Julieanne Tiernan v Vicki Mills trading as Cafe on Horton [2005] NSWIRComm 1157

Industrial Relations Commission of New South Wales

CITATION: Julieanne Tiernan v Vicki Mills trading as Cafe on Horton [2005] NSWIRComm 1157

APPLICANT Julieanne Tierman PARTIES: RESPONDENT Vicki Mills trading as Cafe on Horton

FILE NUMBER(S): 7269 of 2004

CORAM: McLeay C

CATCHWORDS: unfair dismissal - resignation following request to sign employment agreement - allegation of intimidation - contradictory evidence by applicant - AVO against employer's father - some evidence of no value - no intimidation found - application dismissed

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 08/22/2005

DATE OF JUDGMENT: 09/27/2005

APPLICANT John Law - John Law and Associates LEGAL REPRESENTATIVES: RESPONDENT Mr William Mills

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: McLEAY C

27 September 2005

Matter No IRC 7269 of 2004

Julieanne Tiernan and Vicki Mills trading as Café on Horton

Application by Julieanne Tiernan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2005] NSWIRComm 1157

1 This is an application by Julieanne Tiernan for unfair dismissal against Vicki Mills trading as Café on Horton pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Ms Tiernan was dismissed from the position of cook and waitress on 3 December 2004, having been employed by Ms Mills since 22 October 2004. 2 There were a number of issues between the parties, arising at least in part from the employment relationship and the claim for unfair dismissal. Firstly, Ms Tiernan took out an Apprehended Violence Order (AVO) against Ms Mills' father, Mr William Mills. Mr Mills was both Ms Mills' representative in these proceedings and an essential witness for her case. Secondly, Mr Mills had reported an alleged understatement of income by Ms Tiernan to Centrelink and/or the Australian Taxation Office, resulting in further friction between the parties. Thirdly, Ms Mills had said that stealing and sabotage had occurred when Ms Tiernan had been at work. The first of these issues caused delay to these proceedings. 3 The matter was listed for hearing on 22 August 2005, when Ms Tiernan gave evidence on her own behalf, Ms Mills and Mr Mills gave evidence for the respondent, and a number of statements were accepted into evidence without the witnesses being required to attend. 4 Amongst those not required to attend was Brenda Kennedy, who provided two statements, one for each of the parties. One of those statements read as follows: I was called to the back office of Café on Horton on the afternoon of Monday 29 th of November 2004 with my employer, Vicki Mills and her father, Bill Mills. A pen was placed in my hand and I was asked to sign a document printed off the computer by the father, who stated it was a workplace agreement. I had not seen or discussed this previously. I signed it as I considered I had no choice. I left the employment one week later. The other said: My name is Brenda Kennedy. I was working at Café on Horton .05 [sic]. And was ask to sign a work agreement Form. I did willingly and was not bullied in any way. 5 I have no way of assessing the validity of either of these statements. Either one or other of the parties has exercised some coercion to have Ms Kennedy sign an untrue statement, or Ms Kennedy is so wiling to please that she wrote whatever she thought would suit the party without regard to the truth. I find both these options unacceptable. I can give no weight to either of Ms Kennedy's statements. 6 Susan Tyrrell, another employee at the time, provided a statement in which she said no pressure was put on her to sign a work agreement. Her statement of evidence read relevantly as follows: I ...... was employed by Vicki Mills from Cafe on Horton, Port Macquarie. During this time I was asked to sign an Employment Agreement Form by Vicki Mills and her father Mr William Mills. Mr Mills and I went through this agreement regarding my employment, wages, job requirements, safe food practices (OH&S) etc. After doing so, I was then asked to sign this document which I did. Under no circumstances was I put under any pressure to sign this document. I found the said document to be straight forward, reasonable and fair, and nothing to be concerned about. 7 Terrance Curley, a lawyer and customer of the respondent, said that Ms Tiernan had told him that she was going to leave her job on Friday 3 December 2004. The conversation had taken place either on the morning of 3 December or the previous day. During the day in question, Ms Tiernan had also told a fellow employee, Marguerite McDonald, that she was leaving that day. Neither of these statements were denied by the applicant who did not require either Mr Curley or Ms McDonald to attend for the purpose of cross-examination. 8 Ms Tiernan gave evidence that she had been called out the back of the café on 29 November, as she had occurred with other employees during the day. She was asked to sign an agreement. She said she felt intimidated by this, with Ms Mills and Mr Mills on either side of her as Mr Mills put a pen in her hand. She told them she was not comfortable and would think it over and discuss it with her solicitor. On the following Thursday, 2 December, Ms Tiernan said she was asked about the agreement and was told by Ms Mill Ms Tiernan gave evidence that she had been called out the back of the café on 29 November, as she had occurred with other employees during the day. She was asked to sign an agreement. She said she felt intimidated by this, with Ms Mills and Mr Mills on either side of her as Mr Mills put a pen in her hand. She told them she was not comfortable and would think it over and discuss it with her solicitor. On the following Thursday, 2 December, Ms Tiernan said she was asked about the agreement and was told by Ms Mills: It's like this, if the agreement isn't signed by Friday don't bother coming in on Monday. We can't employ you if you won't sign the agreement. 9 The next day, Ms Tiernan said that Ms Mills said "see you on Monday then?" to which Ms Tiernan replied: No. I cannot take your or your father's bullying behaviour any more. Can you give me my pay now? Ms Tiernan left, returning an hour later to collect her pay and her personal belongings. 