Industrial Relations Commission of New South Wales CITATION: So v. Pearl Computer Pty Limited [2005] NSWIRComm 1011 APPLICANT Jennifer So PARTIES: RESPONDENT Pearl Computer Pty Limited FILE NUMBER(S): 5043 of 2004 CORAM: Connor C unfair dismissal - pro rata long service leave - small claim - termination of employment - monetary compensation CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Long Service Leave Act 1955 Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 Australasian Transport Officers' Federation v. Department of Motor Transport (1988) 25 IR 235 Busways v. Johnson (1994) 55 IR 255 Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 CASES CITED: Little v. Commissioner of Police (No.2) (2002) 112 IR 212 Loty's Case (1971) AR 95 Maldoc Pty Limited v. Bollard (unreported) Parker v. Capitol Painters Pty Limited (1996) 68 IR 100 HEARING DATES: 01/31/2005 DATE OF JUDGMENT: 02/11/2005 APPLICANT applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT respondent appeared in person DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Friday, 11 February, 2005 Matter No IRC 5043 of 2004 Jennifer So and Pearl Computer Pty Limited Application under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1011 Background 1 Mrs Jennifer So has lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. Mrs So had been employed as an accountant with Pearl Computers Pty Limited which is a wholesale distributor of computer software. The business is run by Mrs Shirley Suen and her husband. Mrs So's services were terminated on Tuesday, 10 August, 2004 after over five years of employment. She has claimed that the termination of her services was unfair and she has sought monetary compensation over it. The matter was allocated to me and set down for a conciliation and directions hearing on Wednesday, 8 September, 2004 and a mention on Thursday, 23 September, 2004. 2 Conciliation failed to settle the matter. I programmed it for arbitration, setting the matter down for a mention for that purpose on Monday, 22 November, 2004. I had directed the parties to file and serve material. That was done but there was no appearance by either party in the proceedings on Monday, 22 November, 2004 and attempts by my assistant to communicate with Mrs So were unsuccessful. The telephone number she gave had been changed and the mobile telephone to which she was directed was switched off. 3 In those circumstances, I dismissed Mrs So's Part 6 application for want of prosecution on her part in accordance with Rule 146. However, I reserved to Mrs So the right to seek the re-listing of the matter within one month and on Wednesday, 1 December, 2004 she requested that I do so. I reconvened the proceedings for mention on Friday, 10 December, 2004 and, ultimately, set the matter down for hearing on Monday, 31 January, 2005. Both parties were unrepresented in the hearing. Mrs So represented herself and Pearl Computers was represented by Mr Suen. They were content to rely on the written material which they had already provided in the hearing and the hearing proceeded on that basis. 4 Mrs So, with over five years of employment with Pearl Computers, has also claimed proportionate long service leave. It appears that she would be likely to have an entitlement in that respect. S.4(2)(a)(iii) of the 1955 Long Service Leave Act provides pro rata long service leave in the following circumstances: "...in the case of a worker who has completed with an employer at least five years service as an adult and whose services are terminated by the employer for any reason other than the worker's serious and wilful misconduct, or by the worker on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker..." But that is not a claim she may effectively mount in these Part 6 proceedings. 5 S.380(1) provides for claims of alleged underpayments as a small claim, ie less than $10,000.00, in proceedings before a member of the Commission, viz: "An industrial organisation may, during any proceedings before the Commission, make an application for an order under this Part and for the application to be dealt with under S.379 (small claims procedure)." But, as the words I have emphasised above indicate, that remedy is available only to an "industrial organisation", ie a trade union. That position was confirmed by the Full Bench of the Commission (Glynn and Hungerford JJ and Connor C) in its unreported decision of Wednesday, 10 February, 1999 in Maldoc Pty Limited v. Bollard [Matter No. IRC 2710 of 1997]. It is not open to an individual applicant under Part 6 and Mrs So would be obliged to pursue her claim in that respect before the local courts or an industrial magistrate. Her claim is confined in arbitrated proceedings before me to a determination of the fairness or unfairness of her dismissal, independent of any other entitlements which she may legitimately have against Pearl Computers. The Issues in Dispute 6 That having been said, the material before me is relatively brief. It is nevertheless, I believe, sufficient for me to form a conclusion concerning the issue in dispute between the parties. Mrs So was dismissed by Mrs Suen without notice. In her Part 6 application Mrs So recorded that: "...the employer gave me no notice of her intention to dismiss me. She called me to her office and told me I was dismissed. When I asked her why, at first she said she wanted to take over my job and later said she could not afford me. I notice that she has employed other staff recently..." Mrs So asserts that the other staff member employed was a relative. 