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. 17 There is no letter of appointment or corroboration of the establishment of a probationary period. Documentation between the respondent and IPC is, if in existence, not helpful. The best this might do is establish an intention by the respondent to employ on a probationary basis, not that the probation had been established prior to the commencement of employment as required by s 83 and Regulation 6(c) which excludes probationary employees from jurisdiction in the following terms: "(c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months - the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment." 18 I find that the establishment of a probationary period is not made out. It is a very simple matter for an employer to create a letter of appointment confirming probationary period. This was not done. Accordingly Ms Shelley is not excluded from jurisdiction on this basis. RESIGNATION 19 The respondent asserts that the applicant resigned in the course of a conversation with Ms Arlitsch, the owner of the respondent business, in which the applicant put that she was not happy and "could not do this any more". The respondent responded that the arrangement was not working out for either of them. It is contended that Ms Shelley accepted this and offered to finish up that day. The applicant denies that she resigned. 20 The evidence leads to a conclusion that the employer intended to end the employment relationship. It is not possible to deduce resignation from these circumstances. CONDUCT 21 The respondent put that Ms Shelley's employment was terminated due to complaints by staff that they were intimidated by her and that Ms Shelley spent time on personal phone calls and with friends visiting the shop. It is further asserted that Ms Shelley did not achieve satisfactory sales during the course of her employment. 22 Ms Shelley denies the conduct alleged putting that she received minimal phone calls from friends and family admitting that she took a small number of brief calls from her 22 year old son whilst he was serving with the Australian Armed Forces in Iraq. 23 Ms Shelley is supported by a statement from her son confirming his deployment and need to call her. Mr Wormington submitted that the respondent was unaware that Ms Shelley's son was serving in Iraq. 24 The only complaint in evidence is that by Ms Megan Johnson who deposed that she reported her complaint to Ms Arlitsch. Ms Shelley denies an assertion by Ms Johnson that she left a customer unattended in a dressing room to take a personal call on her mobile phone. 25 It was established that Ms Johnson informed Ms Shelley that any private calls from the store phone had to be documented. Ms Johnson accepted that following this advice Ms Shelley made no personal calls from the store phone. 26 Ms Shelley accepts that a friend visited the store the day after she started to give her flowers to congratulate her and that another friend had visited on occasion. Ms Shelley deposed that this person was involved with a choir which held significant potential for future sales. 27 Ms Shelley put that on becoming aware of the policy that friends should not visit the shop she discouraged her associates from visiting her. 28 Ms Shelley refuted the assertion that she had a poor sales record adding that an undertaking by the respondent to offer her training had not been met. 29 Ms Shelley denied that there was any problem between her and staff, putting that the only difficulty was with Ms Johnson who was transferred to the Boolaroo store. Ms Shelley put that her relationship with other staff was warm and friendly. There is no direct evidence to confirm or refute this submission. CONSIDERATION 30 S 88 of the Act provides guidance in determining a claim in the following form: "88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate take into account; (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." 31 The evidence disclosed no warning or attempt by the respondent to inform or direct her in this regard. The only evidence which goes to this matter is that of Ms Johnson that Ms Shelley stopped using the store phone when informed of the policy. The reasons for termination of employment were not put to the applicant. The reasons advanced in these proceedings are not supported by evidence and the applicant was not given an opportunity to give an explanation of the behaviour alleged prior to the termination of her employment. 32 Mr Wormington submitted that in the event the Commission found against this argument on jurisdiction and merit, that an award of compensation should be minimal having regard to the short term of employment and a failure by Ms Shelley to mitigate her loss by actively seeking other employment. This assertion is denied. 33 The evidence is that Ms Shelley has enrolled in a National Archery Competition, which Mr Wormington submitted Ms Shelley placed above her obligation to mitigate. 34 I make the following determination: · The termination of Ms Shelley's employment was harsh, unreasonable and unjust · Reinstatement and re-employment are impractical · Having regard to the short duration of employment and apparent lack of communication between the parties in which the applicant is not without responsibility, I assess compensation at $1,000.00. This amount is to be paid within 14 days of 21 November 2005. 35 Orders issue herewith. 36 Matter No IRC 4470 of 2005 is so concluded. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP 23 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 ORDERS Pursuant to s 89(5) of the Industrial Relations Act 1996 Melissa Starr - Starr Weddings is order to pay to Ms Lia Margaret Shelley the amount of $1,000.00 (one thousand dollars) within 14 days of the date of hearing, i.e. 21 November 2005. 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.