Industrial Relations Commission of New South Wales CITATION: Sanson v Port Macquarie Cinemas T/As Ritz Twin Cinema [2005] NSWIRComm 38 Jamie Sanson PARTIES: Port Macquarie Cinemas Pty Ltd T/As Ritz Twin Cinema FILE NUMBER(S): IRC 3915 of 2003 CORAM: Harrison DP Application re unfair dismissal - Compensation sought - termination of employment motivated by action of employee - no act or omission by employer to ground constructive dismissal - offer of further employment ignored by applicant. CATCHWORDS: Held - termination not harsh, unreasonable or unjust - relief refused. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 02/15/2005 EXTEMPORE JUDGMENT DATE: 02/25/2005 APPLICANT Solicitor Mr I Paul GWM Lawyers LEGAL REPRESENTATIVES: RESPONDENT Solicitor Mr S Miles Donovan Oates Hannaford JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 25 February, 2005 MATTER NO IRC 3915 OF 2003 JAMIE SANSON AND PORT MACQUARIE CINEMAS PTY LTD T/AS RITZ TWIN CINEMA Application re unfair dismissal pursuant to section 84 of Industrial Relations Act 1996 EX TEMPORE DECISION [2005] NSWIRComm 38 1 Mr Jamie Sanson ("the applicant") was employed by Port Macquarie Cinemas Pty Ltd trading as Ritz Twin Cinema ("the respondent") as a cinema projectionist pursuant to the Entertainment and Broadcasting Industry - Cinema (State) Award 319 IG 20 ("the award") from 9 December 1996 to 16 June 2003. There is dispute between the parties in respect to the proper classification and payment of wages due. The applicant seeks recovery of an amount of $174,071.80, which is being pursued in separate and distinct proceedings under s 106 of Industrial Relations Act 1996 ("the Act"). 2 The application subject to proceedings in this matter was filed on 16 July 2003 subsequent to a letter of demand for unpaid wages on 23 June 2003 (Att. A to Ex 1, the applicant's first affidavit). 3 The matter was first subject to Conciliation proceedings before Redman C., as he then was, on 31 July 2003 and subsequently in August, September and November 2003 as the parties attempted to negotiate a settlement. Their efforts were unsuccessful and the Commissioner issued directions to bring the matter to hearing. 4 In further proceedings on 18 February 2004 the parties reported settlement of the matter to the Commissioner involving a redundancy payment of $5,000 to the applicant subject to execution of the "usual deed of release". The Commissioner listed the matter in March, April, May and July 2004 to determine conclusion of proceedings. The Commissioner was ultimately informed that the parties had been unable to execute a deed of release and that the applicant was not prepared to accept the sum offered. 5 The matter was re-allocated to the Commission as presently constituted on 1 September 2004. Further unsuccessful attempts were made at conciliation and by the parties in negotiation. Directions were issued on 15 November 2004 to bring the matter to hearing in February 2005. 6 The matter was subject to arbitration on 15 February 2005 at Port Macquarie Court House. 7 Mr Paul brought evidence from the applicant. 8 Mr Miles brought evidence from Mr Murray Phillips, the owner and manager of the respondent employer at the relevant time. Mr Miles tendered a statement of evidence from Mr John Madge, the owner and manager of the respondent employer from late 2003. The statement was admitted without objection and Mr Madge was not required for cross examination. The Evidence 9 Mr Sanson took a period of two weeks leave to attend to urgent family matters from 2 June 2003 to 16 June 2003. These matters took Mr Sanson out of the district. He returned to Port Macquarie on the weekend of 10 June 2003 and, by arrangement with the other projectionist, worked a shift on 10 June 2003 as, on his evidence, he was in town and needed the money. 10 Mr Sanson's evidence is that he spoke to Mr Phillips on 7 and 14 June 2003 to ascertain his forward work commitments. Mr Sanson deposed that a telephone call was made on or about 7 June from Sydney, where he was attending a relative suffering the effects of a heart attack. 11 In his second affidavit (Ex 2) Mr Sanson describes the exchange between himself and Mr Phillips in the following terms: 3. On 14 June I attended upon the Respondent's premises and enquired as to when I would next be rostered for work. Mr Murray Phillips, being the Director of the Respondent company stated: "you would not be needed for a while and I cannot guarantee you any further work". 4. On 16 June I attended upon Centrelink and enquired as to my entitlements for financial assistance as I had a family to support and mortgage commitments to meet. I was advised by Centrelink that I must contact my employer and clarify as to when I would be next working. I was further advised by Centrelink that if my work was uncertain that I would need to request a separation certificate from my employer before I would be able to obtain financial assistance. 5. Subsequent to my meeting at Centrelink I telephoned Mr Murray Phillips and the following conversation transpired:- Jamie Sanson: " When am I next working Murray? " Murray Phillips: "Not today, not tomorrow, not for the rest of the week". Jamie Sanson: "What about the week after that?" Murray Phillips: "I don't know ". Jamie Sanson: "I've been to Centrelink this morning and I've been advised that if you don't have any work for me that you would have to let me go in order that I may be entitled to financial assistance ". 