Industrial Relations Commission of New South Wales CITATION : Tapuvae v Vetob Pty Ltd T/as Browse About [2002] NSWIRComm 191 APPLICANT PARTIES : Artheena Tapuvae RESPONDENT Vetob Pty Ltd Trading as Browse About FILE NUMBER: IRC 5354 of 2001 CORAM: Harrison DP CATCHWORDS : Unfair dismissal - maternity leave - failure of employer to comply with s67 of Industrial Relations Act 1996 Held - employee did not abandon employment - refusal of employment on return from maternity leave harsh, unreasonable and unjust - compensation awarded - unreasonable refusal by respondent to contemplate conciliation - costs awarded LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Carmen Maree Rayner and Soul Pattinson [1999] NSWIRComm 13 HEARING DATES: 07/05/2002 DATE OF JUDGMENT: 08/16/2002 APPLICANT Mr G Sullivan, solicitor Aubrey Brown Partners LEGAL REPRESENTATIVES: RESPONDENT Ms L Benson JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 16 August 2002 Matter No IRC 5354 of 2001 ARTHEENA TAPUVAE AND VETOB PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 191 1 This matter was subject to arbitration proceedings on 5 July 2002 following a lengthy period of unsuccessful attempts at conciliation before Mr Commissioner Patterson, who issued directions requiring preparation of the matter for hearing. The matter was reallocated to the Commission as presently constituted and scheduled for hearing, having regard to availability of the parties, compliance with subpoenas issued by the applicant's representative, and opposition thereto by the respondent. 2 On hearing Mr G Sullivan, solicitor of Aubrey Brown Partners, appeared on behalf of Mrs Tapuvae, the applicant. Ms L Benson appeared on behalf of Vetob Pty Ltd, the respondent employer, with Mr R Murray. 3 Mr Sullivan brought evidence from the applicant. Ms Benson brought evidence from Mr Robert Murray, Managing Director of the respondent; Ms Diane Bishop, an employee of the respondent; and Ms Jenny Zygalski, an employee of the respondent. TERM OF EMPLOYMENT 4 There was some dispute between the parties in respect to the term of employment of the applicant. Wage records (Ex 2) show the date of commencement of employment as 25 May 1998. 5 There was conjecture between the parties concerning the last day of the applicant's employment. The evidence of Ms Bishop is that she was working with the applicant on 20 July 2000 when both her and the applicant's handbags were stolen from the staff room. Exhibit 5 is a copy of a record of the event held by the NSW Police Service in respect to the afternoon of 20 July 2000, reported by the applicant at 3.25 pm on 20 July 2000. Ms Bishop's evidence is that shortly after 20 July 2000 the applicant, well advanced in her pregnancy, left work during the course of the afternoon feeling unwell. Ms Bishop's evidence is that she received a telephone call the next day from either the applicant or her husband (Ms Bishop being unable to recall with certainty) advising that the applicant would not return to employment. Ms Bishop's evidence is that there was not mention of maternity leave, however, she was aware that the applicant desired and intended to return to employment following her confinement. 6 The applicant's evidence is that her last day at work was 20 July 2000. Her evidence is that she remained until closing time of 5.30pm and was paid wages by Mrs Sandra Murray, then the wife and business partner of Robert Murray. The applicant deposed that she rang Mrs Murray the following day to inform her that she "had a show of blood". The applicant's evidence is that she did not resume employment following this event and proceeded on maternity leave from 21 July 2000, her third child being born on 7 August 2000. MATERNITY LEAVE 7 The applicant's evidence is that prior to ceasing work, she had informed Mrs Murray that she would return from maternity leave approximately two weeks after the birth of her child. The applicant's evidence is that there were some complications with her confinement and consequently she did not approach the respondent concerning a return to work until November 2000, however, had maintained communication with the respondent and staff during this period. 8 Mr Murray denies any knowledge of these events, deposing that at the relevant time Mrs Sandra Murray, now living in Queensland, dealt with all staff matters. EMPLOYMENT HISTORY 9 The applicant's evidence is that at the time of commencement of her employment in May 1998 ( on a casual basis) she was pregnant, the baby due to be born in early August 1998. Her evidence is that in July 1998 Mr Murray put to her that he wished her to return to work after the birth of her baby, to which she agreed. The baby was born on 4 August 1998 and approximately three to four weeks later, the applicant returned to her casual employment. 10 The applicant's evidence is that Mr Murray had allowed her to baby sit in the shop from 2.30pm to close at 5.30 pm for some two months whilst her husband was working afternoon shift. The applicant's husband was then transferred to night shift, removing the need for the applicant to mind her child at the store. 11 The applicant's evidence is that by October 1998 she was working five days per week at the respondent's Long Jetty store. At this time the respondent opened an additional store at Wyong and Ms Bishop was appointed manager with the applicant placed in charge at Long Jetty. 