Industrial Relations Commission of New South Wales CITATION: Armstrong &Notaras [2005] NSWIRComm 1073 APPLICANT: Ms. K.L. Armstrong PARTIES: RESPONDENT: Ms. I. Notaras FILE NUMBER(S): 4893 of 2004 CORAM: Ritchie C Claim for unfair dismissal Question as to whether a termination took place Application out of time Applicant sought from respondent meeting to discuss incident Extended delay in meeting taking place Applicant started another job due to financial pressures. CATCHWORDS: Applicant stated that actions of the respondent at meeting resulted in termination. Respondent stated that no termination took place. Commission found that termination by the respondent did take place. Out of time application by one day accepted by Commission Based on evidence termination found to be harsh, unreasonable and unjust Monetary compensation awarded. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 04/05/2005 DATE OF JUDGMENT: 05/13/2005 APPLICANT: Solicitors: McNamara James &O'Connor LEGAL REPRESENTATIVES: Mr.P. James RESPONDENT: Respondent appeared in person DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C 13 May 2005 Matter No IRC 4893 of 2004 IN THE MATTER: Kelly Learne Armstrong and Saraton Theatre Application by Kelly Learne Armstrong re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1073 1 Ms. Kelly Learne Armstrong (the applicant ) filed a claim for unfair dismissal on 12 August 2004 after claiming that she had been terminated on 21 July 2004 by her employer Ms. Irene Notaras (the respondent) from the Saraton Theatre located at Grafton. In her application the applicant sought maximum compensation of twenty six months ($13,448 ). 2 The applicant had been employed by the respondent since December 1995. She had commenced employment on a casual basis in the candy bar. Over time the applicant was taught to be a projectionist and at the end of her employment carried out the role of a projectionist as well as other duties in the theatre such as fixing toilets, installing shelves cleaning and serving the customers. 3 Whilst the applicant stated in her application that she was a part time employee, this was varied during proceedings to that of a casual employee. 4 The application first came on for Conciliation and Direction on 16 September 2004 with a further conciliation being held on 21 October 2004. A timetable for the parties to file and serve evidentiary material was provided and a further mention was held on 21 December 2004. That timetable was varied and a hearing date of 2 March 2005 was set. This date was varied to 1 March at the request of the applicant but this had to be cancelled when the respondent provided medical evidence that she was unfit to travel and a new date of 5 April 2005 was set with the hearing taking place in Coffs Harbour. The respondent did not file an Employers Reply. 5 The applicant was represented by Mr. P. James, solicitor and the respondent represented herself. Case for the applicant. 6 The applicant presented as a 43 year old woman who at the time of hearing was within days of having her first child. She was the only person who gave evidence. 7 It was the applicant's view that she was employed under the Entertainment & Broadcasting Industry (State) Award and whilst paid as a Cinema Worker Level 1 believed she should have been classified as a Cinema Worker Level 3. 8 It was the responsibility of the applicant to assemble a newly delivered film, called "making it up " and disassemble it, called "breaking it down". Depending on the condition of the film and the number of reels involved it could take between 2 and 3 hours to make up a movie. 9 It was her evidence that during her employment she had not received any reprimand or given a warning concerning her performance. 10 Her actual last day of employment was 9 June 2004. She stated that she had been suffering from bronchitis for the previous two months and was suffering badly on that day. On that day she had to make up the new Harry Potter film for showing the next day. It took some time to complete that job as 6 of the 8 reels had to be rewound before the film was ready for viewing. Once completed the film was left on a platter ready for showing the following day. 11 The applicant, whilst rostered to work, did not attend work on 10 June 2004 because she was too ill. She stated that she rang the respondent in Sydney two to three hours prior to commencing work to advise that she was sick and therefore the respondent would have ample opportunity to find a replacement if needed. 