WELSH v MONTGOMERY [1997] IRCA 202

DECISION NO:202/97 CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - CONDUCT - VALID REASON - COMPENSATION.

Workplace Relations Act, 1996 ss. 170DC 170EA 170EE(3)

Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371

REBEKAH LOUISE WELSH v JOHN MONTGOMERY AI 1152 of 1996

CORAM: LINKENBAGH JR PLACE: CANBERRA DATE: 16 JUNE 1997

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AI 1152 of 1996

BETWEEN:

REBEKAH LOUISE WELSH Applicant

AND

JOHN MONTGOMERY Respondent

CORAM: Judicial Registrar LINKENBAGH PLACE: CANBERRA DATE: 16 JUNE 1997 MINUTES OF ORDERS

THE COURT ORDERS THAT: The respondent pay to the applicant the sum of $3,500.00 as compensation pursuant to the provisions of section 170EE(3) of the Act 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 AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY AI 1152 of 1996

BETWEEN:

REBEKAH LOUISE WELSH Applicant

AND

JOHN MONTGOMERY Respondent

CORAM: Judicial Registrar LINKENBAGH PLACE: CANBERRA DATE: 16 JUNE 1997 REASONS FOR DECISION

This is an application under section 170EA of the Workplace Relations Act, 1996 which was filed in the Australian Industrial Relations Commission on 21 November 1996. In her application the applicant says that she was employed as a Veterinary Assistant between 7 September 1996 and 8 November 1996 and she describes the reasons for the termination of her employment as: "my employers stated that some of my work was not done to satisfaction, for example cleaning of the water bowls and dog runs. Both jobs were then done satisfactorily. My employer also said that I was untruthful and this is not correct." The application annexes a letter dated 9 November 1996 which bears the heading "Notice of Termination of Employment". The letter states the fact of the termination and the manner of calculation of payments due to the applicant. It indicates that a reference is enclosed and ends with: "P.S. please feel free to discuss with either me or Jill the reasons for termination." The reference which is annexed reads: "Rebekah was employed as an animal attendant and assisted with reception work and veterinary nursing at Sonza Kennels and Cattery from 8 September to 8 November 1996. I wish her well in her new career." The Notice of Employers Appearance filed in the Commission gives as the brief summary of the reasons for termination: "Employee unable to reliably and adequately perform basic daily tasks in animal care such as cleaning bowls, cleaning runs. Employee also did not relate well to animals, was seen to kick dogs. Employee lost temper when corrected. Employee lied when reporting completion of tasks." The applicant was born on the 18 December 1978 and although not aged 18 at the date of commencement of the proceedings in the Industrial Relations Commission, she had attained the age of 18 years when the matter was referred to the Court and is competent to continue the proceedings in her own right. For the first few days of her employment the applicant was employed on a casual basis and she became a full-time employee from 16 September 1996 at a weekly wage of $288.60 gross. The applicant had left school early in 1996 during Year 11 of her school education and took up the full-time employment with the respondent in August in preference to the part-time positions in which she was then working. The applicant desires to make a career working with animals and saw the opportunity in her employment with the respondent to achieve that aim and to enable her to engage in an Institute of Technology course in Veterinary Nursing in 1997. It is an essential requirement that participants in that course be engaged in work with animals whilst attending the course. The applicant's duties at the kennels appear to have been such as would have been better described by the term Kennel Maid. The respondent operated a boarding establishment and veterinary hospital and the evidence shows that the applicant's duties all related to the animal boarding part of the respondent's business. The applicant worked Mondays to Fridays, from 10am to 6pm. She was responsible for keeping the dog runs and cattery clean, feeding, watering and exercising the animals, feeding the respondent's own dogs and a chook, assisting in cooking food for the animals, cleaning the bowls and utensils used by the animals, attending to some housework, answering the telephone and dealing with customers which arose in the absence of the respondent or his wife. Evidence was given as to the number of animals boarded in the kennels and cattery and whilst that number varied from time to time there was at least one period during the applicant's employment, being on the long weekend in October 1996, when there were at least 48 dogs and 9 or 10 cats in residence as well as several of the respondent's own dogs. In addition to the day to day care of the animals in residence, the applicant's duties included thorough cleaning of the runs and pens after an animal vacated. There was a high degree of physical activity involved and some aspects of the work were not pleasant. The evidence is that the applicant had had little general work