10 Ms Mills and Mr Mills denied any intimidating behaviour in relation to Ms Tiernan. The meetings with all staff were conducted in similar style, with Ms Mills signing the agreement and Mr Mills conducting the larger part of the meeting while his daughter returned to her duties in the café. The respondent's mother, Mrs Jeanette Mills, stated that the meeting with Ms Tiernan lasted about two or three minutes with Ms Mills present, and a further 10 or 15 minutes. At that stage Mrs Mills needed to enter the office where the meeting was being held. She witnessed a light-hearted situation, not one of intimidation or discomfort. 11 Ms Mills agreed that she had told Ms Tiernan she could not employ her unless an agreement was signed, confirming the conditions of employment. She had not provided a deadline. She said that Ms Tiernan had not indicated any intention to resign, but had simply refused to sign the document because she had never signed anything previously. Ms Mills was taken by surprise on the afternoon of 3 December when Ms Tiernan said she would not be returning to work the following week. 12 Ms Mills suggested that Ms Tiernan's refusal to sign the agreement and her subsequent resignation related to her earlier request to be paid in cash. She surmised that Ms Tiernan simply did not want a written record relating to her income. Ms Tiernan denied this was so. Previously, Ms Tiernan had worked 8½ to 10 hours a week, whereas with Ms Mills she had worked four times as much. 13 Mr Mills provided an invoice for cakes made by Ms Tiernan in the name of Brenda Johnson. Ms Tiernan agreed that the items and the amount detailed on the invoice related to items provided by her and the amount paid to her, but denied any knowledge of the invoice. This evidence was not conclusive and was of no value to the Commission in determining the claim for unfair dismissal. 14 During the meetings held on 29 November, Mr Mills said that he told each of the employees that there were frequent cash discrepancies but that he and his daughter did not know who was responsible for the discrepancies. It was only after the dismissal that he found that the discrepancies occurred only on the days that Ms Tiernan worked, and they stopped when she left. 15 On the basis of the descriptions given by the various witnesses, I am satisfied that the atmosphere of the meeting between Ms Tiernan and Mr Mills was not one of pressure and intimidation, although I accept that any employee can feel tense when called in to a meeting with an employer. The evidence suggests that Ms Tiernan overreacted to her employer's request to sign an agreement for her own reasons. I am satisfied that she was provided with a copy of the proposed agreement in order to consider it and to receive any advice she wished to obtain. I have no doubt that no immediate deadline had been put upon her and that Ms Mills had expected Ms Tiernan to continue in her employment. Ms Tiernan did not discuss any aspects of the proposed agreement with Ms Mills. Rather, the evidence shows that Ms Tiernan chose her own timing for leaving her employment and that she did so of her own accord. 16 As to the issues between Ms Tiernan and Mr Mills which resulted in the issue of an AVO, there was nothing before me to suggest that there was any intimidation of Ms Tiernan affecting her employment relationship prior to her decision to resign. In her affidavit, Ms Tiernan said that Mr Mills often came to the business and that "I found him to be at times a difficult and aggressive man." She did not mention any specific behaviour or complain about him to Ms Mills. 17 A number of areas of the evidence cause concern. Firstly, Ms Tiernan in her affidavit said that a pen was put into her hand at the meeting on 29 November by Mr Mills. Under cross-examination she insisted it was put in her hand by Ms Mills. Secondly, Ms Tiernan gave a description of the meeting of 29 November that inferred it took a few minutes with Mr Mills and Ms Mills present throughout, in an atmosphere of intimidation. Ms Tiernan did not cross-examine Mrs Mills who said it took at least 15 minutes, said that Ms Mills had left the meeting after the first few minutes and described the atmosphere as light-hearted. Thirdly, Ms Tiernan said that Mr Mills and Ms Mills were watching her every move during the days prior to the termination of her employment, yet admitted she may have been wrong when confronted with evidence that Mr Mills had been in Sydney throughout the period in question. Fourthly, Ms Tiernan denied having an ABN, then admitted she had one. These are a few examples of the contradictions in Mrs Tiernan's evidence. 18 It is of particular concern that some of the initial statements that were proven to be untrue came from a statement tendered by Ms Tiernan in proceedings to obtain the AVO against Mr Mills. It was very clear during the proceedings before me that Ms Tiernan made a number of statements that were untrue and which appear to be designed to discredit Mr Mills and/or Ms Mills. It follows that I must accept the evidence of the witnesses for the respondent whenever there is a difference between their evidence and that of Ms Tiernan. In particular, I accept Ms Tyrrell's description of the meeting of 29 November as typical of the series of meetings with employees held on that day. 19 The result of the number of blatant untruths emerging from the evidence is that Ms Tiernan has not made out a case for unfair dismissal. There was no victimisation by her employer or by Mr Mills acting for his daughter. There was no undue pressure to sign the proposed agreement. There was no attempt by Ms Tiernan or refusal by Ms Mills to discuss the terms of the proposed agreement, which could have been done during the time of Mr Mills absence in Sydney. I accept that Ms Tiernan resigned for her own reasons. She chose the time and told both a co-worker and a customer that she intended to do it. She then walked out without notice relying on a pretence which was, on the evidence, wholly fabricated by her. 20 The application is dismissed.