12 On the evening of 10 June 2005 a Ms. Lyn Casamatis, a fellow employee left a message on the applicant's answering service saying: Kelly, it's Lyn. Don't bother coming tomorrow either as you are not rostered on. Ok bye. 13 The applicant contacted the Cinema on 12 June and was told by Stephanie Knight that during the running of the Harry Potter movie on the evening of 10 June, one of the reels had been joined in reverse and the screening was interrupted for about one hour. She understood that the movie did continue once the error was rectified. Whilst she accepted that some patrons sought a refund not everyone did. This error had never occurred before and the applicant was unaware of how she had come to do it. 14 The applicant said that she called the respondent in Sydney on Saturday 12 June 2005 and discussion took place about what had happened on the night of 10 June. 15 During the telephone conversation the applicant asked as to "what was going to happen now", and was told by the respondent that she "would have to wait until I come up ",which she said would be on Monday. The respondent did not come up to Grafton on Monday. The applicant denied either her or the respondent making any comment about " not sabotaging the place." The applicant did recall that the respondent did state that she "still sound very ill", but never said" Why don't you go and get yourself better and let this thing blow over." 16 On or about Tuesday 15 June, the applicant again phoned the respondent in Sydney and duplicated the phone conversation of the previous Saturday as to what had happened on 10 June. The applicant sought answers as to where she stood with respect to future employment as she had no money coming in. Did she look for another job or go on the dole ? She sought a date as to when the respondent would be coming up to Grafton but the respondent was unsure as to when. 17 On or about 18 June the applicant again called the respondent with the same conversation taking place and again the respondent was unsure as to when she would be next in Grafton. 18 The applicant stated that in her telephone conversations with the respondent she sought to know where she stood, as she had bills coming in and she needed the money. The respondent always replied that it would be dealt with when she next came up to Grafton. 19 On 19 July the applicant received a phone call from the respondent inviting her to a meeting that night. Whilst the applicant attended for the meeting it did not take place because of time constraints of the respondent so another meeting was organised for 21 July at 7.00pm. 20 At the meeting on 21 July 2004 the incident of 10 June was discussed with the applicant unable to shed any light as to how it did occur. The applicant stated that she had been very sick with bronchitis which was not an excuse, but may have been a contributing factor. The respondent asked for and was given the applicant's keys back. She asked the respondent: "Well is that it Irene ? One mistake in eight and one half years and I am the world's worst. " 21 The applicant stated that the respondent replied that "none of the others want you working here ." Another employee walked in, Stephanie Knight and when asked by the applicant whether she wanted the applicant to work with her, she denied she ever told the respondent that, to which the respondent advised that "I meant the juniors." On leaving the respondent asked the applicant to give her a ring once in a while and let her know how she was going. The applicant advised that she would not be ringing back. No comment with respect to the future offer of shifts was made. 22 The applicant admitted that when asked by the respondent during the meeting on 21 July whether she was working at the cinema at Yamba she said "no", when in fact she had commenced on 1 July 2005. She believed that if she had told the truth there would have been no prospect of getting work back at the Saraton Theatre in Grafton. She believed she still would have been available for casual shifts at the Saraton. During the conversation the applicant told the respondent that she " may get an interview at K-Mart." At no time did she tell the respondent that she was getting a job with K-Mart. 23 Whilst at no time did the respondent tell the applicant that she was terminated, the applicant concluded that she had been dismissed because of the taking back of the keys, the conversation of the attitude of the other employees and the invitation to "give us a ring once a while and let us know how you are going." 24 The applicant stated that she had commenced a traineeship on 1 July 2004 with the Yamba Cinema as she was not in a financial position to wait until the respondent indicated her position with respect to her future employment. She denied ever working for the Yamba Cinema prior to that date. It was the applicant's view that she could have worked at both cinemas if given the opportunity. 25 During her last 26 weeks of employment the applicant stated she received an average of $504.75 per week making a total remuneration of $13123.20. At the Yamba Cinema she took home $349.00 per week after grossing $406 per week. Fuel in travelling to Yamba per week was $75 per week, where at Grafton it was $15 per week. Case for the respondent. 26 The respondent was the only person who gave evidence. Witness statements from Ms. Lyn Cassimatis and Ms. Stephanie Knight had been filed but were not present in Court on the day of the hearing and Mr. James objected to their witness statements being accepted into evidence when they were not available for cross examination. I upheld his objection. 