ANASTASAS v CARILLON KEBABS [1997] IRCA 141

DECISION NO:141/97 CATCHWORDS INDUSTRIAL LAW -. determination whether TERMINATION OF EMPLOYMENT or whether employee handed in RESIGNATION - complaint of UNLAWFUL TERMINATION - was employment CASUAL EMPLOYMENT - COMPENSATION - Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170DB, DC, DE(1), EE(2) and (3), Regulation 30B Jones v Dunkel 1959 101 CLR 298 Reed v Blue Line Cruises Limited, unreported, IRCA 571/96, Moore J, 26 November 1996 ANASTASAS -v- CARILLON KEBABS WI 1468 of 1996 Before : BOON JR Place : PERTH Date of Judgment : 2 MAY 1997

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WI 1468 of 1996 B E T W E E N: MARIA ANASTASAS Applicant A N D: PAUL SANOULIS, TRIANTAFILOS SANOULIS, ELETHERIA SANOULIS, EFFIE KAZANTSIDIS, DIMITRI KAZANTSIDIS trading as CARILLON KEBABS Respondent MINUTE OF ORDERS 2 MAY 1997 PERTH BOON JR THE COURT ORDERS THAT: 1. The respondent pay to the applicant the sum of $795 by way of payment in lieu of notice. 2. The respondent pay to the applicant the sum of $6,490 by way of compensation for the unlawful termination of her employment. 3. These amounts be paid within 28 days of the date of this order. 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 ) WESTERN AUSTRALIA DISTRICT REGISTRY ) WI 1468 of 1996 B E T W E E N: MARIA ANASTASAS Applicant A N D: PAUL SANOULIS, TRIANTAFILOS SANOULIS, ELETHERIA SANOULIS, EFFIE KAZANTSIDIS, DIMITRI KAZANTSIDIS trading as CARILLON KEBABS Respondent Before: Boon JR Place: Perth Date: 2 May 1997 REASONS FOR JUDGMENT INTRODUCTION This is an application under section 170EA of the Workplace Relations Act 1996 (previously Industrial Relations Act 1988) (the Act). The applicant, Maria Anastasas, is seeking payment of compensation arising out of the alleged unlawful termination of her employment by the respondent, Carillon Kebabs. It is alleged that Carillon Kebabs, in terminating the employment of Ms Anastasas, breached the provisions of the Act in a number of ways. It is said that Ms Anastasas was given no notice of the termination as required by section 170DB; she was not given an opportunity to respond to any allegations against her conduct or performance as required by the provisions of section 170DC; and there was no valid reason for the termination of her employment as required by the provisions of section 170DE(1) of the Act. The respondent's main defence to these allegations is that there was no termination of Ms Anastasas' employment at the initiative of the employer and says that Ms Anastasas resigned. It is common ground that the main issue in this matter is whether or not Ms Anastasas resigned or whether her employment was terminated, and that if this Court finds that there was a resignation rather than a termination at the initiative of the employer, then this Court has no jurisdiction to determine the application. In addition, it is alleged that Ms Anastasas was excluded by the provisions of Regulation 30B of the Regulations in that she was a casual employee engaged for a short period. THE EVIDENCE Carillon Kebabs was a partnership comprised of Paul Sanoulis, Triantafilos Sanoulis (also known as Ross Sanoulis), Eletheria Sanoulis, Effie Kazantsidis and Dimitri Kazantsidis. Ross and Eletheria Sanoulis are the parents of Paul Sanoulis and Effie Kazantsidis. Dimitri Kazantsidis is the husband of Effie Kazantsidis. Carillon Kebabs conducted a food stall from premises in a food hall situated at the Carillon Arcade, Hay Street, Perth. Maria Anastasas Ms Anastasas is a 49-year old woman who was born in Greece and arrived in Australia in 1968. Her only education consisted of five years at primary school. She did six years of unskilled factory work until she gave birth to her two children. When her children went to high school, she entered the paid work force again. Ms Anastasas said that she worked briefly for Carillon Kebabs in 1986 and then again in 1990. In 1993 she started work on a permanent basis at a nursing home hostel for elderly people. She said that Mr Ross Sanoulis contacted her and offered her a permanent position at Carillon Kebabs. She started work with Carillon Kebabs in September 1993. According to Ms Anastasas she worked at Carillon Kebabs five days per week, Monday to Friday, approximately between the hours of 10 am and 3 pm. Her normal wages were around $265 gross per week. She did some weekend work and sometimes finished after 3 pm. Her position was that of kitchen hand and counter hand. It involved preparing and selling the food. According to Ms Anastasas, she started to experience pain in her shoulders during 1994. She reported the incident to Mr and Mrs Sanoulis and Mr Sanoulis told her that he did not have any workers' compensation insurance and that she should be careful. She saw her doctor but she did not have money to pay for physiotherapy. Ms Anastasas said that when she first started working for Carillon Kebabs she was paid $9 per hour and did not pay tax. Ms Anastasas said that towards the end of 1994 she said to Mr and Mrs Sanoulis that she wanted to be "in the clear" and wanted to pay tax and was told to wait for Mr Paul Sanoulis to return from overseas. When Paul Sanoulis returned to Perth, he arranged through the firm's accountant for Ms Anastasas to be