experience and certainly no experience working in this kind of environment, and as well she suffered symptoms of an injury which required physiotherapy treatment from time to time. The evidence of the applicant on the one hand, and Mr and Mrs Montgomery on the other, differs as to the degree of training and instruction which was given to the applicant. On any view of the evidence, the Court finds that there was no comprehensive and consistent programme of instruction and training made available to the applicant. The evidence indicates that the applicant was left largely to her own devices and was at times the only staff member on the premises. Mr Montgomery left the training of the applicant to his wife and he did not visit the boarding establishment regularly or frequently. Attention was generally focussed on the manner in which the applicant performed her duties only when Mr or Mrs Montgomery observed some failing in her maintenance of the standards which they regarded as acceptable. Further, the evidence as to the short comings of the applicant in the discharge of her duties is not balanced or comprehensive. On the case for the respondent, at its highest, there is evidence that the applicant was spoken to about aspects of the manner of her work from time to time and that preferred methods of performance of some of her tasks were demonstrated to her on a few occasions. There is no evidence as to the overall performance of the applicant's duties, or even any comprehensive description of her tasks and routine, in the case for the respondent. If the evidence presented by the witnesses for the respondent is the only evidence of poor performance by the applicant of her duties, then there were many days during her short time in the employ of the respondent when there was no reason perceived for criticism of her work performance. That is particularly relevant given the ongoing and heavily routine nature of the duties which are associated with the day to day care of animals, particularly in an environment such as a boarding kennel and cattery. The case for the applicant is essentially that she performed her duties to best of her ability, taking into account her inexperience and the level of training and guidance which she received from the respondent. The case for the respondent is that the applicant's work performance did not meet the required standard even though the respondent gave the applicant adequate training and instruction. The respondent relies on the evidence of himself and his wife supported by entries in a diary, which is exhibit A. The applicant does not concede the authenticity of the diary entries and asks the Court to doubt the evidence of the respondent's witnesses that the diary entries were made contemporaneously and that they are accurate. In making its decision the Court does not rely on the fact of the dairy entries having been made or on any determination as to their accuracy. The decision is made on the oral evidence of the witnesses as to the history of the applicant's employment with the respondent. There can be no doubt that by the 8 November 1996, the respondent no longer wished the applicant to continue in his employ. The issue for the Court to determine is whether there was a valid reason for the termination of the employment within the meaning of that phrase as it is explained by Northrop J in Selvachandran v Peteron Plastics Pty Ltd, 1996 62 IR 371. The Court should be satisfied that the reason for the termination of the employment is sound, defensible and well founded and that it is not capricious, fanciful, spiteful or prejudiced. The reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirement of the employer's business and the issue of the validity of the reason for employment should be determined in the practical sphere of the relationship between the parties, each having rights and privileges, duties and obligations conferred and imposed on them. Justice Northrop expressed the view that the provisions of the Act must "be applied in a practical, commonsense way" with a view to ensuring that the employer and the employee are each treated fairly. There are indications in the evidence for the witnesses for the respondent that Mr Montgomery and his wife were dissatisfied with some aspects of the applicant's performance during September and October of 1996. It appears that the catalyst for the termination of the employment was the view which Mr Montgomery formed of the role played by the applicant in making arrangements for the boarding of some particular cats on 8 November 1996. Mr and Mrs Montgomery formed the view that the applicant had not noted in the diary at the time the booking was made, the fact that the owner of the cats had requested that they be picked up from her home on that day. Mr and Mrs Montgomery were inconvenienced in having to make arrangements at short notice to pick up the cats. Whether the applicant was in error in her notation of the arrangements depends upon the instruction which she was given by the owner of the cats at the time the booking was made. Mr and Mrs Montgomery choose to accept the owner's assertion that she instructed the applicant