CHARBAN - v - MINNICI NOMINEES PTY LTD [1997] IRCA 103

DECISION NO:103/97 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether the applicant excluded from the operation of the unlawful termination provisions as a casual employee - VALID REASON - whether evidence of MISCONDUCT justifying summary dismissal Workplace Relations Act 1996 ss 170DB, 170DC, 170DE(1) Reed v Blue Line Cruises Limited (unreported, IRCA, Moore J, 26 November 1996) RENATE CAROLYN CHARBAN - v - MINNICI NOMINEES PTY LTD No. VI 2405 of 1996 Before: Judicial Registrar Millane Place: Melbourne Date: 4 April 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2405 of 1996 B E T W E E N : RENATE CAROLYN CHARBAN Applicant A N D MINNICI NOMINEES PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 4 April 1997 THE COURT DECLARES THAT: 1. On 6 August 1996 the respondent terminated the applicant's employment in contravention of the Workplace Relations Act 1996. AND THE COURT ORDERS THAT: 2. Within 21 days of the date of making these orders the respondent pay to the applicant compensation in the sum of $7,400. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2405 of 1996 B E T W E E N : RENATE CAROLYN CHARBAN Applicant A N D MINNICI NOMINEES PTY LTD Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 4 April 1997 REASONS FOR JUDGMENT By an application made on 12 August 1996 the applicant seeks compensation from the respondent alleging that on 6 August 1996 the respondent terminated her employment as a part time console operator in contravention of the Workplace Relations Act 1996 (the Act). On that date she was summarily dismissed without any compensation in lieu of notice. The respondent defends the proceeding on a number of bases. The first is that it asserts that pursuant to regulation 30B(1)(d) and 30B(3) the applicant is excluded from the operation of the Act. This is because at all relevant times she was a casual console operator engaged for a short period; namely, the period between 5 May 1996 and 6 August 1996. Regulation 30B(1)(d) and 30B(3) provide for the following exclusion: "30B(1) Subject to subregulation (2), for the purposes of section 170CC of the Act, the following employees are excluded from the operation of Subdivisions B, C, D and E of Division 3 of Part VIA of the Act: ... (d) a casual employee engaged for a short period within the meaning of subregulation (3). ... 30B(3) For the purposes of paragraph (1)(d), a casual employee is taken to be engaged for a short period unless: (a) the employee is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months; and (b) the employee has, or but for a decision by the employer to terminate the employee's employment, would have had, a reasonable expectation of continuing employment by the employer." If it is unsuccessful on the jurisdictional point, the respondent seeks to justify the decision to terminate the applicant's employment by reference to the applicant's conduct. It claims that the applicant failed to adequately supervise a friend who subsequent to the termination pleaded guilty in the Dandenong Magistrates' Court to a charge of unlawful possession of 128 Sale of the Century Cards; allegedly the property of the respondent. Even if the applicant had no knowledge of the taking of the cards, the respondent took the view that her conduct whilst supervising the training of a potential employee, who was also her girlfriend, amounted to gross neglect of her duties as a console operator. Although it was suggested in the respondent's opening to the Court that prior to the termination the applicant was asked to provide an explanation concerning the taking of the Sale of the Century Cards and because there was no satisfactory explanation forthcoming the respondent proceeded to dismiss her, it is apparent that when the respondent was notified by the police of the alleged theft the personnel adviser was instructed to terminate the applicant's employment and proceeded to do this by telephone without providing any or any reasonable opportunity to respond to the allegations made against the applicant. Accordingly, there was at termination contravention of section 170DC of the Act if, at the relevant time, the applicant's status was that of a part time employee. WITNESSES The respondent called the following witnesses: - Dominic Minnici (Minnici), the proprietor/manager; - Senior Constable Bernard Anthony Dowling (Senior Constable Dowling), a police officer who was involved in the investigation of the possession of 128 Sale of the Century Cards by Nicole Cooper when the police raided her home; and - Kerryn Patricia Michaux (Michaux), the respondent's personnel manager. The applicant gave evidence and called the following witnesses: - Peter Charban, the applicant's husband; and - Nicole Cooper (Cooper), the applicant's girlfriend and the person who was in possession of the 128 cards when the police raided her home in early August 1996. Because the applicant appeared in person the respondent agreed to call its evidence first, although it was acknowledged that the applicant carried the initial burden of establishing her entitlement to the benefit of the operation of the unlawful termination provisions contained in the Act. THE EVIDENCE One of the difficulties I had with the respondent's evidence was that in a number of ways it failed to support the contentions put to the Court in its opening. The claim that the applicant was given an opportunity to respond to the allegations made against her, which claim I have already referred to above, is one illustration of this point. Others included the unsubstantiated allegation that during the three month period of her employment the