HALL -v- ARTWORKS IN BRONZE PTY LTD [1997] IRCA 131

DECISION NO:131/97 C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - one written warning re performance - "countless" oral warnings - despite written warning and oral warnings Respondent relied on Applicant to perform many tasks allocated to her for 13 months after written warning - relief staff discovered extensive backlogs while Applicant on leave - Respondent prepared written letter of termination and advised Applicant of termination of employment by telephone before Applicant returned from leave - grounds for the termination were not put to the Applicant until telephone call advising dismissal - held the Applicant must have known and did know performance inadequate for a long time - Applicant had no opportunity to respond to formal and final allegations - breach of section 170DC but not appropriate in circumstances to order compensation Workplace Relations Act 1996 ss.170DC, DE, EA, EE. HALL -v- ARTWORKS IN BRONZE PTY LTD No. VI-2400 of 1996 Before: Ryan JR Place: Melbourne Date: 19 March 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-2400 of 1996 B E T W E E N : DEBRA ANN HALL Applicant AND ARTWORKS IN BRONZE PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Ryan 19 March 1997 THE COURT ORDERS: 1. That the Application be dismissed. 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-2400 of 1996 B E T W E E N : DEBRA ANN HALL Applicant AND ARTWORKS IN BRONZE PTY LTD Respondent Before: Ryan JR Place: Melbourne Date: 19 March 1997 REASONS FOR JUDGMENT (Delivered ex tempore) (Revised from transcript) The Applicant seeks compensation for what she claims was unlawful termination of her employment. She appears to have performed a reasonably wide range of office duties for the Respondent company which operates a casting foundry producing fine art often on behalf of other artists. The Managing Director of the Respondent company described the work as "artists working for artists". The Applicant acted as a receptionist. She also was responsible for some but not all job cards, time sheets, personnel and pay for about 13 staff, some job costings and quotations, general office work and banking. She was the Administration Officer for the company. She worked for the Respondent from 26 March 1991 to 26 August 1996. The Applicant was represented by Mr McDonald of McDonald Murholme Solicitor. Eric Hanby, a director, conducted the case on behalf of the Respondent. The Managing Director, Peter De Garis, was present. Messrs De Garis and Hanby and the Applicant gave evidence. It is obvious from the evidence of Mr De Garis that while he was managing director he was not particularly skilled in management. Mr De Garis is a sculptor with post graduate qualifications from the Victorian College of the Arts. The Court has no reason to conclude that he is anything other than skilled and competent in the professional, technical, "hands on", artistic side of the business. His own evidence suggests that he left most of the day to day invoicing and payment of accounts to the Applicant. The Respondent company operated as a small highly specialist business where most, and perhaps all, employees and the two principal directors operated on the basis of mutual trust. I have concluded that Messrs Hanby and De Garis, and especially the latter, placed considerable trust in the Applicant and continued to place considerable trust in her even after she was given a detailed written warning for unsatisfactory work performance on 3 July 1995. I also accept the evidence of Mr De Garis that he gave the Applicant countless verbal, that is, oral warnings. I doubt that these oral warnings were direct or precise. I have concluded that the oral warnings were in general, imprecise, indirect and inadequate terms, but I have nevertheless concluded that Mr De Garis gave such warnings and that he gave them often after the written warning of 3 July 1995. Despite these warnings and, indeed, the dismissive approach to them taken by the Applicant, Mr De Garis continued to place considerable trust in the Applicant. This approach was not justified and reflects poorly on Mr De Garis. His "countless" oral warnings suggest that he had some awareness that the Applicant was failing to perform her duties adequately. Despite that, he continued to rely on the Applicant to perform the many tasks allocated to her. The written warning of 3 July 1995 (Exhibit A2) reads as follows: "Dear Debbie