27 The respondent stated that the cinema is a small single screen operation that employees 5 employees. All are employed and paid as casuals. The shifts of the employees vary depending on the availability of movies, their length and the time of the year. 28 It was the evidence of the respondent that the applicant had first pick of the rosters and therefore chose the shifts that suited her. 29 On 10 June 2004 the applicant was rostered to work but ten minutes before commencement of her shift she phoned the respondent in Sydney to advise that she was too sick to go to work. The respondent organised a replacement projectionist. During the screening of the Harry Potter movie on the evening of 10 June, the film began to appear upside down and in reverse. The movie had to be stopped and time spent in rectifying the error. The respondent stated that all tickets were refunded. Customers were in an uproar over the malfunction. The respondent was phoned that night by one of the employees of the malfunction. 30 The respondent stated that she did not receive a phone call from the applicant until a few days after 10 June around 14, 15 June. 31 The applicant did not appear for work on either 11 or 12 June. The respondent called the Cinema on or about 14 June and was told by Ms. Knight that the applicant had called the Cinema that night and Ms. Knight and the applicant had discussed what had happened on 10 June. 32 On or about 16 June 2004 the applicant called the respondent. The respondent was aware that the applicant had not worked since 9 June and was also aware that she had been suffering from a virus for over two months. The applicant could give no reason for how the malfunctioning of the film had occurred. The applicant did say to her : "I did not sabotage the place." The respondent advised her that she did still sound very ill and to get her self better, let this thing blow over and she would deal with it when she next came up to Grafton. No date was set for her next trip. The respondent accepted that it would have been important to the applicant for her to know when she was going to get to Grafton. The respondent made no comment about the second phone call that the applicant stated that she had on 18 June but in cross examination she stated in response to this question: Q. If the reason that Kelly was off roster was because of the circumstances of 10 June there would be a good reason why you have to come to Grafton to talk about it, wouldn't there ? A. I had to - it's very hard to describe the situation. You don't know until you've been in it. I wanted to see how the staff were reacting ; whether it was time-the time was right for her to come back but in the meantime I was aware that she was working in Yamba and I didn't see any great urgency. Q. Did you ask her during the second telephone conversation whether she was working at Yamba ? A. Yamba was regularly mentioned. 33 On 20 July 2004 the respondent contacted the applicant and a meeting was arranged for the next day at 7.30pm. What occurred on 10 June was discussed with the applicant not giving any solution to the error. The respondent asked the applicant whether she was working at the Yamba Cinema and was told that she wasn't. The applicant did say that she was getting a job at K-Mart. After that comment the respondent replied: " in that case you can give me the keys." The respondent also told her : " to call us sometime " as work was available. 34 Attached to the respondent's witness statement was a letter from the Yamba Cinema which confirmed that the applicant had commenced working with that cinema since 1 July 2004 under a Certificate III Frontline Management Traineeship. 35 It was the respondent's submission that at no stage did she terminate the applicant and therefore the Commission lacked jurisdiction to hear the matter. She also stated that the unfair application itself was out of time. The respondent in her final submission withdrew her out of time objection. 36 It was also the respondent's submission that the applicant was correctly classified and paid as a Grade 1. Considerations and Decision. 37 It is my view that the first issue for consideration and determination has to be, whether a termination of employment by the respondent of the applicant took place ? It is clear that I have to find that a termination at the instigation of the respondent took place to give the Commission jurisdiction to determine the matter. 38 It was accepted by both parties that the applicant was employed and paid as a casual employee. There was disagreement between the parties as to the correct classification of the applicant and therefore a disagreement with respect to the correct rate of pay. I have not sought to determine this particular issue as the applicant had sought compensation as the remedy and the provisions of the Industrial Relations Act 1996 limit the amount of money that can be awarded to a maximum sum calculated by reference to the payment " not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed." From the documents that became evidence in this matter the applicant worked generating a pay each week from at least October 2003 up until the 9 June 2004 with total hours ranging from 51:30 hours to 19:45 hours per week. It is therefore clear that the applicant was employed on a regular and systematic basis. The applicant's last actual day of work was 9 June 2004. The incident with respect to the malfunctioning