Industrial Relations Commission of New South Wales CITATION : Ryan v Hewitt [2003] NSWIRComm 136 APPLICANT PARTIES : Lisa Ann Ryan RESPONDENT Mark and Ann Hewitt FILE NUMBER: IRC 4258 of 2002 CORAM: Harrison DP CATCHWORDS : Application re unfair dismissal pursuant to s84 of the Act - termination due to short notice of absence due to sick leave and parental responsiblity - no warning or counselling by employer. Held - termination harsh, unreasonable and unjust - compensation awarded. LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 04/02/2003 DATE OF JUDGMENT: 05/05/2003 APPLICANT Lisa Ann Ryan LEGAL REPRESENTATIVES: RESPONDENT Mark and Ann Hewitt JUDGMENT: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 5 May 2003 Matter No IRC 4258 of 2002 LISA ANN RYAN AND MARK AND ANN HEWITT Application by Lisa Ann Ryan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2003] NSWIRComm 136 1 The application in this matter was filed on 23 July 2002 and subject to Conciliation and Directions proceedings on 15 November 2002 before Patterson C. The matter was reallocated to the Commission as presently constituted in March 2003 pursuant to S173 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was subject to proceedings on 24 March 2003 resulting in Directions issued to bring the matter to hearing on 2 April 2003. 3 Ms L Ryan ("the applicant") appeared on her own behalf. Mr Mark and Mrs Ann Hewitt (''the respondents") appeared on their own behalf. 4 Ms Ryan's evidence is that she was employed by the respondents at Brooklyn Central Boat Hire ("the business") as a casual employee from 25 February 2002 and, following a three month probation period, as a permanent part-time employee from 4 April 2002. 5 The application giving rise to these proceedings nominates the employer's business as "Fun Venture Pty Ltd". The applicant describes her occupation as that of console operator, working 54 hours per fortnight, earning a gross amount of $778.75 per fortnight. 6 Ms Ryan deposed that on the morning of 7 July 2002 she received a phone call from Mr B Copland, manager of the business, advising her of the termination of her employment and offering her the option to "work the week out, or be paid out". The reasons advised by the employer for termination of employment were the applicant's unsatisfactory attendance, in particular failure to advise of an inability to attend for work in time for alternative arrangements to be made; and problems with balancing the cash register. 7 Ms Ryan deposed she received two further calls from Mr Copland on 7 July 2002. The first at approximately 1.30pm in which Mr Copland enquired whether the applicant wanted to be paid out or would work out the week. Ms Ryan put that as a result of her informing Mr Copland that she believed the termination to be unfair and that she intended to refer the matter to the Industrial Relations Commission, she was told she would be paid out. 8 The subsequent telephone call by Mr Copland to the applicant at 4.05pm on 7 July 2002, instructed her to attend work on 9 July 2002 to return keys and collect her cheque. 9 These events are set out in correspondence dated 7 July 2002, contained within Exhibit 1 (tendered by Mr Hewitt), which states: "Dear Lisa As per our discussion this morning, Sunday at 9am on 7 July 2002. I notified you that I was terminating your employment at Brooklyn central. I advised you that I was giving you one week's notice, and giving you the option of working that week or being paid in lieu. I again spoke to you at 1.40pm today and asked you what you had decided to do in this regard. You advised me that you considered my action (notifying you at 9am on a Sunday morning) as unreasonable. As I discussed with you at that time, I felt it was more reasonable to discuss this with you over the phone when you were at home, rather than ask you to make the trip to Brooklyn. You agreed that this was a better option. You told me that you were going to seek advice from Industrial Relations regarding unfair dismissal and I advised you that under the circumstances I felt it would be better if we paid you a week in lieu of notice. Brooklyn Central is a small shop, with only one person in attendance at a time. The operational needs of the business are such that we must have reliable staff. Since being made permanent part time, you have frequently taken time off, often at very short notice. Also, you have continually made mistakes with both the new and old till. We cannot operate the business effectively in these circumstances." 10 Ms Ryan was required to endorse this correspondence and return a copy to the employer. The respondent put that endorsement of the correspondence should be taken as acceptance of the content. There is no statement of acceptance preceding this endorsement. The endorsement cannot be taken as anything other than acknowledgement of receipt of the correspondence. 11 Attached to exhibit 1 is a chronology of leave upon which the respondent relies for termination of employment. This states: Lisa Ryan - Leave Taken Up to 4 April No leave taken 17 May Phone call from Lisa's partner (at 11:30am before 12 noon start) to say Lisa was sick and would not be in. 18 May Call from Lisa's partner (at 5:25 am prior to 6 am start) to say Lisa was still sick. 6 June Lisa was absent because her daughter was sick 8 June A roster was set before Bob (the supervisor) went on leave, but Lisa rang him on his holidays to inform him that she would not be working the Saturday as arranged. 5 July Phone call at 10:30 prior to 12 noon start to say her daughter was sick and she would not be in. Called again at 10:30 that night to say her daughter was still unwell and she would not be in on Saturday. 