Shelley v Melissa Starr - Starr Weddings [2005] NSWIRComm 435

Industrial Relations Commission of New South Wales

CITATION: Shelley v Melissa Starr - Starr Weddings [2005] NSWIRComm 435

Lia Margaret Shelley PARTIES: Melissa Starr - Starr Weddings

FILE NUMBER(S): IRC 4470 of 2005

CORAM: Harrison DP

Application re unfair dismissal - application out of time - probation period CATCHWORDS: Held - application admitted - probation not determined in advance - resignation not made out - alleged intimidation of staff not sustained - warning and reasons not given prior to termination - termination harsh unreasonable and unjust - compensation awarded

Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Regulations 1996

HEARING DATES: 11/21/2005 EXTEMPORE JUDGMENT DATE: 11/23/2005

APPLICANT Lia Margaret Shelley

LEGAL REPRESENTATIVES: RESPONDENT Counsel Mr J Wormington

JUDGMENT:

- 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

21 November 2005

Matter No IRC 4470 of 2005

Lia Margaret Shelley and Melissa Starr - Starr Weddings

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 435

1 This matter was heard on 21 November 2005. An ex tempore decision was issued in transcript. Full reasons and orders are now published. 2 Ms Lia Margaret Shelley was employed as Manager of Starr Weddings Newcastle Store from 20 January 2005 until 27 July 2005, a period of five and a half weeks. 3 The employment is regulated by the Shop Employees (State) Award IG 324 935. The applicant was paid $622 per week plus $5.50 per day parking allowance. 4 The application is this matter was filed on 26 August 2005, seven days in excess of the time for making application prescribed by section 85 of the Act. 5 On hearing, the applicant was self-represented. Mr Wormington of Counsel appeared with Ms Melissa Arlitsch, the business owner and respondent. Ms Shelley tendered a statement of evidence and was subject to cross-examination by Mr Wormington. Mr Wormington brought evidence from Ms Arlitsch and Ms Megan Johnson. OUT OF TIME 6 Ms Shelley put that the delay was caused by lack of response from her former employer to her written request for particular detail of the allegation resulting in the termination of her employment; and delays in receiving documentation by mail. I consider that the reasons for and length of delay warrant exercise of discretion pursuant to s 85(3) of the Industrial Relations Act 1996 ("the Act") to admit the application out of time. PROBATION 7 The respondent contends that the employment was subject to a three month probationary period which is refuted by the applicant. 8 Ms Shelley deposed that she had 35 years experience as a nurse and had been employed in a retail jewellery shop for six months prior to taking up the position with the respondent following a one day unpaid trial. 9 The evidence of Ms Arlitsch is that she recruited Ms Shelley through IPC Employment Agency. Ms Arlitsch deposed that she had dealt with IPC previously on the basis of engagement on a trial basis. Ms Arlitsch put that she was required to complete documentation for IPC confirming a trial period as a Federal Government payment accrues on completion of the nominated period of employment. 10 The evidence of Megan Johnson, employed by the respondent as a sales assistant, deposed that she asked Ms Shelley whether she could give the jewellery cabinet a "make over" putting that Ms Shelley declined on the basis that she was "on trial" and that if she took the position she would attend to it then. In cross-examination it was established that the day of the request was in fact the trial day for which Ms Shelley was not paid. Ms Johnson confirmed that after taking up the position Ms Shelley made alterations to the jewellery cabinet. 11 The documentation to IPC is not available, said to be lost. 12 Ms Arlitsch deposed that she had two meetings with the applicant prior to offering her a position. 13 The evidence is that the applicant was first interviewed at her Boolaroo shop in which she said to the applicant that she would be on a three months trial during the course of a discussion on wages and job description. 14 Ms Arlitsch's evidence is that her second meeting with the applicant took place at Bill's Bakery Warners Bay in which she put that she gave the applicant a verbal description of the job and told her that she would be on a three months trial. Ms Arlitsch deposed that Ms Shelley wanted to negotiate a rate of pay above the $14 per hour offered. Ms Arlitsch put that she told Ms Shelley that she would be on a three months trial and the wage could be negotiated on completion thereof. Some further discussions took place and a rate of $15 per hour was agreed. 15 The applicant denies that the probationary period was raised in either meeting. 16 Mr Wormington submitted that it was against logic that Ms Shelley be employed other than on a probationary period. Mr Wormington referred to the application filed by Ms Shelley which states that she was not employed on a probationary basis which he put should be regarded with suspicion.