of the movie occurred on 10 June 2004. The applicant received a phone call on her message bank at her home on the evening of 10 June by a fellow employee stating not to come in the following day. The applicant stated that she contacted the respondent on 12 June to ask what was going on and was told to wait until she came up (to Grafton). The respondent stated that the first call she received from the applicant was on or about 16 June 2004 when the applicant wanted to come back to work and was told to " go and get yourself better and let this blow over, then we will deal with it when I come up". The applicant said she called the respondent again on 18 June 2004 wanting to know whether to look for another job or go on the dole and was told she would have to wait until the respondent came up to Grafton. The applicant then sought a date when the respondent would be arriving in Grafton but none was forthcoming. One month later the respondent came to Grafton and a meeting on 21 July 2004 took place between the applicant and the respondent. The applicant had not been rostered to work on any shifts since 9 June 2004. Some six weeks had passed. 39 What occurred on 10 June 2004 was discussed at that meeting. The respondent was asked the following question in cross-examination: Q. So on 21 July 2004 when you asked for the keys back you were determined that you would never have Kelly working at your cinema again, weren't you ? A. No, I only took them back for control because I could see that if she's making these sort of mistakes she would have been supervised and checked and -to make sure that we weren't going to have to make it again. 40 The respondent went on to state that there had been regular breakdowns . No evidence other than this comment was brought before the Commission and the applicant had not been cross examined on this matter. 41 The respondent did not consider it urgent to come up to Grafton because the applicant had been working at the Yamba Cinema. Q. But you never knew she was working or wasn't working at the Yamba Cinema till you had the conversation on 21 July ? A. No I knew prior. I knew she was working even the Easter before. 42 It is my finding based on the evidence that the respondent terminated the applicant on 21 July. In my view the actions and comments of the respondent equated to a termination of the applicant. The reason given by the respondent for taking back the keys was that she would avoid future mistakes by the applicant is neither logical nor understandable. Who would be checking the applicant for mistakes ? The applicant was the most experienced projectionist and as I understood the evidence it was the normal practise to have only one projectionist on each shift. There was no evidence before the Commission that the malfunction that had occurred on 10 June had ever happened before. The applicant in her evidence was quite clear that by returning her keys at the request of the respondent she knew she would not be offered any further shifts with the respondent. Another issue raised by the respondent during that conversation concerned the negative attitude of other staff towards the applicant. When tested by the applicant by asking directly a fellow employee Stephanie Knight who walked into the conversation , it was denied by Ms. Knight. The mention of K-Mart was one of a possibility of work as opposed to an offer of work. 43 Another preliminary issue that must be determined is that the application was filed out of time. In that I have found that the applicant was terminated on 21 July 2004, she did not file her unfair dismissal claim until 12 August 2004 which was one day out of time. Section 85(3) of the Industrial Relations Act 1996 provides the Commission with the discretionary power to accept an out of time claim. Taking into consideration the brief period involved and the hardship that would be experienced by the applicant if the application was not allowed to be determined, it is my intention to allow the application to be accepted. 44 I now turn to determine whether the termination by the respondent of the applicant was either harsh, unreasonable or unjust. 45 What occurred on the night of 10 June 2004 when the film malfunctioned was clearly a calamity as the cinema was full of customers eager to watch the latest Harry Potter film. That it took quite a period of time to rectify the problem would have resulted in great stress being placed on the staff on duty. It is understandable that those staff would have not been pleased with the applicant who had the responsibility to set the movie up. The applicant accepted responsibility for the error but did not know how such an error could have occurred. The applicant did not work again for the respondent. Her work was carried out by other casual projectionists. The respondent stated that she did not want the applicant to recommence work again until she had the opportunity to speak with her when next in Grafton. That opportunity took place nearly six weeks later. The respondent stated that she did not see any urgency in going to Grafton because the applicant was working at the Yamba Cinema and she had a lot of work to with the end of the financial year. The respondent stated that even having to attend the hearing in Coffs Harbour was preventing her from doing other work in Sydney. Also the applicant was sick and she could regain her health. 