Industrial Relations Commission of New South Wales CITATION: Ledger - V - Gemtrip Pty Ltd Trading As Travelscene Bathurst [2005] NSWIRComm 1030 APPLICANT Miriam Ruth Ledger PARTIES: RESPONDENT Gemtrip Pty Ltd Trading As Travelscene Bathurst Ben Gelin Solicitors FILE NUMBER(S): 3382 of 2003 CORAM: Cambridge C CATCHWORDS: Unfair Dismissal - termination of employment - procedural errors - hasty and harsh method of implementation of dismissal - insufficient evidence to establish substantive basis for dismissal - dismissal held as harsh, unreasonable and unjust - reinstatement or re-employment impractical - compensation Ordered LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 02/02/2005 DATE OF JUDGMENT: 03/08/2005 APPLICANT self represented LEGAL REPRESENTATIVES: RESPONDENT Mr B Gelin solicitor Ben Gelin Solicitors DECISION: - 2 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 8 March 2005 Matter No IRC 3382 of 2003 Miriam Ruth Ledger - V - Gemtrip Pty Ltd Trading As Travelscene Bathurst Application by Miriam Ruth Ledger re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2005] NSWIRComm 1030 1 This matter involves a claim for unfair dismissal. On 20 June 2003, Miriam Ruth Ledger (the applicant), filed an application for Relief in relation to unfair dismissal. The application was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The application named the respondent employer as Gemtrip Pty Ltd T/a Travelscene Bathurst. The employer has subsequently been more accurately identified as Gemtrip Pty Ltd, ABN 29071586902, trading as Travelscene Bathurst, (the employer). 2 Following unsuccessful attempts at resolving the claim by way of conciliated settlement, the matter proceeded to Arbitration involving Hearing on 2 February 2005, in Bathurst. BACKGROUND 3 The applicant is a female who was some sixty two years of age at the time of her alleged unfair dismissal on 30 May 2003. The applicant had been employed for a period of approximately two years and eleven months. 4 The employer relevantly operates a Retail Travel Agency located in Bathurst. The applicant was engaged in a position described as Senior Travel Consultant. The work of the applicant involved various administrative and clerical tasks associated with the Retail Travel Agency business. In addition the applicant attended as a Tour Escort for groups of clients that had made travel arrangements through the employer's operation. It appeared that the applicant was involved in at least two tour group escort trips during the period of her employment. 5 Although the applicant was initially engaged on a full-time basis, her working hours were reduced to part-time in April of 2002. The part-time hours of work involved the usual duties of the applicant associated with and whilst located in the employer's retail office premises. The Tour Escort work provided for slightly different engagement of the applicant. 6 In March and April of 2003, the applicant was involved as a Tour Guide for a trip through New Zealand of approximately twenty days duration. Prior to departure on the New Zealand tour, the applicant was provided with payment of wages to cover the duration of the tour. During the New Zealand tour the applicant kept a record of expenses incurred for which she later made claim upon the employer. In addition to various out of pocket expenses incurred during the New Zealand tour, the applicant also made claim for payment of 50% of the cost of her passport and her travel insurance premium. 7 On the day after the applicant submitted her claim for reimbursement of expenses in respect to the New Zealand tour she was dismissed. The applicant's dismissal on 30 May 2003, involved the employer telephoning the applicant at home prior to her scheduled commencement for work on that day and telling her that the employment was to cease. The telephone advice of dismissal included the suggestion that the basis for dismissal involved economic considerations such that the applicant's position was redundant. 8 During the telephone advice of dismissal the employer indicated that various items of the applicant's property including a filing cabinet, a table and several boxes of stationery would be removed from the Travelscene office and taken to the applicant's residence immediately. Within minutes of the conclusion of the telephone advice of dismissal, the employer delivered the applicant's possessions to her home and thus finalised the applicant's dismissal. 9 The applicant has asserted that her dismissal as implemented on 30 May 2003, was unfair. The applicant has not sought reinstatement or re-employment but has instead asked that the Commission grant Orders for monetary compensation as remedy. THE EVIDENCE 10 There were very few matters of significant factual contest that arose from the evidence presented in this case. The circumstances involving the applicant's dismissal on 30 May 2003, were not subject to any significant challenge. 11 There was evidence regarding the financial difficulties that the employer's business suffered particularly as a consequence of the September 11, 2001 terrorist attacks in the USA, and the collapse of Ansett Airlines and the Traveland Company. In large part the evidence of the economic difficulties facing the employer was not the subject of challenge. 