Industrial Relations Commission of New South Wales CITATION : EVAN AVADES v KINGSFORD CAR WASH PTY LIMITED [2001] NSWIRComm 202 APPLICANT: Evan Avades PARTIES : RESPONDENT: Kingsford Car Wash Pty. Limited. FILE NUMBER: 2637 of 2000 CORAM: Grayson DP Whether dismissal or abandonment of employment - reliability of evidence - onus on applicant to establish intervention of Commission is warranted - failure to so establish fatal to application CATCHWORDS : Held, on balance of probabilities no dismissal - no warrant for Commission's intervention - application dismissed LEGISLATION CITED : Industrial Relations Act 1996 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Bigg v NSW Police Service (1998) 80 IR 434 CASES CITED : Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565 Re Homebush Abattoir [1966] AR (NSW) 386 Shop, Distributive and Allied Employees Association (NSW Branch) v Jewell Food Stores (1987) 22 IR 1 Coles Myer Ltd v Shop Distributive and Allied Employees Association (NSW) (1989) 27 IR 299 HEARING DATES: 08/28/2001 DATE OF JUDGMENT: 09/05/2001 APPLICANT: Ms.N.Alameddine Agent LEGAL REPRESENTATIVES: RESPONDENT: Mr.M.Sahade Counsel JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: GRAYSON DP DATE: 5 September 2001 MATTER NO. 2637 OF 2000 EVAN AVADES and KINGSFORD CAR WASH PTY LIMITED Application by Evan Avades re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 _____________________________________________________________________ 1 The applicant, Mr. Evan Avades, seeks relief under Part 6 of Chapter 2 of the Industrial Relations Act 1996 from alleged unfair dismissal by the respondent, Kingsford Car Wash Pty. Ltd. 2 Conciliation was attempted without success and after considerable delay in the preparation of the applicant's case, the matter came on for hearing on 28 August 2001. 3 At hearing the applicant was represented by Ms.N.Alameddine, of Employment Help Services and Mr.M.Sahade of counsel appeared for the respondent. 4 Evidence in both oral and affidavit form was taken from the applicant (Exhibit A) and on the respondent's side, from Mr.A.Sahade, company director and a manager of the business (Exhibit 3) and Mr.M.Anjoul, also said to be a manager of the business (Exhibit 4). 5 In addition, there was documentary evidence from both sides in the form of an Employment Separation Certificate on the applicant's side (Exhibit B) and from the respondent's side, two medical certificates from Dr.A.Yousif, the applicant's treating doctor (Exhibit 2) and a letter dated 22 June 2001 from the respondent to solicitors then acting for the applicant (Exhibit 1) about which more will be said shortly. 6 For the applicant to succeed, he must first establish as he asserts that he was dismissed from the respondent's employ, an allegation which is vigorously denied by the respondent. 7 The applicant deposed to the emergence of symptoms of right-sided inguinal hernia towards the latter part of 1999 and to surgical repair of the hernia in February 2000. 8 The surgery was carried out in Holroyd Private Hospital following a financial arrangement which had been come to between the applicant and his boss, Mr.A.Sahade, by which either money would be advanced to and then repaid by the applicant as Mr.Sahade contends or by which the total cost would be met by Mr.Sahade, as the applicant contends. 9 Either way, it is clear that the performance of the remedial surgery in a private hospital enabled the applicant to avoid the public hospital waiting list on which he had been placed by his specialist Dr.Berry and which, it was thought may result in delays of up to six months. 10 It was said by the application that his symptoms emerged in early December 1999 in the course of his employment (see Exhibit A - par 8) although he later conceded that his memory of this and other things was less than perfect. 11 He conceded when they were shown to him that he presented medical certificates to the respondent in support of short periods in absence in mid-November 1999 and late August 1999 and clearly as the certificates reveal (Exhibit 2) he was relevantly afflicted with symptoms prior to the time to which he initially deposed. 12 There were, as the transcript will reveal, when it is taken out, a number of concessions made by the applicant in cross-examination going to the imperfect state of his memory and I am bound to say that his evidence generally had a character of unreliability about it which when challenged in cross examination or faced with conflicting evidence on the respondent's side of the record, makes it difficult to accept. 13 For example the applicant asserts that he suffered a work-related hernia injury and so informed his boss in early December 1999. 14 He did not then and has not since served the respondent with a claim for workers compensation stating, when taken to this in cross examination, that he was asked not to by Mr.A.Sahade who offered instead to pay for his operation. 15 He said he agreed to do this because he loved his job. 16 Furthermore and for the same reason as I understood his evidence he agreed to take or at all events, took accrued annual leave to cover his absence from work following the operation. 17 Evidence on the respondent's side suggests that the applicant used Mr.A.Sahade's credit card to pay for his hospitalisation and then upon resumption of work, took Mr.Sahade to task when he noticed $100 being deducted from his weekly pay ostensibly for remibursement of monies advanced in that way by Mr.Sahade. 