12 The applicant's evidence is that in December 1999 she became pregnant with her third child. In April 2000 she was transferred to the Wyong store where she worked five days per week from 9.00 am to 5.00 pm Monday, Tuesday, Wednesday, and Friday; and 9.00 am to 7.00 pm Thursday. 13 The applicant deposed that she took one week of annual leave from 30 June 2000 to 7 July 2000 with the approval of Mrs Murray. The applicant further deposed that on her return from this period of leave she put a request to Mrs Murray that the lay-by room be converted to a nursery to allow her to have her baby at work in the afternoons. The applicant's evidence is that Mrs Murray undertook to put this request to Mr Murray. The applicant deposed that a conversation then ensued between herself and Mrs Murray to the effect that if all went well, the applicant would take two weeks maternity leave follow the birth of her baby and resume work thereafter. 14 The applicant's evidence is that approximately one week later she was informed by Mrs Murray that Mr Murray would not permit her to have her children in the shop, which she accepted and pursued no further. 15 Mr Murray's evidence is that he was generally satisfied with the applicant's performance until she was given a trial as shop manager at Long Jetty subsequent to Ms Bishop's transfer to Wyong. His evidence is that soon after the applicant was appointed shop manager he discovered her husband sleeping behind the counter of the store, which the applicant put to him was for security. 16 The applicant denied that her husband had been asleep behind the counter, deposing that he had on a number of occasions attended the store and remained in the staffroom as she was concerned for her safety whilst working alone at night. The applicant cited a number of incidents and threats which led her to a concern for her safety. The applicant deposed that she had made Mr Murray aware of thee events. Mr Murray denies any knowledge of the incidents relied upon by the applicant. 17 Mr Murray further deposed that on one occasion he arrived to find customers waiting in front of the store, which was not open at 9.45 am. His evidence is that he then realised that the applicant should not be working alone and transferred her to the Wyong store under the supervision of Ms Bishop. 18 The applicant concedes that there were a couple of occasions on which she was late to open the shop, deposing that she was never reprimanded or counselled by Mr Murray on those occasions. 19 Mr Murray deposed that when he discovered that the applicant had been bringing her children into the lay by room at the rear of the store during her shifts, he issued instructions to Ms Bishop that neither the applicant nor any other member of staff should have their children in any of the stores due to "workcover regulations". 20 The applicant's evidence is that she maintained contact with staff on a personal level and conveyed to Mr Murray through them her continuing intention to return to employment following maternity leave. This is confirmed by the evidence of Ms Bishop who describes a visit by her to the applicant's home with a gift for the baby, and several visits to the shop by the applicant. 21 The applicant deposed that she requested an employee identified as "Jenny" to inform Mr Murray that she was ready to resume work, which Jenny undertook to convey to Mr Murray. 22 The evidence is that Mr Murray refused to return the applicant to employment, which she accepted pending her attendance at the respondent's Christmas Party on 10 December 2000, on which occasion she raised the prospect of her return to work directly with Mr Murray. The applicant's evidence is that at the Christmas Party Mr Murray informed her that business was a little slow and that he would call when things picked up. The applicant's evidence is that she had no further contact from Mr Murray. 23 The applicant's evidence is that she made further approaches to staff at the Long Jetty store who, she contends, told her they were understaffed. The applicant reiterated her availability and sought that Mr Murray be informed, without success. 24 The applicant's affidavit of evidence (Ex 1) concludes in the following terms: "I was never given by the respondent or any representative for the respondent notice of my entitlements to parental leave nor was I notified of my obligation to give to the employer the notices, which are required to be given under Section 58 of the Industrial Relations Act. I understood that the provisions of the act provided that the employer (the respondent) had twelve (12) months from the date which my maternity leave commenced to re-employ me in my previous position." 25 Mr Murray's evidence is that the applicant left his employment on 9 July 2000 after working four hours and that he had no further communication from or with her since then. Mr Murray acknowledged that the applicant was at the respondent's Christmas Party but denied any conversation with her on that occasion. Mr Murray deposed that he did not terminate the applicant's employment, asserting that she left on her own accord, presumably dissatisfied with his refusal to allow child minding at the shop and reprimands in respect to work performance and punctuality. SUBMISSIONS 26 Mr Sullivan submitted that the evidence supports the conclusion that the applicant properly and legitimately expected to return to employment after a period of maternity leave following the birth of her third child in August 2000, in the same manner and process occurring in 1998 following the birth of her second child. 