applicant's performance was the subject of review by the respondent on a couple of occasions as well as the allegation that the personnel officer, Michaux, would give evidence to the Court of the oral terms of employment applying to the applicant in May 1996 when she was engaged by the respondent. With regard to the performance issues, there was evidence from Michaux and the applicant to indicate that on one occasion Michaux entered the service station and found the applicant reading a magazine. On that occasion the applicant was of the view that she was allowed to read magazines when she was not busy. In any event, she told the Court that she did not receive any warnings or cautions in relation to her performance or conduct at any time up until the termination of her employment. The evidence supports her on this matter. Insofar as there was any evidence given of the oral terms of the applicant's employment, that evidence was confined to the evidence of Minnici who conducted the initial interview. The personnel officer who subsequently dealt with the applicant in the early stages of her employment, was a person named Gail Williams. Williams was not called to give evidence of any oral terms of employment and the Court was told that she was no longer employed by the respondent. The applicant is twenty-four years of age. She is married with four children, the youngest of whom was just five weeks of age at the date of hearing. Generally speaking, I found the applicant to be a credible and straight forward witness. She also demonstrated a more consistent and detailed recollection of the relevant events than either Minnici or Michaux. The impression I gained from Minnici's evidence was that not only was his recollection somewhat sketchy but when the opportunity arose he appeared to tailor his evidence to advance the respondent's case. The respondent operates three service stations run by Minnici and his brother during some twenty-seven to twenty-eight years. Those stations are located at Clayton, Clayton North and Nottinghill. According to Minnici during 1996 the respondent employed between eighteen and thirty casual console operators as well as four mechanics and one workshop operator who were full time employees. Michaux put the number of casual console operators at twenty-one, however, it was agreed that it was necessary to have some seven console operators available for each service station to cover the shifts. There were three shifts worked at each service station from 7.00am to 8.30am, then 8.30am to 5.30pm and lastly, 5.30pm to 10.00pm. Each service station had a site manager who completed a roster with the names of the console operators working on each shift. When Minnici was asked by his counsel how the console operators were employed, he responded as follows: "... Okay, a casual operator - there is a terminology between part-timers and everybody thinks they are part-timers, they are casual. We employ them as casual and they are paid the rate of a casual console operator and a casual is that we can call them in at any time if we are in trouble or someone is sick or someone did not show up or one of the guys has had exams, we can ring a casual or we can ring an operator and say can you come in and work between these certain hours and that is why we have casual console operators. We need that flexibility because quite often we are let down (sic)." When he was asked whether during his interview of the applicant he told her what her rate of pay would be, he at first told the Court that he could not recall whether he did or did not but then went on to say that he did tell her that her employment was casual and her holiday and sick leave pay were all included in the rate of payment. The applicant disputed this arguing that at no time was she informed that her employment was casual employment or told that the rate of pay included her holiday and sick leave pay. On the contrary, she states that when she attended the Commonwealth Employment Service (the CES) the advertisement she answered referred to a part time console operator's position. Moreover, the correspondence subsequently handed to her by the respondent during her employment referred to her as a part time console operator. Having perused the wage record submitted to the Court by the respondent (Exhibit R1), I note that it refers to her as a "P/T CONSOLE OP". I interpret that to be a reference to a part time console operator. Again, whilst giving his evidence-in-chief and responding to a question as to whether the respondent employed any part time console operators, Minnici said: "No, no they are all casual. It is a terminology that part-timers - I might have said, get a part-timer in, it is not a part-timer it is what roles off the top of your tongue, they were all casual operators and they were paid casual rates and we could call on them at any time, every one of them (sic)." Exhibit A1 is a letter written by Michaux during the currency of the applicant's employment and it makes the following statements: "To Whom It May Concern Please be advised that Renate Charban commenced working for this Company on the 5th May, 1996, as a part-time Console Operator on an hourly rate of $12.65 p.h. Renate works approximately between 18 and 27 hours per week, which may alter from time to time. If you require any further information regarding the above, please contact me on the number below." Michaux could not recall the reason for writing the letter. It was the applicant's uncontested evidence that she required the document from her employer to provide evidence of her employment when she and her husband applied for a loan to buy a house and land package. The