Jennifer Sturtevant and Kenneth Henry T/as Scooters Tasty Express Cuisine Pty Limited [2005] NSWIRComm 1004

Industrial Relations Commission of New South Wales

CITATION: Jennifer Sturtevant and Kenneth Henry T/as Scooters Tasty Express Cuisine Pty Limited [2005] NSWIRComm 1004

APPLICANT Jennifer Sturtevant PARTIES: RESPONDENT Kenneth Henry

FILE NUMBER(S): 920 of 2004

CORAM: Patterson C

CATCHWORDS: Termination of employment - unfair dismissal

Industrial Relations Act 1996 LEGISLATION CITED: Shop Employees (State) Award

HEARING DATES: 04/06/2004; 07/27/2004; 08/09/2004

DATE OF JUDGMENT: 01/21/2005

Self Represented LEGAL REPRESENTATIVES: Self Represented

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: PATTERSON, C

21 January 2005

Matter No IRC 920 of 2004

Jennifer Sturtevant and Kenneth Henry T/as Scooters Express Tasty Cuisine Pty Limited.

Application by Jennifer Sturtevant re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

DECISION

[Year] NSWIRComm ####

1 This application for relief was filed by Ms Jennifer Sturtevant on 24 February 2004 following her alleged dismissal, without notice, from her position as "cashier/shop assistant" by the business' principal, Mr Kenneth Henry, after she had persistently questioned the calculation of her wages by comparison with appropriate award rates and the absence of pay slips. 2 The business, and correct respondency according to Mr Henry, "Scooters Express Tasty Cuisine Pty Limited", is described as an eat-in dining and/or sandwich, etc, takeway, situated as adjunct to a petrol station complex located on the Hume Highway, South Strathfield. 3 Aged 21 at the time of her engagement in "October or November" 2003, the Applicant had commenced employment as a casual working over a five-hour shift between 4pm and 9pm, on two or three days per week including some Saturdays for which, she states, no award penalties were paid. 4 About "three" weeks prior to her termination - by "dismissal" or "resignation" depending on which version is to be accepted - Ms Sturtevant was asked to fill a vacancy on "day shift", Mondays to Fridays, 10am to 4pm, caused by the earlier incumbent's resignation. 5 Whether Ms Sturtevant's employment status then changed from "casual" to "part-time" or "casual part-time" as curiously described by the respondent is a matter of loose understanding and reference between the parties but, nevertheless, was confirmed as the product of a systematic rostered arrangement prepared and announced in advance. 6 The kitchen was generally staffed by males, with young females (including school students) preferred by Mr Henry as being more conducive to customer presentation - predominantly male "shift workers" ("truckies") - at the shop front preparing, serving, and waiting on tables. 7 Ms Sturtevant claims that of the uniforms required to be worn - either of "two" shirts supplied by the respondent - they were deliberately intended as undersized causing them to be unnecessarily tight, and thereby accentuating the female upper contours. She implies, against the protestations of Mr Henry, that this represented a promotional strategy directed at the predominantly male clientele. Mr Henry denies this stating that she could have asked for a larger size. 8 She claims that, when offered the position on the day shift, Mr Henry had said she was the only female available to do so because he "preferred a hot sexy female to be serving at the front counter to attract males to come in and buy things". 9 Her elevation from casual status to perceived temporary employment status somehow gave rise to Ms Sturtevant later questioning the amounts paid - since the wage calculations were not particularised by medium of payslips. 10 Following her own research Ms Sturtevant initiated discussions which, in Mr Henry's evidence, led to argument, accusation, and offensive/challenging behaviour on her part which he found unacceptable. 11 On her evidence, this change in working arrangements - from "casual" nightshift (4pm-9pm) to "temporary" day shift (10am - 4pm) led to reasonable enquiry, particularly in the absence of payslips which would otherwise have provided particulars of her hourly rate and other components of her income. 12 Ms Sturtevant's apparent persistence, in the face of perceived resistance (the respondent's accountant said to have been "on leave"), led to some regular and spirited discussion. Mr Henry describes her demeanour as "going berserk". 13 On the limited evidence available, since neither was professionally represented, it seems clear that Ms Sturtevant was paid the appropriate hourly rate, at $13.35, for her classification of part-time "shop assistant" as provided by the Shop Employees (State) Award during the final few weeks of her "dayshift" engagement. 14 However, she clearly had been paid the same hourly rate whilst working as a casual between 4pm and 10pm. Her enquiries from the Department of Industrial Relations revealed that, during that period, she should have been paid $15.35 per hour and that, on her calculations, she is entitled to $511.05 which remains unsatisfied. 15 And, although no precise details are provided in respect to the number of occasions and hours worked on a Saturday, the applicant believes there to be further outstanding entitlements in respect to penalty rates. 16 According to Ms Sturtevant the respondent had conveyed the impression that he was not particularly interested in her queries, or complaints, and attempted to shrug her off. 17 According to Mr Henry she was so relentless in her pursuit of wages information that he considered her approach as offensive. However, he admits that he was not aware as to the Award requirements concerning penalty rates and undertakes to examine that claim further and address any outstanding entitlements appropriately. 18 Mr Henry describes the applicant's attitude to her work as becoming so poor that it cast a serious reflection upon his business: "She was very rude to customers and she was also spreading ill will among the staff in terms of actually making them come to me and ask me how much money they're being paid, are they actually being paid the right rates. She just pretty much became a total cancer in the place before she left". 19 He attempted to address this by placing her on "clean-up" duties and, on 24 February, Mrs Sturtevant's employment came to a sudden end. 20 She states that Mr Henry finally said words to the effect: "You give me attitude. The only person who gives me attitude and gets away with it is my eight-year old daughter. You're fired!". 