18 He said his employer thereafter continued to deduct $100 from his weekly pay but gave him $100 each week from the cash register. 19 The rationale for such conduct on the employer's behalf was never explained and in the face of direct contradiction it is evidence which has little to commend it in my opinion. 20 Both Mr.A.Sahade and Mr.M.Anjoul deposed to the applicant acknowledging the existence of an agreement on his part to repay at the rate of $100 per week monies advanced to him by Mr.Sahade for his operation. 21 Mr.Sahade asserted and vigorously maintained that the applicant told him, when asked why he was taking time off work and why he was limping when he was at work, that he (the applicant) had suffered a hernia whilst lifting a car engine in the backyard at home. 22 It was then, according to Mr.Sahade's evidence, upon learning of the applicant's plight and the liklihood of him spending up to six months on the public waiting list, that he offered to advance him by way of a repayable loan the amount of money necessary to secure a bed in Holroyd Private Hospital. For this purpose, according to Mr.Sahade he gave the applicant and authorised the limited use of his credit card details. 23 It is the respondent's case that the applicant had no reason to be surprised having availed himself of that opportunity, when money was later taken from his pay. 24 It is important, as I am disposed, to briefly set out those matters as a background to the proposition for which the respondent strongly contends and that is, simply put, that the applicant walked away from or abandoned his employment in order to avoid repaying his debt. 25 Although there is some evidenciary controversy as to this, it seems clear from the unchallenged evidence of Mr.Anjoul (Exhibit 4) that the applicant was seen working at the Wax Car Wash in Redfern two weeks after he last worked for the respondent on 19 May 2000. 26 For some time prior to 19 May 2000, according to Mr.Sahade's evidence, the applicant showed a disinclination for work "showing up when he felt like it" (Exhibit 3). 27 He said he rang the applicant on a number of occasions to find out why he was not at work and the applicant said "I am coming" but did not show up. 28 He said he would often ask the applicant's brother - also and still an employee of the respondent and Mr.Anjoul to make the same approach to the applicant who would tell them the same thing. 29 Mr.Sahade said on one occasion he pointed out to the applicant that having been afforded assistance in the form of a loan, he was obliged to "come to work and work faithfully" (Exhibit 3). 30 I took that to mean, among other things, in the interests of ensuring that the loan was repaid but it may also be, as the respondent contends, a basis on which to infer that dismissal in such circumstances was highly improbable. Mr.Anjoul who was not cross examined, deposed to having a conversation with the applicant wherein the applicant said words to the effect: "I have made arrangements with Anthony to deduct $100 - from my wages to pay him back for my hernia operation. I am going to leave work if he keeps deducting money from my pay." (Exhibit 4) 31 Coming then to the events of the last day of the applicant's work with the respondent namely 19 May 2000, it is the applicant's evidence that he received an irate and abusive phone call from Mr.Sahade whose opening salvo was allegedly: "I cannot fucking believe you are not here" 32 According to the applicant's version of events or at least the one to which he adheres, he explained to Mr.Sahade that it was his day off and he had made other arrangements to which Mr.Sahade allegedly responded with the ultimatum: "either you come now or do not bother coming back" and with a few more well chosen words not necessary to repeat here allegedly hung up the phone. 33 The applicant said he then rang Mr.Sahade back and enquired if he (the applicant) had been sacked whereupon Mr.Sahade is alleged to have unleashed an expletive-ridden tirade of abuse culminating in threats which might be described as anatomical in nature. 34 Undaunted, the applicant then rang again on this occasion, he said, wishing to speak to his brother Emad who, it may be recalled, also works for the respondent. 35 Instead he got Mr.Sahade again who allegedly told him to: "fuck off, dick head". 36 When the applicant was taken in cross examination to the version of that day's events to which he deposed in the application his then solicitors prepared and filed on his behalf, he did not in my opinion explain satisfactorily the differences in the content of the conversations or the number of telephone calls said to have been made on 19 May 2000. It is a matter of significant concern in my mind, that the version of events to which he deposed in the affidavit sworn some ten months after those events contains so much material not contained in the version to which he deposed in his application less than one month after those events. 