placed on the books and to start paying tax. Ms Anastasas said that the accountant, Lydia Skokleski, told her that she was working as a casual employee and would be paid at the rate of $11 per hour. Ms Anastasas said that at first there was no reaction from Mr and Mrs Sanoulis about her paying tax. After the first month, however, Mr Ross Sanoulis would not talk to her and became angry because of the tax issue. Ms Anastasas said that Mr Ross Sanoulis became so angry that for several weeks he reduced her working hours to three hours per day, Monday to Friday. He also changed her duties. Mr Ross Sanoulis reduced her rate of pay to $9 per hour and said that she had to be paid as a part-time employee. Ms Anastasas said that she was confused as to whether she was casual or part-time. The wages records of Carillon Kebabs confirm that for a short period in early 1995 Ms Anastasas was paid at the rate of $9 per hour and worked reduced hours. Ms Anastasas said that shortly before the hearing in this matter she went to the Australian Taxation Office and declared the income she had earned between September 1993 and the end of 1994, and had to pay a $3,000 tax bill in relation to that period. Ms Anastasas gave evidence that she worked at Carillon Kebabs without a break from September 1993 until 25 September 1995. She said that she wanted to take some days off between 1993 and 1994, but was unable to because Carillon Kebabs did not have another worker. Mrs Sanoulis and Ross Sanoulis also worked in the shop and there was one other employee who worked at night to do the cleaning after 5 pm. Ms Anastasas said that in June 1995, Mr Ross Sanoulis and Mrs Sanoulis went away on holiday to Greece. According to Ms Anastasas, Mrs Sanoulis asked if Ms Anastasas could take care of the business with her son, Paul Sanoulis. Mr and Mrs Sanoulis were away in Greece for approximately three months. Paul Sanoulis and his girlfriend, Irena Morris, worked in the shop. Ms Anastasas said that Paul Sanoulis was easier to work for than his parents. Ms Anastasas, however, had to work some increased hours because she was asked to arrive early and open the shop. Ms Anastasas said that before Mr and Mrs Sanoulis returned from their holidays, she asked Paul Sanoulis if she could take a month off to relax when his parents returned from Greece. She said that one of her reasons for taking a month off was that she was suffering pain from her injury. According to Ms Anastasas she told Paul Sanoulis that she was feeling tired and wanted to relax. She said that Paul Sanoulis asked what she would do for that month and she replied that she might go to Adelaide to see her husband's godmother or stay at home and relax. According to Ms Anastasas, when Mr and Mrs Sanoulis returned to Perth in September, she asked Mr Ross Sanoulis whether she could take a month off. Mr Ross Sanoulis said to her "you wouldn't like to come back when you take a month off, would you" and Ms Anastasas replied "no, that's not going to happen, of course I'm going to return". Ms Anastasas then said Mr Ross Sanoulis said "give us one week notice so we can - give us another week to find another lady. At the time I didn't think that was anything wrong with that, find another lady to work in the shop because we had to work hard, the three of us. So I gave them a week notice. Well not notice actually. I gave them another week. They found another lady and they took off and I say I see you after one month, gentlemen - I mean to Mr and Mrs Sanoulis". This was on Friday, 25 September, when she finished work. Ms Anastasas said that when she left on 25 September 1995, she left some clothes which she wore when she was cleaning the shop. She left behind trousers, earrings, blouses and a pair of shoes. She left them there because she was planning to return to work there. During her month off work, she visited Mrs Sanoulis at the shop and picked up some earrings. Mrs Sanoulis asked her to clean the shop for them and according to Ms Anastasas she said to Mrs Sanoulis, "what about your husband? He can clean the shop. After all, I'm on the month off now relaxing". Ms Anastasas said that five days before she was due to return to work she telephoned Mrs Sanoulis and said "it's time for me next week to start work". As Mrs Sanoulis did not say much, she went into the shop and spoke to Mr Sanoulis. This was on about 20 October 1995. She said to Mr Sanoulis "I start work next week". Mr Sanoulis said "Oh, I'm going to sell the business and the company is going to buy it and they've got their own staff". Ms Anastasas understood from that conversation that the company which owned the whole of Carillon Arcade was going to buy Carillon Kebabs. Mr Sanoulis told Ms Anastasas to take her belongings and she was very unhappy and hurt but felt there was nothing she could do about it. Ms Anastasas said that before Mr and Mrs Sanoulis went for their holiday, Mr Sanoulis tried to complicate matters for her and accused her of various things. Ms Anastasas said that she thought Mr Sanoulis wanted her to leave. Mr Sanoulis said to her "you think I can't sack you" and Ms Anastasas had replied "no, you can't". Ms Anastasas said that when she started paying tax, for some reason Mr Sanoulis tried to make her leave the job. In relation to