Industrial Relations Commission of New South Wales CITATION: Blendine Shlaimon and Fair Deal Travel Centre Australia [2005] NSWIRComm 1050 APPLICANT Blendine Shlaimon PARTIES: RESPONDENT Fair Deal Travel Centre Australia FILE NUMBER(S): 4433 of 2000 CORAM: Patterson C CATCHWORDS: COMMISSIONER TO ADD LEGISLATION CITED: Industrial Relations Act 1996 DATE OF JUDGMENT: 04/12/2005 DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: PATTERSON, C 26 April 2005 Matter No IRC 4433 of 2000 Blendine Shlaimon and Fair Deal Travel Centre Australia Application by Blendine Shlaimon re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2000] NSWIRComm #### 1 This application for relief was filed by Ms Blendine Gorial Shlaimon (Al Bazy) following her termination of employment as a "travel consultant" by telephone advice from the respondent's principal, Mrs Lily Stepanovich, after less than five months' service. 2 On 23 July 2000 Ms Shlaimon had received a call from Mrs Stepanovich informing her not to "come to work tomorrow … I don't need you anymore … don't try to contact me … if you want something call my solicitor." 3 Several following attempts to contact Mrs Stepanovich at the office failed due, it seems, to her deliberate avoidance and it was not until the applicant called her employer's mobile phone that they spoke again. When the applicant asked what was "going on" and stated that she had a "right to know ..." she was told "you do not have any rights with me" and was, once again, loosely referred to the respondent's solicitor. 4 After making arrangements through another person Ms Shlaimon arranged to visit the travel agency and collect her personal effects whereupon she discovered her "personal papers" to be in disarray and that a "parcel" given her by a relative to pass on to another relative "had been opened." 5 "For the next two weeks" the applicant's frequent attempts to make contact with her employer through "friends or mutual acquaintances" continued to be unsuccessful. 6 According to material filed by the respondent, Mrs Stepanovich had counselled the applicant on a number of occasions in respect to her "sloppy work practices" and frequent failure to comply with standard procedures and licensing requirements concerning the safe-handling of deposit and bond moneys. 7 "Around late July" Mrs Stepanovich allegedly discovered "there were monies missing and not accounted for … I then began to find that Blendine was keeping money in her drawer" rather than lodging it within the office safe. 8 Having arranged an audit of the "business books" at around this time Mrs Stepanovich was advised by her accountant of a "$60,000 to $70,000" shortfall in the Trust Account. Considering this missing money to have been the product of "sloppy work practices" and/or misappropriation Mrs Stepanovich considered the applicant as being exclusively responsible and summarily terminated the applicant by phone as claimed. 9 However, it was not until after her application for relief was filed in this Commission that Mrs Stepanovich filed a complaint with ­Fairfield Police whose subsequent enquiries were not to be concluded for a very considerable time. 10 And, it was not until Ms Shlaimon's quest for relief was filed in this place that Mrs Stepanovich had reported the applicant's alleged dishonesty to the Department of Immigration and Multicultural Affairs (the "Department"). 11 As will be seen from the Department's correspondence reproduced below this information, not yet reported to Police at the time (let alone investigated to conclusion), had the potential effect of causing a prima facie approval of Ms Shlaimon's application for Australian citizenship to be placed at serious risk: "Dear Ms Shlaimon, I refer to your recent application for Australian citizenship. The Department has information to hand that you may be subject to a charge in a court of law at a future time. Although your application for Citizenship has been approved, as delegate I have authority to revoke the approval (prior to conferral) under certain circumstances. One such circumstance relates to individuals approved for Citizenship who may be subject to charges in court at a future time. I am considering the revocation of your approval. Before I decide to revoke, I am required to consider your statement about why you should be conferred as an Australian citizen. Accordingly, I invite your written representations in relation to this matter. As discussed by phone, this should include written documentation from Fairfield Detectives that you have contacted the case officer ( now Det Sgt Gordon Bullock , who has replaced Det Sgt Mike Lewis), and completed outstanding matters to their satisfaction. Your written response to these matters should reach me no later than 13 December 2000. S Romano Executive Officer Citizenship Section, Parramatta 13 November 2000" 12 With the parties being granted an application to stand the matter out of the list pending conclusion of the police investigation and a further audit it was finally restored to the list for Hearing three years after Ms Shlaimon's termination. The protracted investigation and internal audits had been concluded without any charges being laid and the applicant had finally succeeded in securing confirmation of her citizenship status. 