Industrial Relations Commission of New South Wales CITATION: Schneider and Vehicle Assembly Australia Pty Limited [2005] NSWIRComm 1109 APPLICANT: Lisa Maree Schneider PARTIES: RESPONDENT: Vehicle Assembly Australia Pty Limited FILE NUMBER(S): 34 of 2005 CORAM: Murphy C CATCHWORDS: Exparte Hearing - Unfair Dismissal - applicant performing administrative/driving duties dismissed for refusal to work without lunch break following abuse by employer when making unreasonable demands as to banking duties performed during normal lunch break - summary dismissal unwarranted and unfair - based on acceptance of applicant's evidence in absence of respondent who declined to attend Commission beyond first conference and despite being on notice to provide witness statements and liklihood of exparte hearing. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 07/20/2005 EXTEMPORE JUDGMENT DATE : 07/07/2005 APPLICANT: Lisa Maree Schneider LEGAL REPRESENTATIVES: RESPONDENT: No appearance DECISION: - 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C 7th July, 2005. Matter No IRC 34 of 2005 Lisa Maree Schneider and Vehicle Assembly Australia Pty Limited. Application by L Schneider re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 EX TEMPORE DECISION [2005] NSWIRComm 1109 1 This matter is now the subject of an ex tempore decision by me after exparte hearing of this matter on 20 June 2005. 2 The matter was required to be heard ex parte today because of the absence of the respondent, Mr Nahi Gazal. The application was the subject of conciliation on 28 January, at which point the respondent was represented by Mr Darren Hawes, who informed the Commission that he was the Financial Controller of the company. As to that conciliation phase, the matter did not settle at that conference, (where there was some representation by the respondent), nor on the second occasion on 28th February, 2005, when the respondent failed to appear. 3 Prior to proceeding with the hearing today, I also placed on record the efforts by the Commission to have the respondent comply with the directions as to witness statements. Sufficient to say at this point that the file is replete with a record of attempts by my assistant over a two and a half month period to have Mr Gazal provide his witness statements, including several pieces of correspondence written to the respondent. Some of that correspondence conveys to him, that unless he attends here today, the matter would proceed ex parte. The last of that correspondence, 14 June, states in the final paragraph: "Again if you fail to co-operate the hearing will proceed ex parte, especially as the file shows that you failed to attend the further conference on 28 February 2005". THE EVIDENCE: 4 The applicant's case proceeded on the evidence given by herself in a formal witness statement marked exhibit 1, which contained three attachments. One is a separation certificate dated 22 December, but sent to her after Christmas. Another is a letter addressed "To whom it may concern", from the National Bank signed by Rodney Norton, a relieving sales and service advisor. Also attached was a document from the St George Bank signed by David Farnsworth, Assistant Branch Manager, likewise addressed "To whom it may concern", both documents are dated 31 January 2005. 5 Also giving evidence here today was Mr Krzysztof Jezierski. Mr Jezierski is the partner of the applicant. His evidence was given beginning with his statement which was marked exhibit 2 in these proceedings. 6 The Form 7A application shows that the applicant was employed in office duties and driving duties. The business of the respondent is that of caravan manufacturer. The applicant has shown in her application as being employed from 27 September to 16 December 2004 and the reasons given for her dismissal were her refusal to do a particular job on 16th December last year. 7 The applicant sought monetary compensation. I might note at this stage that the maximum compensation that the Commission would be allowed to award in these circumstances is restricted to the period of her employment, although the applicant actually claims six months compensation. The period of her employment being for approximately two and a half months. Her weekly wage was $699.20 gross. 8 In the applicant's testimony before this Commission, she alluded to the particular day when she was dismissed, which was that of 16 December, and in her evidence she says this; at approximately 12.45 p.m. she was sent to the Liverpool Plaza St George Bank with ten cash cheques for various amounts to be deposited at the ANZ Bank, including two deposits at the National Bank for suppliers, Perfect Wood Moulding Pty Limited and Dometic Pty Limited. These organisations supply raw materials for the construction of caravans by the respondent. Upon her arrival at the secure parking station at Liverpool she noted that the time was 1.09 p.m., which made her realise that she was already in her lunch break. She proceeded to the bank and saw a fellow employee in the waiting line with a cash cheque which was for a payment to Joyce Foam Products. This employee was an upholsterer, and again this was for the payment of raw materials in the construction of caravans. As that particular cheque was over $1,000, the teller by the name of Asha was required to call the respondent by phone - that is, the signatory on the account to confirm that the employee could cash that cheque - Mr Gazal approved this cheque, but asked Asha, the teller, to give a message to the applicant not to cash the cheques yet until he called her. The significance of this was that the