allegations made on behalf of the respondent that Ms Anastasas had indicated that she voluntarily left her employment because she was concerned about the effect of her earnings on her husband's pension, Ms Anastasas said that she did discuss that with various people she worked with at Carillon Kebabs but that was well before she left for her holiday. By the time she left on 25 September 1995 she knew that her earnings would not cause a problem for her husband. Ms Anastasas said that after Mr Ross Sanoulis told her on 20 October 1995 to take her belongings and leave, she went to see the Social Security Department and was told to go and register herself with the Commonwealth Employment Service (the CES). She was registered on 23 October 1995. She told the Department of Social Security that she took a month off to relax and the Department told her that they could not pay her for that month. They did however pay Ms Anastasas JobSearch allowance from the date of her application on 23 October 1995. She was told by the CES that if she had resigned from her employment she would not have received any JobSearch allowance until about Christmas time. The CES asked her to bring a letter from Carillon Kebabs to state when she finished work there. Paul Sanoulis wrote out a letter for her and she took it to Social Security. Documents tendered on behalf of Ms Anastasas confirmed that Ms Anastasas started receiving JobSearch allowance from 30 October 1995. In November or December 1995 Ms Anastasas went to Paul Sanoulis who wrote out a reference for her. This was because she had to look for suitable employment whilst she was receiving JobSearch allowance. The reference written by Paul Sanoulis was in very complementary terms. Ms Anastasas said that she went shopping in the city before Christmas 1995 and noticed that Mr Sanoulis had not sold his business. She went to see the manager of the Carillon Arcade and discovered that the Arcade had not bought Carillon Kebabs from the Sanoulis family. She received confirmation from James Lang Wootton to that effect by letter dated 15 February 1996. Ms Anastasas said she went to see Mr Ross Sanoulis and asked to have a talk. Mr Sanoulis refused to speak to her. She told Mr Sanoulis "you're going to hear from my lawyer", even though she did not have a lawyer at that time. Ms Anastasas said that she went to Legal Aid for advice and they wrote a letter of demand. In March 1996 she filed an application with the Australian Industrial Relations Commission. During cross examination Ms Anastasas admitted that she signed the wage books which stated that she was a casual employee. She said however that she was confused because at one stage Mr Ross Sanoulis told her that she was being paid as a part-time employee. In addition, the reference Paul Sanoulis wrote for her stated that she was a part-time and casual employee. Ms Anastasas denied that she told Mr Paul Sanoulis that she wanted to resign. She maintained throughout her evidence that she wanted to merely take a month off. During cross examination Ms Anastasas said that she discussed with Irena Morris and Athena Kalintsis the effect her income may have on her husband's entitlement to his pension. She discussed this before she found out that she could continue to work without it affecting her husband's pension. Ms Anastasas said that well before she left on 25 September 1995 she knew that it had been sorted out with Social Security. She said that she told many people at Carillon Kebabs and those who worked at the food hall that she was going to take a month off and go on a holiday. Ms Anastasas said that she enjoyed a good social relationship with Mr and Mrs Sanoulis but they did not socialise together outside of work. Mr Ross Sanoulis however did not treat her in a friendly manner at work, and often criticised her work. While Mr and Mrs Sanoulis were away, Ms Anastasas had more responsibility and worked longer hours but it was more peaceful and Paul Sanoulis did not "growl" at her. Ms Anastasas said in cross examination that she would not discuss plans with Paul Sanoulis about her employment as all her discussions had always been with Mr Ross Sanoulis. She said she and Mr Ross Sanoulis had made a deal about her permanent employment. She only discussed the question of a holiday with Paul Sanoulis. In cross examination Ms Anastasas said that she knew after the conversation on 20 October 1995 with Mr Ross Sanoulis that she was dismissed because Mr Sanoulis had told her that he was selling the business and the purchasers had their own staff. According to Ms Anastasas, Mrs Sanoulis was not present during that conversation. Ms Anastasas said that she only took action when she discovered that Mr Sanoulis had lied to her. She said that she did not find out until February 1996 that Carillon Kebabs had workers' compensation insurance and that was when she made a claim in relation to her work-related injury. The doctor had told her later that the condition was work related. A medical report from a medical practitioner who treated Ms Anastasas confirmed that she consulted him in June 1994. Ms Anastasas could not remember Ms Skokleski telling her that she was covered by workers' compensation. Eletheria Sanoulis Mrs Sanoulis gave evidence that she was born on 28 