DECISION NO:190/97 CATCHWORDS TERMINATION OF EMPLOYMENT - Alleged UNLAWFUL TERMINATION - Whether employment was terminated by employer or employee - Issue depends on questions of fact - Quantum of compensation. Workplace Relations Act 1996, s 170EA SEAN THOMAS v PAUL SILVESTRO t/as HOLROYD SMASH REPAIRS No. NI.96/1693R CORAM: WILCOX CJ PLACE: SYDNEY DATE: 9 MAY 1997 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 96/1693R ) NEW SOUTH WALES DISTRICT REGISTRY ) BETWEEN: SEAN THOMAS Applicant AND: PAUL SILVESTRO t/as HOLROYD SMASH REPAIRS Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 9 MAY 1997 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The application for review be allowed. 2. The decision of the Judicial Registrar be set aside and, in lieu thereof, it be ordered that the respondent, Paul Silvestro trading as Holroyd Smash Repairs, pay to the applicant, Sean Thomas, the sum of five thousand dollars ($5,000). Of that sum, two thousand dollars ($2,000) is to be paid within 21 days and the balance within a further 21 days. In the event of the first instalment not being paid by the due date, the balance will become immediately payable. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 96/1693R ) NEW SOUTH WALES DISTRICT REGISTRY ) BETWEEN: SEAN THOMAS Applicant AND:PAUL SILVESTRO t/as HOLROYD SMASH REPAIRS Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 9 MAY 1997 EXTEMPORE REASONS FOR JUDGMENT WILCOX CJ: When this matter was opened this morning it appeared there were a number of issues. There was a question whether or not the applicant was a casual employee, and thus excluded from the benefits of Division 3 of Part VIA of the Industrial Relations Act 1988. There was also a question whether he was employed on probation at the time of his termination. After discussion and reference to the relevant award, both these points were abandoned. It quickly became obvious that the only real issue, in relation to liability, was whether the employment was terminated by the employer, who operates a smash repair business at Merrylands, or by the applicant himself. The applicant was employed as a car detailer by the respondent. There was no suggestion that, if the employment was terminated by the employer, then the evidence established a valid reason for termination. The issue of resignation or dismissal turned out to depend upon which version of two quite separate accounts of the matter the Court accepted. The versions differed even as to the day when termination occurred. According to the employer's case, at some time no later than lunch time on Thursday 24 April 1996, the applicant, Sean Thomas, said in the hearing of his employer, Mr Silvestro, and the foreman, Mr Trinder, that he had "had enough" of the job and was leaving. According to this version of the matter, Mr Silvestro told Mr Thomas that, if that was how he felt, he should see "Debbie" (Ms Debbie Hall, who was the secretary/receptionist) and have his pay made up. Mr Thomas was said then to have spoken to Ms Hall and told her he was leaving, whereupon she took action to make up his pay, ready to give to him later that day. It is common ground that, some time in the afternoon, Mr Thomas injured his left hand whilst washing or polishing a car. Apparently there was a broken radio aerial and this lacerated his hand. It is also common ground that he sought medical advice. There was a medical surgery opposite the repair yard. Mr Thomas said he went there and the doctor told him his hand needed suturing but the surgery did not have suture material available at that time. Mr Thomas came back to the yard and, after speaking to Mr Trinder, went to another medical surgery that was about three blocks away down Merrylands Road. There the wound was sutured. Mr Thomas said he then returned to work and finished the job on the car, although it meant he was there rather later than most staff. He said that, during this time, Mr Trinder handed him his pay packet. The following day was Anzac Day and, of course, a public holiday. According to Mr Thomas, he came to work the day after Anzac Day, that is, Friday 26 April. He worked that day, although with difficulty because of his injured hand. He said Mr Silvestro noticed he was working slowly and spoke to him about this; Mr Thomas replied he "could be off work with a medical report". Mr Silvestro asked him whether he had a medical report ; he said no, he would get one. Mr Thomas said Mr Silvestro told him to get the report at lunch time, rather than during working hours. Mr Thomas said he went to the surgery during lunch time and obtained a medical certificate. A medical certificate is in evidence. It is signed by a Dr Dalgleish of 333 Merrylands Road, Merrylands, the surgery that Mr Thomas says he attended on 24 April. In the certificate, Dr Dalgleish says he saw Mr Thomas on 24 April 1996 and Mr Thomas was suffering from a laceration to the left hand. There is a word I cannot read but I think it indicates the palm of the hand, which was the place Mr Thomas identified during the course of his evidence. Dr Dalgleish also said Mr Thomas was fit for "suitable duties", as distinct from "normal duties", until 3 May, with a restriction to keep the hand dry and avoid heavy usage of it. Mr Thomas said that, after obtaining the certificate, he returned to work but Mr Silvestro was not there so he did not do anything with the certificate that day. He came to work the following morning, Saturday 27 April, but found there was little work to do. He was suffering considerable