applicant contends that the reference to a "part-time" console operator in that correspondence confirmed what she understood was the status of her employment at all relevant times. Michaux, like Minnici, seemed to think that it was all just a matter of terminology and because the applicant worked on a shift and was paid at a casual rate, she was in fact a casual employee. When she was cross-examined about the statement in her letter, the following exchange occurred between Michaux and the applicant: "The letter states that I am employed as a part time console operator. From this are you saying that this is true? --- Am I saying what's true, that you're a part time console operator? You're paid on an hourly rate it says of 12.65 an hour. As a part time console operator? --- Well, part time's a terminology word that you use for people that aren't full time employees. That's how I terminated terminology. So would it be fair to assume that upon receipt of letter I would assume that I was part time console operator employed at that rate? --- No, like I said, it's only a terminology used in a letter. I don't understand the difference you're asking me. Well, there is a big difference between casual employed and part time employed so I am told. ... Do you know that there is a difference? --- I'm not totally aware of it. I'm aware that it says you're employed on an hourly rate. ... Why would that say that I am part time? --- Because I always called everybody, as I said, a part timer if they weren't employed as a full time site manager. That is a fault of mine I suppose. That's how I --- So you always referred to people as being part timers? --- Usually, yes. So whenever it was discussed you would refer them to mean as part timers? --- Yes, on an hourly wage. So could it be fair to say that someone would assume in speaking to you as personnel officer that what you said could be taken as the truth, as actual fact? --- If I stated to someone that so and so works as a part timer? Yes? --- Is that what you mean? Well, I'd still say it to this day and yet then I --- What I am trying to say is that I thought I was employed part time, as a part time --- ... So it would be fair to say that I would presume myself as being a part time console operator paid on an hourly rate of $12.65 per hour? --- What you assumed? From that letter, yes? --- The letter states that but you knew you were an hourly employee." Relying on the abovementioned extracts of the evidence given by Minnici and Michaux and the contents of Exhibits A1 and R1, it is more probable than not that during any discussion with the applicant, both before her employment commenced and over the period of her employment, there was no direct reference to her being employed as a "casual" console operator. If anything, she was told her employment was part time and this was subsequently recorded in the exhibited documents. When Minnici first gave his evidence he expressed the view that the position had been advertised in the newspaper and he had arranged an interview with the applicant by telephone when she answered the advertisement. When he was cross-examined on this matter he appeared to accept the applicant's proposition that she found the position through the CES and it was the CES that arranged for her interview with Minnici, rather than any direct arrangement between her and Minnici in April 1996. He did not really contest the applicant's evidence that the job advertised at the CES referred to a position for a part time console operator. All these matters suggest that any notice placed with the CES did refer to a part time position and, at the date of her interview, the applicant believed she was applying for a part time position. It was common ground that prior to applying for a position with the respondent the applicant had some six years' experience in the industry. It was agreed that initially she sought to work only two day shifts each week, Tuesdays and Wednesdays, but after she commenced she took on extra shifts to assist the respondent whilst it sought other staff. Because of Minnici's rather poor recollection of the events leading up to the termination, I am not satisfied that during the interview with the applicant he discussed how her rate of pay was made up or made any statement to indicate that holiday pay and sick leave pay were covered in the hourly rate to be paid to the applicant. Indeed, it was the applicant's evidence that on some two occasions when she took sick leave she tendered to the respondent copy medical certificates, although there was no documentary evidence that she was paid for any periods of sick leave taken by her. The applicant challenged the accuracy of the limited records produced to the Court by the respondent. This was because on her evidence she regularly queried how her cash payments were made up and, on receiving no satisfactory response, says that she did not pursue the matter further. The pay packets containing her cash wages given to her until the payroll was computerised in the last few weeks of her employment, contain no wages information. The wage record the respondent relied on (Exhibit R1) set out in part the hours worked and the monies received but on its face is an incomplete and erroneous record. For example, it shows the applicant worked a nine hour shift on Friday in the week nominated as 26 June 1996, yet it records her total hours worked for the week at thirty-one and a half hours. The respondent claimed that Exhibit R1 was a document the applicant was required to sign on receipt of her weekly cash payment and, as a consequence, she was aware of how the pay was calculated and verified the accuracy of the