6. Murray Phillips then provided me with a separation certificate, a copy of which is annexed to the statement dated 22 October 2003. 7. Upon my attendance upon Murray Phillips to collect the separation certificate he stated:- Murray Phillips : "If anything comes up I'll give you a call". 8. I am currently in receipt of financial assistance from Centrelink and am actively looking for full time employment. 12 Mr Phillips' evidence is that the applicant was expected to return to work on 17 June 2003, however, he received a telephone call on 16 June 2003 during which in Mr Phillips' evidence the following conversation occurred: Jamie Sanson: "What time am I on today?" Murray Phillips: "You are not on tonight, you're not rostered to work until tomorrow. I am currently tied up with the new purchaser going over things at the moment. I will have to get back to you about what time tomorrow you are working." Jamie Sanson: "Well, I have got other things to do this week. I want to know now." Murray Phillips: "I can't tell you right now, you better go ahead and do the other things you want to do this week and I will get back to you about your shifts for next week." Jamie Sanson: "That's not good enough. I want you to give me my Separation Certificate now." 13 Mr Phillips' evidence is that he was surprised at the request for a separation certificate but complied with the request and late on the afternoon of 16 June 2003 Mr Sanson attended the cinema and collected the certificate. Mr Phillips' evidence is that during the course of the exchange he said to Mr Sanson: "I don't know why you are doing this but in the future will you be available to do any other work in the cinema?" 14 Mr Sanson did not reply. 15 It is not contested that Mr Phillips was in the process of selling the cinema business to Mr Madge. Mr Sanson deposed that he was aware of the impending sale and expected it to take place in late 2003. Mr Madge had expressed a view that the projection room would be automated, however, all employees would be continued in employment. 16 The deposition of Mr Madge is that he intended and expected to continue Mr Sanson in employment. The evidence of Messrs Phillips and Madge is that all employees were in fact continued in their employment on execution of the sale in late 2003. 17 Mr Phillips deposed that at no time had he intended to terminate Mr Sanson's employment. Mr Phillips deposed that cinema projectionists were scarce in country areas and that Mr Sanson's departure had caused particular difficulty. 18 Mr Sanson has not worked as a projectionist since leaving the respondent's employment and has continued to receive social security benefits. 19 During the course of cross examination Mr Sanson conceded that a version of events documented in a form issued by the Department of Social Security was different than that contained in his affidavit. Mr Sanson held to the version set out in his affidavit, conceding that this was not the same as that put to the Department of Social Security. The Social Security form obtained by Mr Miles by call on Mr Sanson was not tendered and accordingly a qualitative analysis of the difference is not available. OUT OF TIME 20 The application was filed on 16 July 2003, 30 days after termination of employment, rendering it nine days out of time. Mr Paul sought an exercise of discretion to admit the application. This was opposed by Mr Miles who submitted that the s 84 application was in fact an afterthought, following the letter of demand for recovery of unpaid wages sent on 23 June 2003, seven days after the termination of employment. 21 Mr Miles further submitted that the action of Mr Sanson in insisting upon termination of his employment was a device to put him in a position to make the claim for underpayment of wages. CONSIDERATION 22 I prefer the version of events offered by Mr Phillips. I am persuaded to do so on the basis that Mr Sanson has failed to pursue any further employment with the respondent, either prior to or after the transfer of business to Mr Madge. This is in stark contrast to the ability of Mr Sanson to arrange a shift on 10 June 2003 with another employee because he was in town and needed the money. This ability to work with the roster is inconsistent with the demands upon Mr Phillips to tell him when he was working and the abrupt manner in which Mr Sanson demanded certainty or a separation certificate. 23 Mr Sanson's failure to pursue any alternative work at all is consistent with an intention to end his employment with the respondent. 24 The letter of demand for recovery of unpaid wages prior to the filing of this s84 application gives substance to the submission of Mr Miles that continued employment with the respondent was not a priority for Mr Sanson. 25 The evidence of Mr Phillips is not diminished in cross examination and holds no internal inconsistency. CONCLUSION 26 Having regard to the length of delay, the reasons therefore, the hardship visited on either party, and the conduct of the parties, I exercise a discretion to admit the application out of time. 27 Having considered the evidence before me I find that the applicant was the moving agent in the conclusion of that employment. It is not a constructive dismissal and is not a termination of employment which I could find to be harsh, unreasonable and unjust and accordingly I refuse to provide any relief to the applicant in these proceedings. 28 Matter No IRC 3915 of 2003 is so concluded. oo0oo 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. 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