pain in his hand so he left the medical certificate and went home. He did not come to work on the Monday, but he received a telephone call from Mr Silvestro that night, during which Mr Silvestro told him his employment was terminated. It will be apparent there are vast discrepancies between the two accounts. The case reminded me again of the difficulty of deciding cases on the basis of demeanour. I was favourably impressed with Mr Thomas. He seemed to me a sincere, intelligent person who did his best to give evidence accurately. He was uncertain about some details, but this did not affect my view of his honesty. The details were not things I would expect any witness to remember precisely. Mr Thomas may have been wrong about some aspects of his evidence; but I thought he was honest and doing his best to tell the truth. I thought many of the responses he made in cross-examination had a ring of truth about them. For example, I was impressed with his statement, which he did not need to advance, that when he got back from the doctor's surgery after having his hand sutured, it was Mr Trinder who handed him his pay packet. It subsequently turned out, from the evidence of Ms Hall, that she left the yard at 4pm that day. It is probable that Mr Thomas was still at the medical centre at 4pm. In that situation, it would be the most natural thing in the world for Ms Hall to have given the pay packet to Mr Trinder, to pass on to Mr Thomas. When Mr Trinder was asked about that, he said it did not happen. However, he said on about three occasions that he had "nothing to do with the pay". I formed the view that Mr Trinder was an honest person, but he indulged in a good deal of reasoning backwards from normal practice and deducing what he thought would have been the normal thing to have done, rather than addressing his mind to whether he had a particular recollection. I also thought Ms Hall was an honest witness, but it is obvious that she was incorrect in one major matter. She gave affidavit evidence that she made up Mr Thomas' pay only until the Tuesday night; the reason being that, as Mr Thomas was a casual, she did not know how long he would work on the Wednesday. However, two comments may be made about that. First, whether or not Mr Thomas was classified as a casual, the records of the company show that, apart from his first week, in each week of his employment with the respondent he worked 38 normal hours and a number of hours overtime. It was therefore predictable that, in his eighth week of employment, he would work the full Wednesday. The second matter is that counsel took Ms Hall through the records and pointed out he had been paid for five days, whereas it would have been just four days had he been paid only until the Tuesday night. Ms Hall then accepted that she did pay Mr Thomas for the Wednesday. The point has some significance. It is common ground that, on 6 May, Mr Thomas returned to the yard and sought an employment separation certificate, which was handed to him. The certificate showed the last day of work as being 26 April 1996, a date that is consistent with Mr Thomas' story. This date was written by Ms Hall, as she acknowledges. It is also agreed that, on 6 May, Mr Thomas was paid $164 for two days. Although this was shown on the certificate as annual holidays, it seems to be common ground that it was not paid for that reason; the employer's justification being that, as a casual, he was not entitled to annual holidays. Ms Hall was at first inclined to say that the two relevant days were Wednesday 24 April (the day of the injury), for which he had not been paid although he had worked, and Anzac Day. She said (and indeed Mr Silvestro said the same thing) that, where an employee was departing on the day before a public holiday, it was the policy of the business to pay the person for the public holiday. However, once it is seen that Mr Thomas was in fact paid for his work on 24 April, the question arises as to the identity of the two days. Anzac Day was clearly one. It would be consistent with Mr Thomas' story, but not the employer's version, to say the second day was 26 April. Ms Hall did not agree that Mr Thomas worked on 26 April. She accepted this was one of the two days for which she paid Mr Thomas on 6 May, but said she assumed he worked that day because he said he had done so. However, a little later in her evidence, it emerged that, on the intervening pay day, Thursday 2 May, Ms Hall checked the date upon which Mr Thomas had last worked by reference to the bundy cards which she then had, but which have since been destroyed. She did this for the purpose of determining whether Mr Thomas was entitled to any further pay. On her approach, of course, he was entitled to one day, being Anzac Day. Notwithstanding this, she did not send him the money for that day. She said she assumed he would come in for an employment separation certificate. Why she assumed that was not explained, given Mr Silvestro's evidence that it was quite rare for people to ask for such a certificate. However, accepting her evidence as to the assumption, I note Ms Hall's further evidence that, on 2 May, she ascertained that Mr Thomas did not work after 25 April. This means that on Thursday, 2 May, having checked the matter, she was aware he did not work on 26 April but finished up on 24 April. Yet, on the following Monday, she completed a certificate showing 26 April as the last day for work. Worse, from the employer's point of view, she paid him for that day. As I say, demeanour is an