12 The applicant was the only witness called in support of the claim. Ms Lisa Nicole Hall, Director of the employer, provided the substantial evidentiary material advanced on behalf of the employer. In addition evidence was also provided by the employer's accountant, Mr Geoffrey Finall. As there was very little direct evidentiary contest in this instance it has been unnecessary to record any detailed observations of the various witnesses. THE CASE FOR THE APPLICANT 13 The applicant appeared unrepresented and made very brief oral submissions. Several days after the conclusion of the Hearing on 2 February 2005, the applicant endeavoured to provide further written material for consideration by the Commission. The Commission has rejected this subsequent written material and I have directed that my staff advise the applicant that it would be improper for the Commission to view such late material. In addition and as an alternative, my staff have been asked to indicate to the applicant that if she sought to have the proceedings re-opened to the extent that further submissions from each side could be provided, then such an opportunity would be arranged. There has been no further request for any re-opening of proceedings. 14 The applicant stated that she believed that she had been unfairly and unethically dismissed. The applicant submitted that she did not dispute the reason for her dismissal relating to alleged economic downturn, instead the applicant stressed that she strongly objected to the manner in which the dismissal was implemented. The applicant stressed that she believed that the manner of dismissal was unethical and unfair. THE CASE FOR THE EMPLOYER 15 Mr B Gelin, solicitor, appeared for the employer. Mr Gelin submitted that the applicant's dismissal was not unfair. Mr Gelin submitted that the reason for the applicant's dismissal was the uncontested downturn in the employer's business. 16 Mr Gelin stated that it was clear that the applicant had become quite upset about the circumstances surrounding her dismissal. However, according to the submissions of Mr Gelin, the applicant's obvious emotion should not translate into a finding that the dismissal was therefore unfair. Mr Gelin stressed that the basis for the applicant's dismissal was well established. Mr Gelin drew the Commission's attention to the uncontested evidence about the financial deterioration of the employer's business operation. Mr Gelin submitted that there was therefore proper substantive basis for the applicant's dismissal. 17 Mr Gelin made further submissions which acknowledged that the employer had mistakenly failed to provide the applicant with appropriate notice in respect to dismissal. Mr Gelin said that this mistake occurred as a consequence of advice provided by the "Industrial Relations Department" which was obtained on the basis that the employer wrongly described that the applicant was engaged as a casual. Mr Gelin submitted that this mistake had been acknowledged by the employer throughout proceedings and should not operate so as to cause the dismissal to be found to be unfair. 18 Mr Gelin made further submissions which criticised the post-dismissal conduct of the applicant. In this respect Mr Gelin submitted that the employer had endeavoured to settle the unfair dismissal claim and had offered to make good the mistake regarding the absence of notice or payment in lieu thereof. Mr Gelin submitted that the applicant had rejected genuine, earnest attempts made by the employer to settle the complaint. Mr Gelin submitted that the application should be dismissed and that an Order for Costs should be made in favour of the employer. CONSIDERATION 19 The Determination of this claim has been reasonably straightforward. Essentially the applicant's complaint was about process rather than substance. The evidence about the process that the employer adopted when dismissing the applicant was broadly uncontested. The following extract from the Affidavit of Lisa Hall, the employer's Director encapsulates the fundamentals of this case: "...I telephoned Mrs Ledger in the morning of the 20th [sic] May 2003 and said words to the effect "I am going to have to let you go due to economic reasons. I will bring your belongings up to you now." She said words to the effect, "Now is not a good time." I replied with words to the effect "I am on my way I will be there in a few minutes." I then handed Mrs Ledger a cheque for her last week's wages minus the one day and one hours she had off for personal reasons. I believed as she was casual I did not have to give her any warning. I am now advised differently and have attempted to make monetary compensation to Mrs Ledger for my mistake." Exhibit 3 @ paragraph 10. 20 To dismiss an employee by way of telephone call is inherently undignified. Unless there are compelling reasons to justify advice of dismissal by way of telephone call, such manner of implementation of dismissal will usually render the dismissal to be harsh and unreasonable. In this case, there was no basis upon which to establish any justifiable reason for the need to tell the applicant of her dismissal by way of telephone call. It appeared that the employer decided to advise of the dismissal by way of telephone call as part of some hasty determination that included the removal of the applicant's property from the employer's retail offices so that all aspects of the applicant's employment would be severed very quickly. 