13 Three days prior to the commencement of Hearing in July 2003, a Friday, the respondent's solicitor wrote to the applicant's representatives advising of revised instructions from his client: "I refer to our telephone conversation of this instance and advise that this day I am in receipt of advice from my client that they will no longer be proceedings to defend this matter. I have been informed by my client that the Corporation ceased to trade as of October 2001, and accordingly on advice from the Corporate Accountant, deregistration proceedings were commenced sometime ago. I am led to believe these deregistration proceedings were commenced prior to this matter being revived before the commission. As a matter of courtesy to the Commissioner, I will attend on the hearing date to advise him of the same. In the meantime, if you have further enquiries please do not hesitate to contact the writer." 14 The applicant's solicitor promptly replied noting inter alia that, when the hearing had been listed for timetabling and directions a few months earlier, no advice had been then proposed to de-register the company. He requested further details including the date of lodgement of any application for de-registration, the precise legal grounds for the winding-up, a copy of the application, and "full details of all disclosures regarding the existence and status of the above proceedings." 15 The applicant's solicitors further confirmed their instructions to proceed with the Hearing before the Commission during which they would require the attendance of Mrs Lily Stepanovich for cross-examination. 16 On the hearing day Mr A. Dowling, solicitor for the applicant, raised as a preliminary issue the matter of Mrs Stepanovich's application for voluntary de-registration and its implications for these proceedings. 17 By reference to a copy of the relevant Australian Securities & Investments Commission ("ASIC") documents (form 6010) obtained under the Freedom of Information Act the application, made in June, includes a sworn declaration made by Mrs Stepanovich that: "the company has no outstanding liabilities; and the company is not a party to any legal proceedings." 18 Accordingly, Mr Dowling had then taken urgent steps to seek deferral of the deregistration proceedings on the basis of proceedings currently on foot before this Commission. As I understand it ASIC approval was forthcoming. RESPONDENCY 19 Considering the so-named respondent "Fair Deal Travel Centre" and its director, Mrs Stepanovich, to have made the application for voluntary de-registration as an eleventh-hour attempt to avoid this Commission's jurisdiction Mr Dowling made application for her to be personally joined to the proceedings as second respondent. 20 Whilst the application for relief had not formally named Lily Stepanovich as a second respondent in requisite fashion, it being filled out and filed by the applicant herself, it nevertheless named her employer in the following manner: FORM 8 A2(a) EMPLOYER'S NAME "FAIR DEAL TRAVEL CENTRE AUSTRALIA MRS LILY STEPANOVICH" 21 According to his instructions, Mr Dowling stated that the application had been served on Mrs Stepanovich personally by Ms Shlaimon and, as to the performance of the employment contract "it is entirely as between the applicant and Mrs Stepanovich … she received instructions from Mrs Stepanovich (and) was summarily dismissed by Mrs Stepanovich." 22 Mr Dowling said "its our case that she didn't pay wages on a number of occasions (in excess of $10,000 in wages and entitlements outstanding) but sporadically when she did, they were paid in cash by Mrs Stepanovich. So, its by no means a spurious application, but I readily admit that the application as pressed this morning, in light of the application that came to light on Friday to de-register (the company) – in my respectful submission – is an attempt to avoid jurisdiction." 23 Noting this application for Mrs Stepanovich to be joined as a new development, about which he had no prior notice and, therefore, no instructions Mr Jemmeson, solicitor for the company, was placed in a difficult position since his client did not wish to proceed any further with the cost of defending the matter "on the basis she says that the business has failed." 24 Her final instructions to him before discontinuing his services was to advise the Commission that she wished the matter to be heard … "(in respect to the corporation) on the basis of the documentation" (including the affidavit of Mrs Stepanovich) already filed. She was not present and had not made herself available for cross-examination. 25 As I understood the position Mr Jemmeson's role was to then cease prior to commencement of the substantive proceedings. Since his retainer had been withdrawn he stated that he could no longer act for the company. 