information. Notwithstanding this assertion, it was agreed by Michaux that after signing the wage sheet on the first two weeks, it was not signed again by the applicant during the currency of her employment. The explanation for this appears to be that the respondent did not take any steps to ensure that employees were shown the pay record on receipt of their payments and that they signed so as to acknowledge their receipt of the monies as well as verify the information contained in the written record. The computer payroll document (Exhibit R2) shows that from 1 July 1996 the wages information was recorded on the computer, although it does not show what days the applicant worked and the hours worked on each shift. That document appears to have been generated by a computer on 31 October 1996, well after the applicant's employment was terminated. The accuracy of that document was also challenged by the applicant because she was able to produce to the Court a pay slip (Exhibit A2) for the period ending 7 August 1996, her last pay, containing information which conflicts with the document the respondent tendered in evidence. It was the respondent's evidence that the applicant was paid pursuant to a federal award, the Vehicle Industry - Repair, Service and Retail - Award 1983 (Exhibit R6). It was also the respondent's evidence that it was a member of the VACC and paid the applicant according to the rate of payment notified to it by the VACC from time to time. To establish this it produced to the Court a document sent to it by the VACC which sets out pay rates for casual console operators (Exhibit R3) for the period from 27 March 1996 at the rate of $12.65 per hour. Michaux was cross-examined about the rates of pay paid and, as a result, it became apparent that the respondent did not pay the applicant at the rates recommended by the VACC for the full period of the applicant's employment. Neither did it appear to pay in accordance with any federal award rates. According to Michaux at some stage prior to 7 June 1996, the respondent ceased to be a member of the VACC but continued to pay the applicant at the old rate of $12.65 per hour as set out in Exhibit R3, rather than the new rate effective from 7 June 1996; namely, $13.60 per hour (see Exhibit A3). It was said by Michaux that when the respondent ceased to be a member of the VACC, it went on to a State award, which Michaux did not identify, and it continued to pay the applicant on the old VACC rate rather than the State award rates which she said were lower than those contained in Exhibit R3. The abovementioned evidence and the documentary evidence provided to the Court concerning the applicant's rates of pay, the payments made and the hours worked, do not consistently and clearly record how she was paid. This evidence suggests to me that the respondent's record keeping at the relevant time was at best sloppy. The inconsistencies in the evidence given by the respondent's witnesses also indicates to me that I should accept the applicant's evidence that she had difficulty in obtaining a clear statement of her earnings and the hours worked when she sought this information early in her employment. On the evidence I am satisfied that when the applicant was engaged she was engaged to work a regular two day shift each week and during the period of her employment she did work those shifts each week as well as additional shifts to assist the employer whilst it looked for other employees to fill, particularly, the Friday day shift at its Nottinghill station. When the applicant was engaged it was represented to her that she would have regular part time employment with the opportunity to do more shifts if asked. The issue of sick leave pay and holiday pay did not then arise. Given the inconsistencies in the evidence of the respondent's documents and witnesses, I am satisfied that the applicant may have submitted medical certificates for at least two periods of absence, however, because of the respondent's poor record keeping and its failure to give each employee proper and regular details of the hours worked and how their pay is calculated, it was not then apparent to the applicant that she was being treated as a casual employee (see the decision of Justice Moore in Reed v Blue Line Cruises Limited (unreported, IRCA, Moore J, 26 November 1996) for discussion of the meaning of the word "casual" in the context of Regulation 30B of the Industrial Relations Court Regulations). Therefore, on the jurisdictional question my finding is that the applicant was employed as a part time employee, despite the respondent's efforts to characterise her employment otherwise. It was common ground that in the latter part of July 1996 the applicant contacted Michaux and asked if she could train a girlfriend as a console operator. Michaux gave her permission to do this without giving any instructions as to how this was to be done and what responsibility the applicant had in supervising the girlfriend who was not an employee until such time as the respondent determined her suitability for a position. As a console operator the applicant was generally left in charge of the console and the sale to customers who purchased petrol of various goods such as cigarettes. There was evidence that site managers managed each station. At the Caltex station at Clayton where the applicant performed her regular day shifts, this person was identified as the mechanic Lorenzo Bianco. He did not give evidence. It was agreed that there was a person named "Hetty" who was employed by the respondent and Hetty's duties included from time to time pay roll duties, operating consoles and interviewing and employing