21 Consequently the manner of implementation of dismissal was something that would more usually be observed in cases involving gross and wilful misconduct as opposed to a dismissal allegedly arising from economic necessity. No plausible explanation has emerged as to why the employer would choose to dismiss summarily in such circumstances. 22 In some cases where the procedure used for dismissal was clearly erroneous, an underlying substantive basis could provide for justification for dismissal to the extent that the procedural errors may be overcome. In this instance however, the balance that is sometimes made between procedural error weighed against substantive justification, does not mitigate or ameliorate against the extraordinarily abrupt, undignified and unexplained summary process. 23 Consequently the applicant's complaint has been justified. The manner in which the applicant was dismissed was harsh, unreasonable and unjust. Regrettably the process for dismissal of the applicant was unnecessarily hasty and undignified. 24 In addition, the alleged substantive basis for the applicant's dismissal is also questionable. Although the Commission readily accepts the evidence regarding the deleterious financial impact of events such as the September 11 terrorist attacks and the collapse of Ansett Airlines and the Traveland company, there was no evidence of the actual financial imperative existing as at 29 or 30 May 2003 which would underpin the alleged substantive basis for dismissal. Rather, the evidence strongly suggested that the impetus for the applicant's dismissal may have been related to the applicant's expenses claimed in respect to the New Zealand tour. It would seem that underlying financial difficulties, although existent, did not represent the real and operative reason for dismissal, but simply provided the most convenient proposition rather than engage in dispute regarding the applicant's claimed expenses. 25 Although the applicant's dismissal may have readily presented as being unfair, it must be acknowledged that the employer appeared to recognise its errors fairly shortly after proceedings in this matter commenced. The employer's admissions and attempted restitution must be recognised, and in that regard although the primary finding in respect of the unfairness of the dismissal could not be disturbed, the credit that attaches to the employer's subsequent admissions and attempted restitution must operate to assist in the contemplation of any remedy. 26 The applicant has not sought reinstatement or re-employment but instead monetary compensation. Although the applicant attempted to obtain alternative employment following dismissal she had been unsuccessful with such pursuits for a considerable period of time. In the circumstances, reinstatement or re-employment would be impractical. Therefore the Commission is prepared to provide for monetary compensation as appropriate Relief for the applicant's unfair dismissal. The amount of compensation has been reduced as a result of the employer's genuine attempts to provide restitution for its acknowledged mistakes. CONCLUSIONS 27 In this instance the procedure applied to implement the applicant's dismissal was plainly harsh, and unreasonable. The applicant was summarily dismissed for alleged economic reasons. The process for the applicant's dismissal was unnecessarily hasty and undignified and the applicant was entitled to take offence at the process adopted by the employer. 28 The alleged substantive basis for the applicant's dismissal cannot be properly established. The economic reason offered for dismissal may have at best, only represented a small part of the true motivation for the dismissal. 29 The subsequent acknowledgement of error by the employer and attempted restitution has assisted the employer in respect of the remedy that should be provided in this instance. 30 The applicant has sought monetary compensation as remedy for her unfair dismissal. The Commission is prepared to provide for monetary compensation equating with approximately ten weeks of the applicant's pre-dismissal remuneration. The amount of compensation has been determined having regard for the applicant's attempts to find alternative employment and the remuneration received in alternative employment. In addition the quantum of compensation has been determined having cognisance of the attempts made by the employer to rectify its acknowledged mistakes. ORDERS In this matter, for the reasons outlined herein, I have determined that the dismissal of the applicant was harsh, unreasonable and unjust and I hereby make the following Orders: 1. The Commission Orders that the employer pay to the applicant an amount of compensation of $5,000.00. This amount is a gross figure and appropriate taxation treatment is a matter for the Parties. 2. The amount of compensation specified in Order 1 above is to be paid by the employer to the applicant within twenty eight days from the date of this Decision. oooOOOooo 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.