26 I then decided to grant Mr Dowling's application for Mrs Stepanovich to be joined to the proceedings as second respondent followed by an adjournment to allow Mr Jemmeson to contact his client with a view to seeking renewed instructions. 27 On resumption Mr Jemmeson advised that he had been unable to contact his client, however, whereupon the following exchange took place: " COMMISSIONER: I really wonder about her bona fides, Mr Jemmeson. I mean for you not to receive any instructions at all until the last minute on Thursday and those being limited to, as I understand it, the fact that deregistration had been applied for. This is dropped on the applicant at the last minute – almost a fait accompli. If the applicant's representative had not acted as swiftly as he has then perhaps it would be all over, bar the shouting. On one view, I perhaps should give you time, but the matter has been in the list since 9 April and I think for me to adjourn it now would be quite unreasonable, with respect to yourself. JEMMESON: Thank you, commissioner. COMMISSIONER: So if you wish to be excused, Mr Jemmeson. JEMMESON: Thank you, commissioner. I'll still try and seek some instructions from her and hopefully may be able to get something from her and attend back at the commission. COMMISSIONER: All right. JEMMESON: Thank you, commissioner." THE EVIDENCE 28 Briefly stated, Lily Stepanovich states in her affidavit that she is a Director of Fair Deal Travel Centre Pty Limited which has operated as a registered travel agent at 20 Smart Street, Fairfield from September 1997 until May 2001. 29 In early January she considered expanding her business in the "Assyrian/Arabic market". She discussed her ambitions with Mr Anwah Koshaba, Mayor of Fairfield City Council, and sought his assistance in recruiting a person of Middle Eastern background "who is qualified and is looking for work in the travel industry." 30 In "late January or February" Mr Koshaba arrived at the travel office accompanied by a female, Blendine Shlaimon. In the course of the interview which followed, the latter explained that she had been born in Iraq, had been in Australia for "about two years," was in possession of a resident's visa, and that she "used to work in the Australian Embassy in Amman." 31 Asked by Mrs Stepanovich if she had acquired any experience in the travel industry Ms Shlaimon replied that she had "worked for a couple of weeks at Jetset Travel in Merrylands on a commission-only basis." She had left because she was seeking "something closer to home." Her background and qualifications were in "biology and chemistry." 32 Asked why she wished to obtain a position in the travel industry Ms Shlaimon had replied that, due to her being well-known throughout the Assyrian/Arabic community she considered herself capable of organising "several overseas groups for the agency … as they were always travelling" the world. She said that she "can also read, write and speak Assyrian, Arabic and English … can help and do the advertising confirmations for the groups" throughout her ethnic community. 33 The applicant was told that she may be able to commence part-time employment after demonstrating her ability to "complete clientele files entirely and correctly." On or about 31 January the applicant was placed in a five-day computer training course in respect to the travel reservation system. 34 The applicant was told that she may be able to commence part-time employment after demonstrating her ability to "complete clientele files entirely and correctly." On or about 31 January the applicant was placed in a five-day computer training course in respect to the travel reservation system. 35 "Prior to commencing employment" Mrs Stepanovich states that the parties agreed for the applicant to be paid "an amount between $60 and $70 nett per week." This amount was paid in cash each Friday. 36 Whilst there appears to be some confusion in the reported dates of the initial introduction and Ms Shlaimon's engagement on part-time work it appears that she commenced on or about 14 February and gradually increased from two days to six days per week in May. 37 From this point, however, the parties depart significantly. 38 For example, Mrs Stepanovich states, in contrast to the applicant's evidence, that the latter did not respond to her frequent requests that she provide her income tax file number and/or complete an employee declaration form. 39 "After about one month" Mrs Stepanovich considered the applicant's use of the computer and completion of files to be deficient. When the latter allegedly claimed the need for extra time allocation in this process Mrs Stepanovich states that she issued Ms Shlaimon with keys to the office and the safe " so that if she was in the office alone she could access bus and air tickets" for clients. She was also spoken to following alleged rudeness to clients and various complaints from clients throughout her entire period of employment. 