46 The applicant had been a long serving employee of eight and one half years. No written warnings of the applicant had been placed before the Commission. The respondent had read out during her final submission some alleged counsellings. These were not shown to the applicant during her cross examination and therefore she had no opportunity to respond to them. I therefore place little weight on them in my deliberations. 47 It is my finding that it was unreasonable on the applicant to have to wait for nearly six weeks for this important meeting to take place. As expressed above, the respondent for various reasons did not see any urgency in the issue. The respondent's own evidence (attachment to Ex 1) clearly shows that the applicant did not commence work at the Yamba Cinema until 1 July 2004 ,yet she gave evidence that on the phone call made by the applicant to her on 18 June Yamba Cinema was mentioned. She also stated that the applicant had been working at the Yamba Cinema prior to 1 July 2004. It states quite clearly in the letter signed by Debbie McCredie (Owner/Manager) the following: "The previous owner's wage book shows NO entries for Ms. Armstrong as she didn't commence work until 1st July, 2004." 48 The applicant had made it quite clear in her phone calls to the respondent in June that she wanted to know what was going to happen to her re her employment and that she had bills to pay. I accept the evidence of the applicant who was clear that she had made 3 calls to the respondent in June 2004 trying to find out when the respondent would come up to Grafton. 49 In my view the respondent "hung the applicant out to dry." At no time did the applicant supply the respondent with a medical certificate seeking time off work. She had bills to pay and wanted the respondent to come up to Grafton as soon as possible so she could know her future. A reasonable view to take. I accept the submission of the applicant in that her action of seeking alternative employment was an act of necessity because she was not being offered work by the respondent and not being given any indication as to when she will know what will be her future. The applicant had to live and eat and pay bills. The applicant had been placed in an impossible position because of the inaction of the respondent. 50 The issue raised by the respondent that fellow employees did not want the applicant working there was altered to " I meant the juniors". In my view a very poor contributing reason to deprive a long term employee of her job. 51 It is my view that as the respondent saw that what occurred on 10 June to be a disaster, she should have travelled to Grafton during the following week to talk to all employees who worked on that night. If she believed that at the end of her investigation the applicant should have received a written counselling, then that should have been issued. The applicant should then have been returned to the shift roster. The non action of the respondent resulted in the applicant having to seek alternative employment. 52 It is my finding that the applicant's termination was harsh, unjust and unreasonable. 53 The applicant sought by way of remedy the awarding of compensation. It is my finding that the applicant is entitled to an order for compensation. The applicant had been an employee for eight and one half years ,in my view a considerable period. Prior to 10 June 2004, nothing had occurred that would prevent the applicant from concluding that she had a secure job for the future. The applicant only worked for the Yamba Cinema from 1 July 2004 until 31 December 2004. She gave evidence that she had to stop working at the Yamba Cinema due to complications with her pregnancy. The applicant was working six to eight hour shifts with an hours journey each way. Her duties at the Yamba Cinema included a degree of heavy lifting with respect to stock replacement in the Confectionary shop. This degree of heavy lifting and long car travel did not take place when the applicant worked at the Saraton Theatre at Grafton. At the Saraton Theatre she did not have to lift heavy stock and travel from home was only ten minutes. It was the applicant's intention that if she had still been working at the Saraton Theatre she would have worked up until the end of February 2005. I note that the applicant would not have been entitled to take maternity leave with the Yamba Cinema because she had not been there for the minimum required period of twelve months, unlike her position at the Saraton Theatre if she had not been terminated. 54 Taking into consideration section 89(6) of the Industrial Relations Act 1996 and all the facts of this case including the applicant's subsequent employment in Yamba, I believe an award of $10,000 is appropriate. ORDER 1. That Irene Notaras shall pay the sum of $10,000 to Ms.Kelly Learne Armstrong within 28 days. 2. That this order shall take effect on and from Friday, 13 May 2005. D. W. RITCHIE 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.