working on a LEAP employment project earning $125 per week. Her losses are running at the rate of $100 per week. Her total wage loss to date is approximately $4,500. The "cap" pursuant to s170EE(3) for any award of compensation is $5,868. The applicant, as a result of the respondent's actions, lost her first job. Her position may not have long endured given her attitude to the wearing of the safety glasses. The changing nature of her duties from folding to working on machines may also have meant that the applicant may not have persisted with her employment. On the other hand, upon reflection and advice from her mother, she most likely would have accepted the need to wear safety glasses. As a result of the precipitate actions of Mr Penhall she did not have that opportunity. She lost the chance to be properly treated by her employer. It is unfortunate that all parties did not attempt to make amends after the events of 6 December 1995. Had they done so the applicant may well still be employed. The initiating action for the chain of events that led to the situation was, however, that of Mr Penhall when he told the applicant she was dismissed. This was followed by the actions of Ms Parsons and Mr Engwerdo. While it may be artificial to consider the matter in this way, it is fair to conclude that there was fault on both sides but the preponderance of fault was that of the respondent. Given this it is appropriate that an award of compensation is made. Having regard to the contingency that but for the unlawful termination the applicant may not have continued her employment or have been lawfully terminated, I am of the opinion that the losses to date are a proper measure of compensation for the breach of the Act here. I will order that the respondent pay the applicant the sum of $4,500 in compensation. MINUTES OF ORDERS THE COURT ORDERS THAT 1. The respondent pay to the applicant the sum of $4,500 within 21 days. 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 twelve (12) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 26 July 1996 Solicitors for the Applicant: Maurice Blackburn & Co Counsel for the Applicant: Mr Lachlan Carter Solicitors for the Respondent: Phillips Fox Counsel for the Respondent: Mr W Alstergren Date of hearing: 6 & 7 June 1996 (Heard at Ballarat) Date of judgment: 26 July 1996