6 July Bob tried to call her several times during the day but was told that Lisa was not at home. 12 It is the applicant's evidence that on 17 May she was too ill to call and that her partner telephoned prior to 9.00 am. In respect to 18 May, it is the applicant's contention that she had every intention of attending work on that day, then, when realising that she would not recover in time, contacted the employer as soon as it was practicable. There is no dispute that the applicant was absent on 6 June due to her daughter's illness. In respect to 8 June it is the applicant's contention that a female friend of Mr Copland, whom he had recently hired, declined that shift, resulting in a late request for the applicant to work that day, however she was unable due to a prior arrangement. The applicant took no issue with the details of 5 and 6 July, other than to refute the assertion that Mr Copland called her several times on 6 July. The applicant deposed that on 6 July she was absent from her residence for a considerable time, obtaining medical assistance for her daughter, and that her young son took a message, to which she responded as soon as she could. 13 In respect to the issue concerning operation and balancing of a newly installed cash register system, the applicant deposed that no proper or adequate training was provided; putting that the training consisted of a five minute brief by Mr Copland, which was significantly less than that afforded other staff. 14 It is Ms Ryan's evidence that on the day of the cash register's installation she attended work an hour earlier as required for training. Ms Ryan deposed that the installer experienced problems with the cash register and Mr Copland sent the applicant home. 15 Mr Hewitt relied upon the evidence of Mrs Hewitt in relation to training. It is Mrs Hewitt's evidence that the supervisor would have ensured each employee was trained however conceded she did not witness the training. 16 There is some dispute about this, however, the respondents are firm in their argument that this matter was not an element in the termination of employment. The respondents' evidence is that, while there were some difficulties, these could have, and in their view would have, been overcome in reasonable time. 17 Mrs Hewitt deposed that the main issue in relation to the applicant's dismissal was not cash register operation but failure to attend work at short notice. 18 The applicant deposed that she was not given any verbal or written warning or counselling prior to termination of her employment. 19 Ms Ryan deposed that had she been advised by the respondents as to problems regarding her attendance she would have rectified this behaviour, adding that she would have sought assistance from her mother to attend to her children had she realised that her employment was in jeopardy. 20 Mr Hewitt deposed that he believed the applicant was given every opportunity for guidance however was unable to support this assertion with any particular evidence. CONSIDERATION 21 Section 88 of the Act sets out those matters to be considered in determining a claim in the following terms: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or -re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 22 In assessing the facts of this matter against the statutory criteria I am compelled to the conclusion that no warning of unsatisfactory performance was given before the dismissal, as specified in s88(c) of the Act. 23 It is plain on the evidence that the applicant was not given an opportunity to make out a defence or give explanation in accordance with s88(b) of the Act. 24 There is some discord between the correspondence from Mr Copland, set out above, and the evidence of Mrs Hewitt that difficulties with the cash register were not integral in the decision to terminate the applicant's employment. While Mr Copland was the applicant's direct supervisor and the person giving effect to the termination of employment, he was not called to give evidence; circumstances which raise doubt as to the basis in fact relied upon by the respondent. 25 In the absence of any warning or positive advice to amend behaviour, it is difficult to regard the attendance record detailed in exhibit 1 as justifying termination of employment. Exhibit 1 attests to an exemplary attendance record up to 4 April 2002. There is then one occasion in each month of May, June and July in which the applicant is unable to attend work for legitimate and proper reason, the only issue being timely information to the employer. This issue arises on the first occasion, 17 May 2002, but is never addressed to the applicant, nor is there evidence of any communication arrangement put in place for the applicant to contact the employer or the employer's manager, Mr Copland, in respect to such matters. 26 I find the termination of the applicant's employment to be harsh, unreasonable and unjust. I find that neither reinstatement nor re-employment is practical. I determine compensation at an amount equivalent to ten weeks pay, being $3,953.75 (three thousand nine hundred and fifty three dollars and seventy five cents). oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 5 May 2003 Matter No IRC 4258 of 2002 LISA ANN RYAN AND MARK AND ANN HEWITT Application by Lisa Ann Ryan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. ORDER Pursuant to section 89(5) of the Industrial Relations Act 1996 Fun Venture Pty Ltd is ordered to pay Ms Lisa Ann Ryan the amount of $3,953.75 (three thousand nine hundred and fifty three dollars and seventy five cents) 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.