Vandyk v Classic Dove Pty Ltd [1996] IRCA 362

DECISION NO: 362/96 CATCHWORDS INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination at the initiative of the employer - whether ABANDONMENT of employment - whether termination for prohibited reason of ILLNESS or INJURY - whether termination for VALID REASON of CONDUCT OR PERFORMANCE or OPERATIONAL REQUIREMENTS - whether termination HARSH UNJUST OR UNREASONABLE - whether PROCEDURAL FAIRNESS Industrial Relations Act 1988, ss 170EA, 170DE(1), 170DE(2), 170DC, 170DF(1)(a) reg. 30D JOANNE VANDYK v CLASSIC DOVE PTY LTD VI 1046 of 1996 Before: PARKINSON JR Place: MELBOURNE Date: 9 AUGUST 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1046 of 1996 B E T W E E N: Joanne VANDYK Applicant A N D CLASSIC DOVE PTY LTD Respondent MINUTES OF ORDER 9 August 1996 PARKINSON JR THE COURT ORDERS THAT: 1. The application 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 VI 1046 of 1996 B E T W E E N: Joanne VANDYK Applicant A N D CLASSIC DOVE PTY LTD Respondent REASONS FOR DECISION 9 August 1996 PARKINSON JR This is a decision in relation to an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent at its McDonalds outlet in Doveton, Victoria. The business operated by the respondent is a 24-hour fast food outlet and the applicant was engaged to work as a full-time permanent sales assistant on Sunday to Thursday between 9.00pm and to 6.00am, the spread of these hours having been negotiated between the parties. The employment commenced on 19 November 1995. The respondent contends that there was no termination of employment at the initiative of the employer, and consequently that there is no jurisdiction in the court to hear the application made pursuant to s170EA of the Act. The respondent contends that the applicant by her conduct in the employment abandoned her employment. It contends in the alternative that if there was a termination of employment at its initiative, it was for valid reason based upon the operational requirements of the respondent. The applicant contends that her employment was terminated in the course of a telephone conversation with the respondent's store manager in about mid December 1995. She contends that the termination of the employment was without valid reason and included as part of the reason a matter proscribed by s170DF(1)(a) of the Act, namely that she was absent from work on account of short term illness or injury. It is appropriate to set out broadly the evidence in this matter and my findings of material fact in this regard, and I now turn to do so. Prior to commencing her employment the applicant was provided with a policy document setting out policies and procedures of the respondent (Exhibit R2) and an employment agreement setting out the terms and conditions of employment proposed by the respondent (Exhibit R3). The applicant was required to read the documents, sign them and return them to the respondent. The applicant's evidence is that she signed both documents, although only the signed policy document was produced to the court. The policy document sets out the steps required of employees in the event that they are to be absent from work on account of illness or injury. The requirement is that the employee notify the respondent within a reasonable time. That time is specified as being not less than two hours prior to the start of the shift. The applicant attended for work on 22, 23 and 24 November 1995 in accordance with the terms of the employment. On 27 November she did not attend work as a consequence of illness. The applicant returned to work on 28 November and was then again absent on 4 December and 5 December. The applicant did not attend at work after 5 December. On about 6 or 7 December Ms Vikash, a manager of the respondent, telephoned the applicant to inquire as to her absence and, after reminding the applicant as to the need to notify absences and provide medical certificates, authorised an additional week's absence. During the course of the applicant's absences the respondent's managers had been recording the failure of the applicant to notify them of absences on the documentation provided by the respondent for that purpose (Exhibit A2). The applicant was expected to return to work on the evening shift of 17 December 1995. On that evening the applicant again did not attend for work. No notice was given by her as to her non-attendance. She did not then again attend for work between that date and around 5 January 1996, and no communication was initiated by her with the respondent as to her absence. No medical certificates were provided by her in this period. The evidence is that she remained on the roster of the respondent during the period 17 December 1995 to at least 31 January 1996. The evidence is that the applicant attended work for approximately 47 hours in total over a six week period. On each of the earlier occasions of her failure to attend work, last minute arrangements were made to replace her with another employee. Eventually, the respondent made more permanent arrangements to cover the applicant's absence by rostering someone else for the shifts. This did not occur until end January 1996. During this period arrangements were made for the applicant to receive sick pay and any annual leave owing to her. In about mid December 1995, but apparently after 17 December 1995, the date the applicant was due to return to work, the store manager, Ms Kelly, telephoned the applicant at home to ascertain once again the reasons for her absence. She was at first unable to speak to the applicant, but left a message with another person at the applicant's residence. The applicant did not however return her telephone call and Ms Kelly again rang the applicant that afternoon, ultimately reaching the applicant in person. The applicant's evidence is that during the course of that conversation she was abused by Ms Kelly, and her competence as a parent called into question by Ms Kelly. As a result of this aspect of the conversation the applicant hung up the telephone. Her evidence was that Ms Kelly indicated that the respondent needed responsible people, and that if the applicant could not work the hours required of her they would have to replace her. The applicant took this to be a termination of her employment. Ms Kelly's evidence was that in that conversation she raised with the applicant the difficulties faced by the respondent when the applicant did not notify them of her absences in advance of the shift. Her evidence was that she also raised the applicant's need to provide a doctor's certificate, together with the fact that if this continued the respondent would have to arrange for a replacement for the applicant. As to this latter matter, it is clear from the evidence that this was directed to the ongoing difficulties that the respondent was having in filling the applicant's absences. I accept Ms Kelly's evidence that the conversation was not directed to terminating the applicant's employment. Her evidence was that there was no mention of the applicant's employment being terminated, and no reference to the applicant being dismissed was made. Further, I accept that the applicant was also asked what steps could be taken by the respondent to accommodate her difficulties. I accept that this was the content of the conversation. This is consistent with the conduct of the managers of the respondent in their dealings with the applicant during the entire course of the employment. It is evident that the respondent's store managers, Ms Vikash and Ms Kelly, had at all times acted reasonably towards the applicant and had not at any time acted precipitously or without regard for the interest of the applicant as well as the respondent. For these reasons, and also because of the more precise nature of their evidence, I prefer the evidence of Ms Kelly and Ms Vikash to that of the applicant. It is appropriate, however, to also note that even on the applicant's version of the conversation, I am not satisfied that there was a termination of the employment by the respondent. I am satisfied that no termination at the initiative of the respondent occurred or arose as a result of the telephone conversation between Ms Kelly and the applicant.