console operators. Before the applicant commenced her employment she was required to undergo a training period with another console operator named Vesna. She was not paid during this period of training and once she was considered suitable she commenced her employment. It was the applicant's evidence that she obtained permission from the respondent to train her girlfriend, Nicole Cooper, with the view to her being accepted as a console operator. This was because the applicant did not want to continue performing the additional shifts, particularly at Nottinghill on Fridays, as they interfered with her domestic arrangements and because she was then in the early stages of her fourth pregnancy. She felt that if Nicole Cooper was suitable she could take over the applicant's shifts during the period the applicant was away having her baby. On the evidence I am satisfied that as a result of the permission given the applicant arranged for Nicole Cooper to speak to the person identified as Hetty who then was a person in a position to arrange for the training of a potential staff member. Cooper's evidence was that she was then looking for employment and spoke to Hetty by telephone and was asked questions during that conversation. She was informed by Hetty that when Minnici returned from his holidays she would get back to her. Within a few weeks of that conversation Cooper was informed by the applicant that she could start her training to see if she was a suitable candidate for employment as a console operator. Cooper attended on up to five occasions during the applicant's shifts, three of which attendances occurred at the service station also known as the Caltex service station. The remainder of her attendances were at the Nottinghill station where the site manager named George was in charge of the site. The attendances for training were not for more than relatively short periods. According to the applicant during the training of Cooper she was with Cooper most of the time except on one or two occasions when the applicant went to the toilet or the storeroom. On one other occasion she was instructed by George at Nottinghill to leave Cooper alone to operate the console so that both the applicant and George could watch Cooper's performance via the respondent's video surveillance equipment. The applicant's uncontested evidence was that there was video surveillance equipment operating at both the service stations she worked at and, because of this, she did not think anything of taking short absences from the console to go to the toilet, leaving Cooper in attendance. What is clear is that the respondent gave no instruction or direction to the applicant not to leave the trainee for any short period without locking up the station so that the trainee had no access to the console or any of the products on the counter. Cooper has also used the name Lisa Marie Spencer. On 29 October 1996 Lisa Marie Spencer was convicted (see Exhibits R4 and R5) in the Dandenong Magistrates' Court after pleading guilty to a number of charges including a charge alleging the unlawful possession of 128 Sale of the Century Cash Cards on 8 August 1996. It was not contested that Cooper had possession of the cards, however, there was some initial argument as to whether or not she was convicted of the theft of these cards from the respondent. Exhibits R4 and R5 indicate that there was a conviction recorded for unlawful possession. It seems to me that Cooper's attempts to deny the conviction really amounted to a denial of the theft of the cards, whilst conceding that they were in her possession at her home when the police raided her home in early August 1996 because of allegations that drugs were being sold from the premises. Senior Constable Dowling gave evidence that when the raid was conducted the cards were found and six of the cards had been scratched. The Court was told by the respondent that these cards were from its Caltex station and where part of a promotion conducted by Caltex with its service station proprietors. When a motorist purchased $10 worth of petrol they were given a written petrol receipt and a card. If they watched the program Sale of the Century and their numbers came up, on production of the $10 receipt for the petrol and the card, they were entitled to have their name placed in a barrel. If their name was drawn they could win up to $10,000 worth of prizes. It was urged on the Court by the respondent that the cards taken had a substantial value. It seems to me that without the $10 petrol receipt to attach to a card the value of each of the cards found in Cooper's home was negligible. It was the applicant's evidence that the cards were available on the console counter and could be picked up by customers at any time in any quantity, however, they were not valid without an accompanying petrol receipt. Because of the quantity involved when the police found the cards they suspected the cards were stolen. The police made enquiries with Caltex and also ascertained that Cooper had been training or, in the words of Senior Constable Dowling, "working on a part time basis at a Caltex service station". Cooper was interviewed by the police. No evidence was given by Senior Constable Dowling as to when that interview occurred. She was not charged until 8 August 1996 which was after the applicant had been dismissed. Senior Constable Dowling told the Court that Cooper's explanation given to the police was that the cards were left at her address by a friend whom she did not name. She was charged with theft and this charge was reduced to an unlawful possession charge to which Cooper pleaded guilty. At no stage did the police interview the applicant