untrustworthy guide. I think the safest course is to look at the contemporaneous documents. None of them conflicts with any aspect of the applicant's case. The medical certificate ties in with his evidence; likewise the employment separation certificate. The respondent's case is in conflict with the employment separation certificate prepared by Ms Hall on a date very shortly after the relevant events, and involves accepting that Ms Hall paid Mr Thomas for a day when he did not in fact work, she having recently checked that very matter. On the basis of the documents, I have come to the conclusion I should accept the applicant's case. However, I should mention two or three other matters. First, it seems inherently unlikely that, on the morning of 24 April, without any incident having recently occurred, Mr Thomas would have suddenly decided he had had enough of the job and was leaving. It is true that, on occasions during his employment, there had been tension between himself and Mr Trinder. Mr Thomas had been reprimanded for playing car radios, or perhaps playing them too loudly, had been told he was not working hard enough, and so on. But there is no evidence that any of those incidents was proximate to 24 April. Mr Thomas' evidence was that he had adjusted to the job. He said that, although it was "not the best job in the world", it paid the bills, and he quite enjoyed car detailing. It seems to me unlikely that, without any catalyst, he would suddenly decide he was leaving, particularly on the day before a public holiday (there being no evidence that he knew he would have be paid for the holiday if he left on the Wednesday). It seems to me much more likely that there was a relationship between his injury on that day and the termination of his employment. Mr Goldberg pressed upon me the fact that acceptance of the applicant's story involves my disbelieving three people, each of whom reports activity consistent with Mr Thomas having decided to leave the job by lunch time on the Wednesday. He was referring, of course, to Mr Silvestro, Mr Trinder and Ms Hall. This matter has weighed with me. As I say, I was impressed with the apparent honesty of Mr Trinder and Ms Hall. However, I am in an equal dilemma in regard to the applicant's honesty, if I take the other view; and this is the main reason why I have decided I should deal with the matter on the basis of the documents. The other matter that Mr Goldberg pressed, with some force, was that I should not accept that Mr Silvestro and Mr Trinder, or perhaps one of them, told the applicant he should come to work on the Saturday. Mr Goldberg pointed out, with his usual eloquence, that Mr Thomas would have been a one-handed detailer. He said that, although there was no other detailer, the apprentices could have done the job. Mr Trinder said something that supports this view. On the other hand, it seems Mr Thomas worked virtually every Saturday during his employment. I am not satisfied that both Mr Silvestro and Mr Trinder said something to Mr Thomas about coming in on Saturday, 26 April. I think it more likely that this is something Mr Trinder may have said, mainly because it appears that Mr Silvestro was not around the yard much on the Friday. In any event, as Ms Keys argued, why would the applicant lie about this? It was not essential to his story; he could just as easily have said he left the medical certificate there on the Friday, or that he came in on the Saturday for the sole purpose of delivering the medical certificate, without intending to work. In the end, I come back to the documents. They were made at the time by people who had knowledge of the facts. There being no compelling reason to adopt any other view, I think the version that accords best with those documents is to be preferred. Accordingly, I accept the applicant's account of the termination. It follows that I accept he was terminated at the initiative of the employer. The applicant does not now seek reinstatement. He does seek compensation. The appropriate amount is not easy to determine. The applicant was unemployed for about six months after the termination of his employment. However, his working record shows he has frequently changed jobs, and most jobs have lasted only a few months. He had been working for the respondent for about eight weeks; there had been some friction between himself and Mr Trinder. Although there was no reason to think his departure was imminent, either at his initiative or at the initiative of the employer, I cannot believe he would have stayed at the yard for a considerable time. He was earning about $500 per week gross. I think the fair course is to award him a total sum of $5,000. This represents something in the order of 10 weeks' earnings. One cannot be precise about matters such as this, but that is my best estimate of what is a fair thing. I allow the application for review. I set aside the order of the Judicial Registrar dismissing the proceeding. In lieu thereof, I order that the respondent pay to the applicant a sum of $5,000 by way of compensation. Of that sum, $2,000 is to be paid within 21 days, and the balance within a further 21 days. In the event of the first instalment not being paid by the due date, the balance will become immediately payable. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of Chief Justice Wilcox. Associate: Dated: 9 May 1997 APPEARANCES Counsel for the Applicant: J Keys Solicitor for the Applicant: Mark Brown & Associates Counsel for the Respondent: L Goldberg Date of Hearing: 9 May 1997