cheques were for the payment of various items of supply, and this would have meant that the respondent would not have had sufficient funds in the bank to pay those amounts. At 1.29 p.m. Mr Gazal called the applicant on her mobile with the simple message, "It is there, go now". She thereupon walked into the commercial teller line at the St George Bank and waited behind a single person on the line. 9 At 1.45 p.m. Mr Gazal called and asked where she was, to which she replied, "I'm still at the bank". He asked her then to fax the deposit slips and the Dometic Pty Limited bank cheque copy back to the office. The purpose of this, the applicant says, is that he required proof that that had happened to secure his next supply from Dometic Pty Limited, who were said by the applicant not to be prepared to release the goods without receiving a photocopy of the bank cheque drawn in favour of the account of the respondent and the deposit slip also stamped by the bank. Usually the applicant said that this was faxed to their office by at least 2pm to allow them to pack the order onto a pallet for dispatch to the respondent company. She gave evidence that the supplier, Dometic, does not usually hold-up the supply truck and do not release the goods until there is confirmation it has arrived. The applicant, having made all the deposits at the National Bank, then asked the bank teller to fax the payment confirmation back to her office, the bank advised her that they were not prepared to do that. She went back to the St George Bank and asked a teller by the name of Leila to fax this payment confirmation back to the office, who the applicant says at the time rolled her eyes and reluctantly took the paperwork from the hands of the applicant. The applicant gave evidence that she was aware that customers do not have the right to expect banks to fax such documents from the bank. There was no glue in the office which would have allowed the deposit slips to be stuck to the other document, and as the applicant had no cash on her at the time, only the bank cheque photocopy was actually faxed. 10 The applicant gave evidence of being embarrassed and went to the ANZ to deposit the various amounts of cash that she had. She was sitting in the ANZ Bank when she received another call from Mr Nahi Gazal, her employer, who began yelling and swearing at her over the phone. She had difficulty understanding him, so she left the line of customers in the ANZ and walked outside. Between the yelling and the swearing, she realised he was upset because the deposit slips were not also faxed from the St George Bank mentioned earlier. The applicant attempted to explain to him that she had no money for glue and the bank did not have any, and that the respondent should consider himself lucky that the bank actually faxed anything to him at all. The respondent advised her to go back to the bank and tell them to do it and hung up. 11 The applicant gave evidence of being stressed, crying and shaking from the abuse received from Mr Gazal. She went to the St George Bank, stressed and upset, Asha - mentioned earlier as the teller - served her, observing her upset offered her a glass of water; he actually took the paperwork out the back to the back office and came back in five minutes and returned the paperwork to the applicant. The applicant, upset and crying, went to the ANZ Bank and sat in line to deposit the money. 12 The applicant returned to work at around 2.30 p.m. She was still upset at being spoken to in the manner by the respondent. She gave evidence of being stressed, shaking and sweating profusely in fear of what he might say or do next. She returned the car keys by throwing them under his desk, at his feet, saying to him that she was going to lunch, and as she walked out the respondent yelled at her: "You had lunch waiting at the bank for the money to clear, you have to drive to Electus Distribution at Silverwater, Coast to Coast at Dundas and Thompson White Australia at Smithfield". The applicant replied: "I said, 'I can't drive like this'. He asked what was wrong as I had started to get upset and I replied, 'the way you spoke to me over the phone was wrong, even my partner does not speak to me that way. I have not had my lunch break, I finish at 4pm and I'm not going to get behind the wheel of a car with or without no insurance, upset and angry and risk mine or other road users' lives'". 13 Mr Gazal told the applicant that she had an ultimatum to either: "Drive now or go home and you'll be fired". 14 He advised her that he needed the stock today to get the van out of production. The applicant repeated the reasons for not driving that afternoon. She gave evidence that she believed that Mr Gazal appeared not to be worried about her decision either way, she asked Judy, the office manager: "Did you hear him yelling and screaming in there about half an hour ago", to which Judy said, "Yes", the applicant said, "That was me he was talking to". 15 She gave evidence that the said Judy gave the appearance of being shocked. The applicant was becoming more upset as the respondent had threatened to fire her and showed no remorse and feeling the way that he was in treating her. At that stage, she repeated to Mr Gazal that she was in no state to drive the vehicle and he again appeared not to care, but said to her: "You're done, over, finished". 16 He told Judy, the office manager, to write me a separation certificate which the applicant says she did not receive actually until 28 December. She received her weeks' pay the next day delivered by Judy, the office manager at which point she asked, where her separation certificate was, she received the reply from the respondent Judy: "You know how it is on Friday". 