DECISION NO:652/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY REGISTRY VI 2274 of 1996 B E T W E E N: Kerry Louise THORNTON Applicant A N D DRIVEFORCE PROFESSIONAL DRIVERS PTY LTD Respondent REASONS FOR DECISION 6 DECEMBER 1996 PARKINSON JR This is an application made pursuant to s170EA of the Workplace Relations Act 1988. ('the Act') The applicant appeared on her own behalf and the respondent was represented by counsel. The respondent conducts a courier service, operating vehicles principally in the metropolitan area. The applicant was employed by the respondent as a permanent part time telephonist and office assistant on 5 March, 1996. In August, 1995 the applicant was provided with an employment agreement setting out the terms and conditions of the employment. The applicant signed the agreement as requested. The employment agreement provided for a 12 month period of operation from 15 August, 1995. The agreement provided for termination of the employment by notice from either party of one week. The agreement also provided for the completion of a three month trial period, which had already been satisfactorily completed by the applicant, prior to the commencement of the agreement, and contemplated remedies being available to the applicant in the event that she alleged her employment was terminated without reason. Nowhere in the agreement is the employment referred to as an agreement for a fixed term. It merely provides that the agreement itself setting out terms and conditions of employment, including wage rates would operate for a 12 month period. Further the agreement was entered after the employment had commenced. I am satisfied that the employment was employment of a continuing nature, subject to the notice period applicable and the rights accruing under the agreement. I am satisfied that the employment is not employment of the type precluded from the jurisdiction of the Court by operation of Regulation 30B (1)(aa) of the Act. The applicant's employment was terminated on 16 August, 1996. The respondent says that the employment terminated as a consequence of the applicant's conduct in the employment, in particular her attitude to her employer and her duties. Mrs Rebecca Richards, a director of the respondent and also the administration manager of the business, gave evidence of the applicant being apparently unhappy in the employment and of various occasions where the applicant was reluctant or unwilling to assist her in performing various tasks or to extend her duties beyond those strictly applicable to the employment. Despite her evidence that the applicant performed her principal duties in the main satisfactorily, she decided that the applicant was unsuited to the work environment and its demands and consequently decided to terminate the employment. Her evidence was that in the course of the employment she felt constrained and uncomfortable working in the one to one relationship required. The applicant's evidence was that she was under pressure in the employment from Mr Richards, the other director of the respondent. Her evidence was that he was frequently angry and addressed her and others in a manner which caused her distress. Mr Richards was not called to give evidence in the proceedings. It was not put to the applicant that her allegations as to Mr Richards' conduct was untrue. The applicant explains her unhappy demeanour in the workplace as being consequential upon Mr Richard's conduct. I accept this evidence. The applicant did not deny that there were occasions when she did not offer assistance to Mrs Richards. Whilst I accept that there were occasions during the course of the employment where Mrs Richards was unhappy with the applicant's demeanour, it is clear that there was no clear statement to this affect to the applicant. It is also clear that the applicant was never informed that the respondent was unhappy with her demeanour or work performance. I am not satisfied that the respondent had valid reason to terminate the applicants employment based upon her conduct or work performance. The termination of the employment was not sound or defensible in the sense discussed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd(1995) 62 IR 371. The decision and its timing, together with the steps taken by the respondent to hire an alternative employee, to replace the applicant prior to informing her of the termination of the employment, can easily be described as capricious. For the above reasons I am not satisfied that the respondent had valid reason to terminate the applicant's employment and find that there has been a contravention of s170DE(1) of the Act. As to the operation of s170DC, I find that the respondent has not complied with its obligations to provide the employee with an opportunity to be heard in relation to the allegations against her. The allegations in this case were her conduct in the employment and her suitability for the workplace. The applicant was not previously informed of the respondent's concerns as to her conduct. Nor was she given any opportunity to speak in her own defence when her employment was terminated. I am satisfied that the applicant was informed of the decision to terminate her employment after steps had been taken to employ a person to replace her. At the termination interview no opportunity to be heard in relation to any specific allegation was given her. I turn now to consider the appropriate remedy. The applicant does not seek an order for reinstatement. In the circumstances I am satisfied that an order for reinstatement would be impracticable. I turn now to consider whether in all the circumstances an order for compensation ought be made and if so what the quantum of that order ought be. I accept that there were difficulties in the employment experienced by both sides to the arrangement. I am satisfied that there were aspects of the approach of the applicant to the employment, being as it was in such a small operation, which led Mrs Richards to be concerned about her suitability for the employment. I am equally satisfied that the applicant found the circumstances of the employment, in particular the demeanour of Mr Richard's, unsatisfactory. I am satisfied that the employment was unlikely to continue for any significant period, although it is likely that the applicant would remain in the employment until she had secured an alternative. I am satisfied that an order for compensation ought be made and that having regard to the length of the employment and the matters set out above an appropriate amount of compensation is the sum of $1,237.60. This compensation represents a period in which the employment was likely to continue but for the unlawful termination and a recognition of the ongoing failure of the applicant to find alternative employment. The compensation amount is a gross amount. Any taxation liability in respect of that amount is the responsibility of the applicant. I certify that the preceding (4) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate : Paul Ferguson Dated : 6 December, 1996 APPEARANCES The applicant in person Counsel appearing for the respondent : Mr J Barrett Solicitors for the respondent : Barretts Date of hearing : 25 October 1996 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY REGISTRY VI 2274 of 1996 B E T W E E N: Kerry Louise THORNTON Applicant A N D DRIVEFORCE PROFESSIONAL DRIVERS PTY LTD Respondent MINUTES OF ORDERS 6 DECEMBER 1996 PARKINSON JR THE COURT ORDERS THAT: 1. Pursuant to s170EE(3) of the Workplace Relations Act 1996 the respondent pay to the applicant the sum of $1,237.60 in compensation. 2. Time for compliance with Order 1 herein is 21 days from the date of this Order. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules CATCHWORDS INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether CONDUCT AND PERFORMANCE a VALID REASON for TERMINATION of EMPLOYMENT - whether OPPORTUNITY TO RESPOND - REMEDY - whether employment likely to continue - Industrial Relations Act 1988, ss 170DC, 170DE(1), 170EA Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371. THORNTON -v- DRIVEFORCE PROFESSIONAL DRIVERS VI 2274 of 1996 Before : PARKINSON JR Place : MELBOURNE Date : 6 DECEMBER 1996