21 Mr Henry initially denies having dismissed the applicant stating that she had "resigned from the business with two day's notice giving the reason that she had taken up another position with another company". 22 She states that she had not arranged an alternative position prior to her dismissal, without notice or payment in lieu thereof. 23 Indeed, when she was contacted by the respondent's manager "David", approximately "two" weeks later and asked to "come back", she obliged, believing that Mr Henry was no longer associated with the business. 24 "David" had told her he was desperate for staff but, after returning - on "nightshift" - she was rostered to work up to a maximum of 12 hours per week, a sharp contrast to the 30 hours that she had worked on day-shift in the three weeks prior to dismissal. 25 Considering this to be inadequate, and used as a strategy to disguise the dismissal after Mr Henry becoming aware of her application for relief, Ms Sturtevant then resigned. At that time she still had no alternative job in place. 26 Pressed on this, Mr Henry then agreed that he had dismissed her at one stage of his evidence, but denied it elsewhere describing her initial separation as a period of unpaid "suspension" imposed as a consequence of her alleged poor attitude. 27 He then admits to "re-hiring" her due to his "desperation" to obtain suitable staff. This period of so-called "suspension" was, according to him, "less than a week". Ms Sturtevant states that it was "two weeks". 28 She states that she was unemployed, following her resignation in March, for three weeks (five weeks in total) and seeks compensation in the amount of $760 calculated as representing "roughly" the equivalent of two weeks' wages in the period leading up to her termination on 24 February. She further seeks satisfaction in respect to her Award entitlements as mentioned supra [14][17]. 29 As to the latter, the applicant has been advised as to my absence of jurisdiction and, should Mr Henry be untrue to his undertakings given in this place, that she may seek recovery of her outstanding entitlements in another place. 30 Not unlike so many hundreds of "unfair dismissal" applications seen in this jurisdiction each year I am satisfied on the evidence, limited as it is, that Jennifer Sturtevant became the victim to her new awareness as to Award rights and entitlements. 31 Not unlike so many of such cases generally being exclusive to small business, such applicants - made particularly vulnerable due to factors such as age, ethnic origin, absence of union representation - who dare to question their employer, frequently come to grief, a factor which seems to have been lost on, or conveniently ignored by, those who would seek to deprive employees of "small business" their rights to obtain a just form of relief. 32 In this case the applicant, at 21 years of age, of modest means and facing a considerable and mounting personal debt (in respect to a matter which requires no elaboration here), had suspected she was being under-paid. Her suspicions were heightened when Mr Henry continued to decline the provision of pay slips - and confirmed after she had initiated her own enquiries from the Department of Industrial Relations. 33 When confronted by his apparent ignorance, or possible arrogance, her persistent queries continued to remain unsatisfied. 34 That this may have led to some decline in her attitude towards Mr Henry and to a corresponding dip in her performance is, perhaps, not surprising. 35 However, given her claim, forthright and consistent responses in cross-examination, and to questions from me as compared with the vacillations of Mr Henry, I am satisfied that she is a witness of credit. 36 I conclude, therefore that the claims as to her negative attitude and serious decline in performance were not so serious as to justify Ms Sturtevant's dismissal on 24 February. 37 Clearly, there was a dismissal on that date. She had not resigned at that time but was dismissed "for attitude", without notice and without payment in lieu thereof. 38 Having considered the material placed before me, I consider her dismissal to have been harsh, unjust and unreasonable. 39 That he (Mr Henry) then arranged to "re-hire" Ms Sturtevant shortly after she had filed her application for relief - on arrangements seriously inferior to that worked prior to dismissal (30 hrs reduced to 12 hrs pw) - can only be interpreted as a device erected to camouflage the full events leading up to dismissal and designed to produce a resignation subsequently. 40 In any event, whatever his "desperation" to obtain staff, I do not accept the re-engagement of Ms Sturtevant, who had "pretty much become a total cancer in the place before she left" [18] to have been in good faith. 41 On any view of the evidence, and notwithstanding the self-contradictory evidence of Mr Henry, there were two separate periods of engagement. The first, which ended in dismissal on 24 February and a second, over two or three(?) attendances on a casual or night shift, which ended by the applicant's so predictable resignation. 42 Having been filed on 24 February, 2003, on the same day as her dismissal and her application first-listed for conciliation and directions for 30 March, it was unable to proceed due to no appearance being entered by, or on behalf of, the respondent. 43 Before proceeding onto the bench I instructed my assistant to make enquiries as to the respondent's whereabouts, since no information had been received as to a difficulty and no documentation had been filed in reply by the employer. 44 I was informed by her that, having contacted Mr Henry, he denied having received a copy of the application and notification of the listing and "did not want his time wasted" by such proceedings. 45 Having then announced to the applicant, who represented herself, that the matter was unable to proceed at that time both parties were advised of an alternative date. The applicant had lost a day's wages for no reasonable purpose and the respondent was then advised by phone, and by registered mail, that if he failed to attend on the next occasion the matter would be heard ex parte. 46 When re-listed for 6 April Mr Henry further denied having received a copy of the application and notification of the original listing citing an on-going difficulty with his recalcitrant postman. 47 Ms Sturtevant, on the other hand, suggested that he had received the documents as another person, whom she believed as the new owner of the business, told her that Mr Henry had "showed (him) the papers". CONCLUSION