17 The applicant gave evidence of not receiving her termination pay until the following week and her superannuation entitlements never been paid for all the time that she worked. 18 I should also note now the evidence of Mr Jezierski. Mr Jezierski gave evidence that the applicant - who is his partner - on 16 December contacted him around 2.30 p.m. upset and advising him that the boss yelled at her, in which event he tried to calm her down. After that conversation the applicant rang approximately half an hour later to say: "The arsehole fired me because I wouldn't drive". 19 Mr Jezierski drove to the respondent's premises later that afternoon to confront Mr Nahi Gazal. He walked into the office and asked Judy, mentioned earlier, where Mr Gazal was, and discovered that he was apparently in the factory. He proceeded into the factory and said after inquiring as to the identity of the chap coming towards him, "are you Nahi?" and advising that he was, he then said: "You shouldn't treat employees like this, especially my girlfriend, no-one treats my girlfriend like that. I am a manufacturing union delegate and I know who you are, what you do and I am going to get everyone onto you, WorkCover, the union and the tax office, and do everything in my power to bring you down". He walked to the office and received the comment from Mr Gazal: "Are you threatening me?" To which he replied, "No, I'm not threatening you, I am going to do this". 20 As he left, Nahi asked Judy to call the police, although he was already leaving and he drove home. CONSIDERATION 21 It is appropriate to note firstly that the applicant was effectively summarily dismissed. 22 For summary dismissal to be justified the respondent must be entitled to say that the applicant behaved in a manner amounting to serious and wilful misconduct. In this instance, the refusal of the applicant to continue work without lunch was in my view hardly serious enough to justify summary dismissal, especially as there was no evidence of previous bad behaviour. 23 The evidence of Mr Jezierski backs up the evidence of the applicant, firstly that she was abused at around 2.30 p.m. and that at 3 o'clock, she was dismissed, contrary to the suggestion of the respondent representative, who appeared at the very first conciliation of this matter on 28 January, but gave no evidence. 24 At that time - that is 28 January - Mr Hawes described earlier as the Finance Manager, who appeared for the respondent on one occasion, claimed that the applicant had abandoned her employment and said several things to support that. But mere assertions from the bar table at a pre-trial conference are hardly comparable or even relevant to the evidence before me today. 25 My determination is firstly, that I have no reason to disbelieve the applicant's evidence and neither do I disbelieve the less crucial account of Mr Jezierski, even though he is partner of the applicant and cannot be said to be an absolutely independent witness. I must say that in the absence of any cooperation in this process by the respondent, and after my assessment of both witnesses, I am prepared to accept their evidence as reliable. 26 The applicant was unreasonably abused in circumstances where Mr Gazal had made unreasonable and even humiliating demands upon the applicant and had no right to expect certain unconventional transactions to happen at the bank. I appreciate that not all employers are quite as solvent as others, but what he failed to take account of was that he was asking and demanding of the applicant some unusual requirements, which embarrassed her with bank staff. 27 The applicant's evidence is correct that he was very lucky to have the bank staff do what they did and for him then to continue this abuse of the applicant is quite unjust. Also unfair, harsh, unreasonable and unjust in these circumstances before me are the actions of Mr Gazal when he informed the applicant that she had already had lunch, and that she should proceed to make other deliveries. 28 Mr Gazal at the crucial time should have apologised for his abuse of Ms Schneider, but instead went further to deny her a lunch break, requiring her to drive out again to procure parts for manufacture. The mere fact that she is an employee and often seen by some as a servant, does not excuse the sort of conduct that Mr Gazal indulged in. 29 I daresay that even if the applicant had walked out she had a good case for constructive dismissal. 30 I accept the evidence, however, of the applicant that she was effectively dismissed, if she was not prepared to drive she was to leave. I accept her evidence which showed a clear ultimatum, which it was reasonable to refuse. The respondent instructed the administrative officer, Judy, to prepare her pay, although I notice that she did not receive that for some time. I also note that the respondent has failed to pay superannuation entitlements, which I note is an indication of his overall conduct in these proceedings. 31 I have no reason not to provide the applicant in these proceedings with the maximum compensation available to me in circumstances where her dismissal was clearly harsh, unjust and unreasonable. O R D E R S 32 Based on the twelve weeks of the applicant's employment, I award an amount of $8,400 gross to the applicant to be paid within twenty-one days of the release of this decision by the respondent in this matter, Vehicle Assembly Australia Pty Limited. J P MURPHY Commissioner oOo 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.