7 Mr Suen recorded in a document which I propose to accept as a statement of contentions for Pearl Computers that he had dismissed Mrs So without notice: "...because I worry that she could delete or change any figures on the...account system after receiving notice..." And he claimed in that that document (in bold type) that "...the facts proved my concern correct...". Evidently, Mrs So did not pass on the passwords for the computer system to him until three days after her dismissal. On Tuesday, 12 August, 2004 Mrs So had written to Mrs Suen reminding her of the procedure with respect to the password and requesting her termination pay (two weeks) and pro rata long service leave. 8 In a letter also dated Tuesday, 12 August, 2004 Mrs Suen claimed that: "...I did find out that you try to hide a lot of things, even use your personal e-mail address for communicating with the Australian Taxation Office. So, I would like to remind you that please provide all of the information which company should be advised. Otherwise, I definitely will take the legal action if any loss be happened because you did not open the company's property [ sic ] ..." Conclusion 9 My task in this hearing falls under two distinct heads, viz: (i) to determine whether or not, in terms of S.84(1), the dismissal was "harsh", "unreasonable" or "unjust" [ Busways v. Johnson (1994) 55 IR 255 at p.261]; and (ii) if so, to determine whether reinstatement, re-employment or monetary compensation is the appropriate remedy, with preference being given to reinstatement and re-employment [ Little v. Commissioner of Police (No.2) (2002) 112 IR 212 at p.243]. Using the language adopted by Sheldon J of the former State Industrial Commission in Loty's Case (1971) AR 95 at p.99 the issue is fundamentally whether Mrs So received a "fair go". The words used in S.84(1), on which any Part 6 application relies, are "harsh", "unreasonable" or "unjust". But in Parker v. Capitol Painters Pty Limited (1996) 68 IR 100 I described the words "harsh", "unreasonable" and "unjust" (at p.104) in the following manner: "...the words 'harsh', 'unreasonable' or 'unjust' contemplate that long established principle of industrial fairness in the State unfair dismissal jurisdiction... which, to my mind, flows naturally out of the ordinary meaning of the words 'harsh' (meaning too severe, having regard to all the circumstances), 'unreasonable' (meaning immoderate, excessive or extravagant) and 'unjust' (meaning unfair, inequitable, undeserved or biased)..." In other words, the "fair go" concept. 10 The failure of an employer to comply with its established procedure when he dismisses an employee may point to an unfairness which, in the absence of compelling excuse, justifies reinstatement or other remedy [Australasian Transport Officers' Federation v. Department of Motor Transport (1988) 25 IR 235 at p.242 and Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 at p.468]. The Full Bench of the Commission (Wright J - President, Walton J - Vice President and Redman C) in Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 commented (at p.389) as follows in that respect: "…We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under S.84. Further…where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust…" 11 I am satisfied that the termination of Mrs So's services was unfair in that context. I do not believe that there were grounds to suggest that Mrs So was likely to have sabotaged the business interests of Pearl Computer, despite the suggestion made in the written material that was the case. I would have expected that an employee with over five years of employment would have been entitled to more courtesy at the time of her dismissal. There is nothing before me to support the contention that Mrs So was other than a loyal employee whose dismissal arose simply as a result of a decision to replace her with a relative. 12 Mrs So has sought only monetary compensation under S.89(5) in her claim and, in the circumstances, I am satisfied that the remedies of reinstatement or re-employment are not viable options for her in any case. In terms of S.89(5), the upper limit for monetary compensation is set as: "...an amount of compensation not exceeding six months' remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed..." S.89(5) is concerned essentially with loss of earnings and I am also directed by S.89(6) as follows: "When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment." Nevertheless, in D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Tabbaa C) commented (at p.363) that: "…the power in the Commission to make a money order, subject to the limitation on the quantum of compensation and the matters required to be taken into account by S.89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into consideration the matters identified in S.89(6), those matters are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made…" Therefore, provided always that I do not exceed the six month ceiling provided by S.89(5), there remains a certain flexibility in the determination of the appropriate level of monetary compensation and it is wrong to suggest that the combined effect of Ss.89(5) and (6) is no more than a simple mathematical calculation, ie identifying a sum representing the amount of income over the period of six months immediately prior to the dismissal, compared and contrasted with the remuneration received in the alternative employment and considered against the length of time that an employee remained out of work. 13 Mrs So has found alternative employment one month after her dismissal but on a salary level less than she had formerly received when she was working for Pearl Computers. In the circumstances, based on the figure of $673.00 which Mrs So recorded as her average weekly wage, and which Pearl Computers did not dispute in the hearing, I propose to order that it pay to Mrs So the sum of $3,500.00. O R D E R 1. Pearl Computer Pty Limited shall pay the sum of $3,500.00 to Mrs Jennifer So within 21 days. 2. This order shall take effect on and from Friday, 11 February, 2005. P J CONNOR Commissioner 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.