at the time the booking was made that the cats were to be collected. The applicant on the other hand asserts there was no such request. The respondent further relies on his observation that on the afternoon of 8 November 1996, the applicant had not performed her duties of cleaning out kennels and cleaning water buckets and preparing for the cats. The Court notes the evidence of Marguerita Moleirinha that the applicant, who now works with Ms Moleirinha at the Queanbeyan Veterinary Hospital on a voluntary basis, is a good worker, performing tasks similar to those of which the applicant was employed with the respondent. Whilst the weight of that evidence is affected by the fact that it relates to a period after the applicant was employed by the respondent, it is certainly contrary to the evidence of Mr and Mrs Montgomery as to the applicant's ability to attend to and care for animals. The Court accepts that there were occasions on which either Mr or Mrs Montgomery spoke to the applicant about her work performance and there were occasions on which duties such as the use of the pressure hose to clean yards was demonstrated to the applicant. There is also evidence that the applicant had some personal problems which she admitted affected her work at one stage, and that the applicant requested a reference from the respondent and was considering applying for another job. Nevertheless, the evidence is incomplete and unbalanced in that there is no evidence from the respondent as to that part of the applicant's work performance which was acceptable, and the respondent's case relies entirely upon the occasional incidents of criticisms which can now be recalled by the respondent and his wife. The evidence does not support the assertion in the Notice of Employers Appearance that the applicant was unable to reliably and adequately perform basic daily tasks in animal care, that she did not relate well to animals and was seen to kick dogs and lose her temper when corrected. Nor is there evidence to support the assertion by the respondent that the applicant lied when reporting completion of certain tasks. That assertion appears to be based on the opinion of Mrs Montgomery that the applicant did not feed a chook on a daily basis. The evidence in that regard is that she did not see feed left out for the chook when she walked past its pen. That is not sufficient to prove that the applicant did not feed the chook, as she says she did. The Court is not satisfied that as at 8 November 1996 there was a valid reason for the termination of the applicant's employment and the respondent is in breach of section 170DE(1) of the Act. Nor is the Court satisfied that the respondent has discharged its obligation to put any allegations of poor work performance to the applicant as is required by the provisions of section 170DC of the Act. This was a small workplace and the respondent was no doubt very busy attending to his practice as a veterinary surgeon and supervising the conduct of the boarding kennels. It may be that his expectations of the applicant did not take into account her inexperience and that he did not provide an appropriate level of training and guidance such as would give her a good chance of thoroughly learning the job and ultimately performing it to his satisfaction. The primary remedy available pursuant to the sections 170EE(2) and (3) of the Act is reinstatement. The Court finds that reinstatement in all the circumstances of this case is impracticable. The applicant is enrolled in the Veterinary Nursing course at the Canberra Institute of Technology and she has an arrangement for voluntary work experience in connection with that course with the Queanbeyan Veterinary Hospital. Also relevant to the finding of impracticability in relation to reinstatement is the observation of the Court of the relationshop between the applicant and the respondent and his wife. Their lack of trust in her is illustrated by the view they took of the incident relating to the cats on 8 November 1996, and their decision to terminate the employment generally. Compensation is therefore appropriate and in assessing compensation the Court must have regard to all of the circumstances of the case. A particular circumstance of this case is that the relationship between the applicant and the respondent in this very small workforce had deteriorated and it is unlikely, based on the evidence before the Court and the Court's observation of the parties that the applicant would ever have made the grade in this employment. The maximum compensation available to the applicant is 26 weeks at her wage of $288.60, a total of $7,503.60. It is not appropriate for the maximum compensation to be awarded. The Court is of the view that it is likely that this employment relationship would have deteriorated and failed within 6 months after the 8 November 1996, had the events of that day not occurred.The Court has a descretion which will be exercised by an order for the respondent to pay the applicant the sum of $3,500.00 as compensation pursuant to section 170EE(3) of the Act. I certify that this and the preceding 6 pages are a true copy of my reasons for decision.