in relation to any alleged theft or any alleged unlawful possession charge made against Cooper. The unlawful possession charge was dealt with at the same time as some 300 or so charges laid against Cooper in relation to matters unconnected to the cards and the respondent. Michaux gave evidence that on or about 6 August 1996 she received a telephone call from a police constable stationed at Frankston police station who questioned her as to whether the respondent employed a Lisa Marie Spencer or a Nicole Cooper. She identified the constable as Constable Hemborough who she said also told her that a police raid of Cooper's premises on the previous evening had uncovered property belonging to the respondent's Caltex service station; namely, the Sale of the Century Cards. It was Michaux's evidence that the constable informed her that Cooper had admitted taking the cards from the service station she worked at with her girlfriend. This evidence conflicts with the evidence of Cooper and Senior Constable Dowling, the effect of which was that at no stage did Cooper admit taking the cards or taking them from the respondent's Caltex service station. After receiving the telephone call, Michaux rang Minnici on the same day and was instructed by Minnici to speak to the applicant and inform her that because Cooper was under her supervision, what had occurred was unacceptable and the applicant would not be offered any further shifts. It seems that both Minnici and Michaux when deciding to terminate the applicant's employment, did so on the assumption that Cooper had admitted taking the cards from the respondent's service station when obviously no such admission was ever made and they also did so in the belief that other unspecified goods may have been taken. It was common ground that on the same day as she was contacted by the police, Michaux carried out Minnici's instructions to terminate the applicant's employment. She did this by telephoning the applicant on her mobile telephone. It was agreed that the applicant was very upset during the telephone call and denied any knowledge of any theft or any other criminal activity Cooper may have been engaged in. The applicant complained about the unfairness of the decision to terminate her employment and also rang Minnici herself but was unable to persuade him to withdraw his decision to terminate her employment. This is a case where there is no evidence of any breach of duty or instruction, requiring the applicant to act any differently to the way in which she did act. She struck me as a conscientious, hard working woman who was harshly judged by her employer because of the company she kept and not because of any wrong doing or misconduct on her part. There was no evidence before the Court which in any way implicated the applicant in the removal of any cards by anyone from the respondent's Caltex service station during the applicant's shifts, three of which included attendances by Cooper. The video surveillance evidence may have established these matters conclusively, yet it was never tendered in evidence by the respondent. The respondent carries the burden of justifying the termination by reference to any matters of conduct or performance which provide a valid reason for terminating the applicant's employment. In this case I am not satisfied that it discharged that burden by establishing that there was misconduct on the part of the applicant, any failure to perform designated duties and any neglect of these duties. Put simply she was not in a position to know of, or forestall any theft if it did occur. Moreover, the items taken were available to the public to be taken in whatever quantities they chose to take them and the cards could only acquire a value once a $10 petrol receipt was attached to them. The fact that they may have been removed without permission is relevant, however, I am not satisfied that the respondent suffered any or any meaningful loss as a consequence of their removal if they were removed during the applicant's shifts. This is a factor which should have been considered by the respondent when it acted to terminate the applicant's employment without any proper investigation of the circumstances surrounding the alleged loss and without any meaningful opportunity afforded to the applicant to defend herself when the respondent was then of the view that other property may have been taken and it then believed, without any grounds for so believing, that the applicant may have been involved. Its approach was that if her girlfriend was a thief, it could not trust her to remain in its employment regardless of her unblemished character. My finding is that there was no valid reason for termination in the sense that the reasons advanced for termination provided any sound, defensible or well founded reasons for termination. REMEDY The applicant has not been employed since her employment was unlawfully terminated. She does not seek reinstatement but seeks compensation. At the end of the hearing the applicant sought to rely on the loss of deposit monies on the purchase of her home and land package and the loss of creche fees brought about, she said, by the untimely termination of her employment. The lastmentioned items were not properly canvassed in the evidence and, therefore, I am unable to consider them as items that might otherwise have been considered relevant to the assessment of the losses suffered by reason of any unlawful termination of her employment. Both Michaux and Minnici attempted to portray the applicant as an employee whose performance had not been consistently good. I am not satisfied that the applicant's performance was of concern to the respondent