37 He denied when it was put to him in cross examination that he had made up or invented the most recent version stating, as I understood him, that his memory at the time of the earlier deposition, was poor. 38 The question may well be asked how it is that memory, in ordinary circumstances, improves with time but in the result, I would not be confident in accepting the version he relies upon as an accurate portrayal of the events of the day. 39 I say that noting among things that he was at the time of the earlier deposition, in the hands of competent solicitors who, it may be safely assumed, advised him of the need for such accuracy in matters given on oath. 40 For his part, Mr.Sahade denies speaking to the applicant on 19 May 2000 or at any other time in the manner or in the terms alleged, asserting instead that the one conversation between them on that day went more along these lines: Sahade: "I can't believe that you are not here at work. And I can't believe that I have to continually ring you and chase you to come to work. It would seem you just don't want to come because you don't want to pay me back the money." Applicant: "Get fucked, you had to pay the money because I injured myself at work" Sahade: "That i s a lie and if that were so, it has nothing to do with me, you should have lodged a workers comp claim." Applicant: "Get fucked, I am not working for you anymore." He then terminated the phone call. 41 Further to that, it was Mr.Sahade's evidence that even after the applicant's abovementioned remarks he continued to ask the applicant's brother and Maroun Anjoul to ring the applicant and ask him to come to work. 42 He said he stopped doing this when Maroun Anjoul reported seeing the applicant at work at the Wax Car Wash two weeks afterwards. 43 Further yet, when solicitors then acting for the applicant caused an unfair dismissal application to be served upon the respondent, Mr.Sahade sent the following letter in response: Simon Filer Solicitor Somerville & Co By Fax: (02) 9922 7641 Dear Sir, Re: Evan Avades v Kingsford Car Wash Pty Limited We refer to the above and your client's application before the Industrial Relations Commission. The allegations of fact contained in the annexure to the application are denied. Please note the manager has requested your client Evan Avades to return to work several times since he left but he refuses to do so. Please be advised that Evan Avades is not and never has been terminated or dismissed and the company wishes him to return to work immediately. Accordingly the above application is inappropriate and should the matter proceed, this letter may be relied upon by the company in defending the proceedings. Should your client not wish to return to work, please advise of the reasons why not in a formal letter of resignation. We await your urgent response. Yours faithfully Kingsford Car Wash Pty Limited (Exhibit 1) 44 When it was shown to him in cross-examination the applicant could not recall seeing such a letter. 45 When it was then pointed out to him that it was the very letter he had annexed to an earlier statement he had signed, he conceded that he had seen it although, in some way which was not explained, it looked different. Again I did not find him to be a convincing witness. 46 Furthermore, the forwarding of such a letter by the respondent, to my mind, lends considerable weight to the proposition for which it contends namely, that there was no dismissal. 47 Conversely, the Employment Separation Certificate (Exhibit B) relied upon by the applicant in support of the proposition he did not cease work voluntarily is of dubious value given that the question on the certificate: "was employment terminated due to employee ceasing work voluntarily?" was not answered at all. 48 I do not think that the applicant can call the certificate in aid of the proposition for which he contends merely because the employer did not answer "yes" to the question. 49 This is particularly so in the light of Mr.Sahade's evidence that the certificate was completed in that way in order to assist the applicant, at his request, in applying for unemployment benefits. 50 I apprehend the applicant may have been precluded from obtaining such benefits, at least for a period of time, if the question had been answered in the affirmative. 51 The case law makes it abundantly clear in matters of this type that the applicant bears the onus of proof. 52 In Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 at 279 it was expressed this way: "The onus is on the applicant to establish that intervention is warranted …he must discharge the onus which rests on him to satisfy the Commission that his is a proper case for the Commission's intervention." (see also Bigg v NSW Police Service (1998) 80 IR 434 at 452-456; Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565; R e Homebush Abattoir [1966] AR (NSW) 386. 53 That onus need only be discharged to the civil standard or in other words, on the balance of probabilities (see Shop, Distributive and Allied Employees Association (New South Wales Branch) v Jewell Food Stores (1987) 22 IR 1; Coles Myer Ltd v Shop, Distributive and Allied Employees Association (NSW) (1989) 27 IR 299 and others). 54 In this case, after careful consideration of the matters given in evidence and the submissions on both sides of the record, I am not convinced that the applicant was dismissed from his employment. 55 It is more likely, on balance, that for reasons best known to himself about which I express no concluded view, he chose not to continue in the respondent's employ. 56 In such circumstances, the application must fail and I dismiss it accordingly. 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