Devine v Gediminas [2002] NSWIRComm 38

Industrial Relations Commission of New South Wales

CITATION : Devine v Gediminas [2002] NSWIRComm 38 PARTIES : Ms Sue Devine Gediminas General Services FILE NUMBER: IRC 6215 of 2001 CORAM: Harrison DP CATCHWORDS : Application for relief from alleged unfair dismissal - jurisdiction - whether status of employment casual Held - employment not casual - jurisdiction found - termination due to conduct not proven - inadequate and ineffective warning - compensation awarded LEGISLATION CITED : Industrial Relations Act 1996 Industrial Relations Regulations 1996 Ryde Eastwood Leagues Club v Taylor [1994] 56 IR 385 CASES CITED : Burcome v Oldham and Others T/as The Royal Hotel [1996] 71 IR 404 Reed v Blue Line Cruises Ltd [1996] 73 IR 420 HEARING DATES: 02/14/2002 DATE OF JUDGMENT: 03/12/2002

APPLICANT Ms S Devine LEGAL REPRESENTATIVES: RESPONDENT Mr N Butt

JUDGMENT: - 11 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Tuesday, 12 March 2002 Matter No IRC 6215 of 2001

SUE DEVINE AND GEDIMINAS GENERAL SERVICES

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 38 1 The applicant in this matter, Ms Sue Devine, was dismissed from employment with Gediminas General Services, the respondent, on 24 August 2001. The application was filed in time and subject to proceedings for the purpose of conciliation and directions, resulting in a conclusion that the matter could not be resolved by agreement between the parties and the issue of directions to bring the matter to arbitration. 2 On arbitration Ms Devine appeared on her own behalf and brought evidence in the form of a Statement (ex 1) and pay advice information (ex 2). Ms Devine also brought evidence from Ms Kylie McLeod, an employee of the respondent at the relevant time. 3 Mr Neil Butt, currently employed by the respondent as Practice Manager, appeared on behalf of the respondent. Mr Butt cross examined Ms Devine and Ms McLeod but did not bring any particular evidence, relying on an outline of submission (ex 4) going to the issue of jurisdiction in the circumstances of casual employment and asserting that the applicant had been warned concerning her work practices by the previous Practice Manager. 4 Ms Devine had been employed by the respondent, a service company providing clerical services to the Tweed City Medical Centre operated by a Dr Mikus. 5 Ms Devine's evidence, which is unchallenged, is that she had worked with and for Dr Mikus for two and a half years. She had initially been employed with the Healthpoint Medical Centre of which Dr Mikus was a co-owner. A partnership dissolution, said to be acrimonious, took place resulting in Dr Mikus leaving that practice and the applicant and other staff terminated on 26 February 2001. The applicant's evidence is that this termination of employment took place as a consequence of loyalty shown to Dr Mikus during the process of partnership dissolution. 6 Ms Devine's evidence is that she was contacted by Dr Mikus by telephone on 8 March 2001 and invited to work for him at a temporary medical centre, which he had established whilst in the process of building a new medical centre at the Tweed City Shopping Centre. She commenced employment on 12 March 2001. Employment was terminated on 24 August 2001. The applicant contends that the termination of employment was without notice and that no reasons were given at the time. Termination pay was later forwarded to the applicant. 7 Ms Devine's evidence is that on commencement of employment she worked from 4.00 pm to 8.00 pm Monday to Friday, with additional requirement to work Saturday and Sunday as demand required. Employment became more regular on completion of the new medical centre, the applicant then worked five days per week, Monday to Friday. At the time of her dismissal she worked Mondays from 9.00 am to 6.00/7.00 pm and Tuesday to Friday from 10.00 am to 6.00/7.00 pm. There is some dispute between the parties concerning particular finishing times. It is not disputed that the applicant worked a full day each day, Monday to Friday and was not subject to daily call in or was ever told she was not required for any particular day. The applicant attended work on a regular basis throughout her employment. 8 Ms Devine's evidence is that during the course of her employment her workload was constantly increased as the medical practice attracted more patients and initiated additional services. 9 Ms Devine's evidence is that she was never reprimanded in respect to the conduct of her work and never warned that her continued employment was in jeopardy. In her statement (ex 1) Ms Devine concedes that there were instances when Dr Mikus picked up errors she had made but there had never been an issue in respect to such matters. She acknowledges that Ms Hermes did speak to her about the volume of work outstanding and that her explanation, conveyed to Dr Mikus, was accepted. Ms Devine strongly refuted that she stockpiled work, putting that on transfer from HMC there were 1700 patient records to scan to computer. 10 The applicant's evidence is that Dr Mikus was at times volatile and prone to alter and contradict his own instructions. 11 The evidence of Ms McLeod is that she was not aware of any warning or reprimand to Ms Devine. On cross examination by Mr Butt, Ms McLeod conceded that she was not in a position to be aware of all conversations between the applicant and the practice manager. 12 Mr Butt contends that the previous practice manager, Ms Hermes, issued verbal warnings to the applicant at the direction of Dr Mikus on four occasions. These are detailed in annexure c to exhibit 4 in the following terms: 21st May, 2001: A reminder for Sue to commence work promptly when starting work in the new building next week, also that only designated morning tea breaks would be allowed.