40 The applicant denies ever being criticised, counselled or warned in respect to any aspect of her performance, attitude or conduct towards her work or clients. Whilst she accepts having been issued keys to the office she denies being given access to the cash box/safe. 41 Stating that Mrs Stepanovich had commonly expressed appreciation for her efforts ... "you're doing a very excellent job for our company and we appreciate all that and we are happy to have you" ... she describes her dismissal as a complete shock. 42 "In early May" Mrs Stepanovich states that she "had a bookkeeper prepare a full audit of the office accounts." Although the business turnover had increased from the previous year she was advised of the resultant profits being disproportionately less. "Shortly thereafter I noticed one day that the banking was short by $3000." 43 "The applicant states that, early in her employment, she had been asked to do some banking from "time to time". But this activity did not become a major responsibility and whenever she was involved she always provided the necessary banking receipts to her employer. 44 However, whilst Mrs Stepanovich describes her business as doing very well, at least until the revelations of the initial audit, Ms Shlaimon understood that it wasn't doing very well at all. 45 I reproduce below an unchallenged extract from the applicant's affidavit: "Around May 2000, creditors were contacting the respondent concerning money owed to them. I have overheard one creditor say to Mrs Stepanovich words to the effect "I will have you put in jail if you do not pay me." In those circumstances I felt that I could not ask her to pay me the wages which were owing to me because I thought that she did not have any money. I know that around that time Mr Stepanovich (Mrs Stepanovich's husband) took out a loan. I was asked to sign a letter to assist him to get the loan. Also around that time Mrs Stepanovich's mother in law commenced working the Travel Centre. She worked approximately 3 days per week. The mother in law took over the banking and management of the cash box while she was working at Fair Deal Travel." 46 On the applicant's evidence her duty days were increased to six days per week from 7 May when she had become "permanent." She states that the maximum earnings for any such week amounted to $150 per week and I note the particulars of outstanding wages and entitlements which her solicitors are pursuing in another place. CONSIDERATION 47 Whilst much can be gleaned from the apparent business practices of this enterprise, for much of the applicant's evidence – in the absence of rebuttal – does not require mention here it represents, at the very least, a curious operation indeed. 48 That the applicant has been seriously exploited in terms of substantial outstanding wages and 0other entitlements from the outset displays an attitude by Mrs Stepanovich which was selfish to the extreme and not the mere product of ignorance. 49 That this attitude, not uncommonly seen to exist in some pockets of small business notorious for their avoidance of statutory and award obligations, should have culminated in this form of unceremonious dismissal, to be followed by subsequent official complaints which seriously reflected upon the applicant's reputation can only be described as diabolical to the extreme. 50 In the absence of Mrs Stepanovich making herself available for cross-examination then, on the material presented, I determine the applicant's summary dismissal to have been harsh, unjust and unreasonable. 51 As to the so-called missing moneys being attributed to Ms Shlaimon – not put to her prior to dismissal, and not reported to Police until three months following dismissal, and only after this application had been filed – is indeed curious and reflects poorly on the credit and business practices of Mrs Stepanovich. It seems no wonder that Fairfield Police accorded a low priority to its investigation of the complaint. 52 Last, but not least, the manner and timing of Mrs Stepanovich's application for voluntary de-registration of the business – supported by a false declaration to ASIC – reflects poorly on her credit in these proceedings. 53 Not only has she attempted to mislead this Commission in my opinion, but sought to erect a barrier to jurisdiction in this matter by a cloak of deceit. 54 Furthermore, in failing to keep her own solicitor properly informed of earlier developments in respect to her cessation of trade and, later, in providing him with incomplete/distorted instructions as to the application for de-registration, she left him up the creek without a paddle. For this, she must accept full responsibility for the outcome of these proceedings. 55 I decide, therefore, to find in favour of the applicant and make an order for compensation. ORDER (i) That the first respondent Fair Deal Travel Centre (Aust.) Pty Ltd or, in the alternative, the second respondent "Lily" Stephanovich pay to the applicant Blendine Shlaimon the sum of five thousand and five hundred dollars ($5,500). (ii) That this sum shall be paid within twenty-one days (21) of today's date. R J Patterson COMMISSIONER 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.