27 Mr Sullivan submitted that the evidence further supports the conclusion that the employer failed to provide the applicant with information as to her rights to maternity leave and appropriate process as required by s67 of the Industrial Relations Act 1996 ('the Act'). 28 Mr Sullivan referred to the decision of Buckley C in Rayner and Soul Pattinson [1999] NSWIRComm 13 of 29 January 1999 in which Ms Rayner was considered by her employer to have resigned from her employment on commencement of absence due to confinement. The Commissioner, on the facts of that matter, which Mr Sullivan put were on point in this matter, held against the employer, awarding compensation to the applicant. 29 Mr Sullivan made application for an award of costs pursuant to s181(2) of the Act, submitting that the respondent had unreasonably failed to agree in the conciliation of the matter. 30 Mr Sullivan submitted that the the respondent had flatly refused to countenance discussion of the matter in conciliation, asserting that he had not dismissed the applicant. 31 Ms Benson submitted that the applicant had never made application for maternity leave and had never discussed the prospect thereof with Mr Murray. 32 Ms Benson submitted that the applicant was not dismissed from employment, putting that she left of her own accord. 33 Ms Benson submitted that it was normal business practice to inform pregnant employees of their rights and obligations in respect to maternity leave, putting that Mrs Murray, with whom Ms Benson has had no contact, would have so informed the applicant. CONSIDERATION 34 I find on the evidence before me in this matter that the applicant's last day of employment was, on the balance of probabilities, 20 July 2000. 35 I accept that there had been discussion between the applicant and her employer concerning maternity leave and the intention and expectation of the applicant was to return to employment so soon after the birth of her baby as she was physically able. 36 Section 67 of the Act sets out the employers obligations in the following terms: (1) Information to employees On becoming aware that an employee (or an employee's spouse) is pregnant, or that an employee is adopting a child, an employer must inform the employee of: (a) the employee's entitlements to parental leave under this Part, and (b) the employee's obligations to notify the employer of any Matter under this Part. An employer cannot rely on an employee's failure to give a notice or other document required by this Part unless the employer establishes that this subsection has been complied with in relation to the employee. (2) Records An employer must keep, for at least 6 years, a record of parental leave granted under this Part to employees and all notices and documents given under this Part by employees or the employer. Maximum penalty: 20 penalty units. 37 There is no evidence to support the contention that the applicant was advised as the Act requires. The evidence is that no such advice was given on the first occasion of maternity leave following the birth of the applicant's second child in 1998, leading to the conclusion that arrangements remained as casual in 2000 as they had been previously. 38 Subsequent to the applicant's departure from employment for the birth of her baby, the business was disrupted by the separation of Mr and Mrs Murray, leaving Mr Murray with significant gaps in respect to information on staff dealings available to him. Once he assumed responsibility for these matters, he was obliged to consider the applicant's maternity leave rights, which he refused. 39 I find that the applicant was entitled to maternity leave and left her employment in the genuine belief that she would return following that maternity leave. 40 I find the refusal of the respondent to effect a return to employment following maternity leave harsh, unreasonable and unjust and award compensation in the amount of $4,000 (four thousand dollars). COSTS 41 Costs are allowable pursuant to s181(2)(c) of the Act, which states: (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or 42 I find the conduct of the respondent to fall within the first mentioned criteria, i.e. "unreasonably failed to agree to a settlement", and award costs to the applicant as agreed or as taxed by the Industrial Registrar. 43 Matter No IRC 5354 of 2001 is so concluded. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 16 August 202 Matter No IRC 5354 of 2001 ARTHEENA TAPUVAE AND VETOB PTY LTD T/AS BROWSE ABOUT Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 ORDER [2002] NSWIRComm 191 1. Pursuant to s89(5) of the Industrial Relations Act 1996 Vetob Pty Ltd trading as Browse About is ordered to pay the amount of $4,000.00 (four thousand dollars) to Mrs Artheena Tapuvae within 21 days of the date of this decision. 2. Pursuant to s181(2)(c) of the Industrial Relations Act 1996 Vetob Pty Ltd trading as Browse About is ordered to pay costs to Mrs Artheena Tapuvae as agreed or as taxed by the Industrial Registrar within 21 days of the date of this decision. I so order. The Hon. R W Harrison Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.