July 1934 in Greece. She has been in Australia for 28 years but cannot speak English. Mrs Sanoulis gave her evidence through an interpreter. She said that she can neither read nor write and has never been to school. In 1994 when she became ill she expanded the partnership to include her children. Carillon Kebabs was sold in December 1996. Mrs Sanoulis said that in 1995 she and her husband left Australia on 9 June and returned on 11 September. According to Mrs Sanoulis, Ms Anastasas was a casual employee. When asked how she found Ms Anastasas as an employee, Mrs Sanoulis replied "I didn't form any particular opinion" . . ."if you tell me what opinion you want I will give it to you". Mrs Sanoulis said that about a week after she returned from Greece she saw Ms Anastasas at the shop and they "spoke about the fact that the issue that she wanted to stop work". Mrs Sanoulis said that Ms Anastasas told her that her husband stopped working at the railways and they wanted to get the pension. This was not put to Ms Anastasas in cross examination. Mrs Sanoulis said that a week and a half after Ms Anastasas left, she called Mrs Sanoulis over the phone and asked for a letter to take into Social Security. Paul Sanoulis prepared the letter. About a month later Ms Anastasas phoned and asked for a reference and once again Paul Anastasas wrote the reference. According to Mrs Sanoulis, after Christmas Ms Anastasas returned and said "I want my job". Mr Sanoulis told her that they had a woman but could give her two hours in the afternoon to fry the eggs and felafel. Ms Anastasas did not accept that and wanted her old job back. Ms Anastasas returned on another occasion and asked again for her job and Mr Sanoulis offered her weekend work which was declined. Once again this was not specifically put to Ms Anastasas. Mrs Sanoulis said that when Ms Anastasas came into collect her belongings she was a bit angry and wanted Mr and Mrs Sanoulis to get rid of the woman they had working for them and give her back her job. Mrs Sanoulis said that this conversation took place after Christmas. During cross examination, Mrs Sanoulis said that she could not remember whether Ms Anastasas worked in the shop in 1994. She said that they used to take her to work when they had work and would not have her when they did not have work. She said on many occasions that she could not remember everything and referred to the fact that she was 63 years old and illiterate. Mrs Sanoulis said that during 1995 Ms Anastasas worked ten weeks in total but she could not remember dates. When it was put to her that Ms Anastasas had worked every week in 1995 up to 25 September 1995, Mrs Sanoulis said that she could not remember. In cross examination Mrs Sanoulis was asked whether Ms Anastasas was paid $9 per hour when she first started working at Carillon Kebabs. Mrs Sanoulis was very clear in her evidence that there was an agreement that she would be paid $10 per hour. She said that Ms Anastasas was paid in cash from the till. There were no payments recorded in the wages book. She said that they did not register her for tax because Ms Anastasas said that her husband had declared at the railways that his wife was not working. Mrs Sanoulis said that all of the income of the partnership was written in the books. Mrs Sanoulis maintained that in the 1993/1994 financial year and the 1994/1995 financial year the partnership declared all of its income and all of its expenses. Mrs Sanoulis said that her accountant knew what happened. She said that she could not remember about amended tax returns for those two financial years. Mrs Sanoulis stated that during all the years of its operation, Carillon Kebabs had workers' compensation insurance. Mrs Sanoulis admitted that when Ms Anastasas left in September she left a pair of thongs under a bench and a pair of earrings in a box on a shelf. She said that she did not see a blouse or a pair of trousers at the shop. She said that they all made a decision to put Ms Anastasas on the books because Mrs Sanoulis and her husband understood that they had made a mistake and had to register Ms Anastasas. She said that the decision was made by Ms Anastasas, Mr Sanoulis and Mrs Sanoulis together. Mrs Sanoulis said that she herself was the one who had the idea to put Ms Anastasas on the books. She said she spoke with somebody and he told her to do it. When asked who told her that, Mrs Sanoulis said "it wasn't anybody who suggested it. It was like that or you chat with people and it wasn't a precise person". Ross Sanoulis Mr Ross Sanoulis did not give evidence at the hearing of this matter. The Court was provided with a certificate from his medical practitioner stating that Mr Sanoulis should not give evidence because of his ill health. Counsel for the applicant, Mr M Rennie, indicated that the applicant accepted that Mr Sanoulis was too ill to give evidence. Accordingly, the rule in Jones v Dunkel 1959 101 CLR 298 does not apply because the failure by Mr Ross Sanoulis to give evidence is not unexplained. It is not appropriate in this case to infer that Mr Ross Sanoulis' evidence would not have assisted the respondents' case. It is still however open to this Court to accept the evidence of Ms Anastasas in relation to her conversation with Ross Sanoulis.