at any time or that it was such that she could not have expected to have continued performing her regular shifts until at least shortly before the birth of her fourth child at the end of January 1997, with the added expectation of returning to work shortly after the birth of her child for at least the two day shifts she was engaged to perform. Both the applicant and her husband had by August 1996 committed themselves to a contract for the purchase of land and a house and her continuing employment was a factor in obtaining a loan to complete the purchase. Because of this the applicant had a strong incentive to work both up to and shortly after the birth of her child. When her employment ceased the applicant claimed that she went to the CES and when she explained that she had been dismissed because someone else had taken the employer's property, she was told by the CES to wait to apply for a job until after her Industrial Relations Court claim was finalised. There are a number of matters which appear to have influenced the applicant's decision not to apply for employment, apart from a visit to a Shell service station because she had worked with Shell previously to see if there was work available at that service station and to regularly scan the newspapers for jobs which might suit her. It was her evidence that no suitable jobs were advertised between the date of the termination and the date of hearing. The first matter is the way in which the dismissal occurred. If she was truthful with prospective employers then until exonerated by this Court the applicant was in the unhappy position of having to say she was terminated because her friend allegedly stole property from the employer whilst she was being trained by the applicant. The next matter was that the applicant was approximately four months' pregnant at the date of termination and, realistically speaking, the fact that she was pregnant could make the applicant a less attractive employee to employers who were seeking to offer permanent and regular part time employment. Another related matter was the extent to which the pregnancy would inevitably preclude the applicant from working during a period of some weeks prior to her confinement and for a period of some six weeks after the birth when the applicant says she would have been ready to resume work as she had previously done after her earlier pregnancies. I accept the respondent's submission that, as a general rule, an employee should test the employment market in order to mitigate their loss. However, in judging whether an employee has acted reasonably in taking steps to find alternative employment, the position the employee is put in as a consequence of the employer's conduct is a relevant consideration. In this case the applicant's chances in the workforce were prejudiced by the way in which the termination occurred. At termination the respondent knew the applicant was pregnant and it would have been aware, if it had turned its mind to these considerations, of the obstacle to obtaining new employment for the short period between the date of termination and the birth the pregnancy may pose. This is a case where I am satisfied that reinstatement is impracticable and I am further satisfied that I should make an order for appropriate compensation. The unsatisfactory nature of the respondent's records makes it difficult to confidently determine an average of the hours worked by the applicant. It appears to have been accepted that she was working three to four shifts each week from June onwards. The evidence suggests that in July the respondent was looking to replace the applicant on at least the Friday shift at Nottinghill and she was keen for this to happen. Accordingly, I have assessed compensation on the basis that it was likely that the applicant would have continued to work four shifts each week for a further two months and three shifts thereafter until Christmas which was some six weeks prior to her confinement. In the six months subsequent to termination the applicant's loss up to Christmas was fourteen shifts in August, seventeen shifts in September, fifteen shifts in October, twelve shifts in November and eleven shifts in December, totalling sixty-nine shifts. The day shift worked by the applicant involved a nine hour shift and, therefore, the gross loss calculated at $12.65 per hour is $7,855.65. It is appropriate to discount this sum by reason of the applicant's failure to actually apply for alternative employment, apart from making one enquiry at the local Shell service station. Accordingly, I propose to make an order that the respondent pay compensation in sum of $7,400. In assessing compensation I have taken into account the period following termination during which time the employer was required to give the employee the equivalent of one week's compensation in lieu of notice. Accordingly, I propose to make no order for damages pursuant to section 170DB of the Act, having already included that sum in my calculation of the appropriate compensation payable. MINUTES OF ORDERS THE COURT DECLARES THAT: 1. On 6 August 1996 the respondent terminated the applicant's employment in contravention of the Workplace Relations Act 1996. AND THE COURT ORDERS THAT: 2. Within 21 days of the date of making these orders the respondent pay to the applicant compensation in the sum of $7,400. 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 twenty (20) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 4 April 1997 Applicant in person. Solicitors for the Respondent: Russo Pellicano Carlei Counsel for the Respondent: Mr D. Burnett Date of hearing: 17 and 19 March 1997 Date of judgment: 4 April 1997