Industrial Relations Commission of New South Wales CITATION: Abbott & Gatland [2004] NSWIRComm 1111 APPLICANT PARTIES: Margaret Abbott RESPONDENT Drew Gatland FILE NUMBER: IRC 4127 of 2004 CORAM: Ritchie C CATCHWORDS: unfair dismissal - termination of employment - no reason given at termination - absence of procedural fairness - dismissal held as harsh ,unreasonable ,unjust - compensation ordered. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 10/21/2004 DECISION DATE: 11/11/2004 APPLICANT Applicant appeared in person REPRESENTATIVES: RESPONDENT Mr. S. Cutting DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE, C 11 November 2004 Matter No IRC 4127 of 2004 Margaret Abbott & Drew Gatland Application by Margaret Abbott re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 1111 Background. 1 Mrs. Margaret Abbott (the applicant ) commenced employment for Mr. Drew Gatland (the respondent) on 28 April 2004 and was terminated on 29 June 2004. 2 The applicant filed an application for relief in relation to her dismissal on 15 July 2004 and the matter came on for conciliation and directions on 22 July 2004 in Coffs Harbour. In her application the applicant sought compensation as the relief sought. She sought four months wages. 3 At the conciliation , the applicant appeared for herself and Mr. S. Cutting (Cutting) appeared for the respondent. As conciliation proved unsuccessful , I set down a timetable for the filing and serving of evidentiary material. 4 Whilst the applicant filed and served a statement the respondent chose not to file anything. 5 A mention was held on 16 September 2004 and a hearing date of 21 October 2004 was set. 6 At the hearing the appearances remained the same. I was advised on the day of the hearing by Cutting that he confirmed the employer of the applicant was Drew Gatland and not New Millennium Business Solutions . 7 I raised that question for on file was correspondence from Cutting dated Tuesday, July 20 ,2004 on New Millennium Business Solutions letter head requesting a relisting of the Conciliation and Directions listed for 22 July 2004. Case for the applicant. 8 At her employment interview the applicant stated that it lasted no more than two minutes. She was told she would be paid at the rate of $13.66 per hour. She rang back the following day and was told she had the job. 9 She commenced work and carried out training for a few days at the Grafton store which was Head Office. 10 The applicant then worked at the Yamba store trading under the name of " Text Express " in a full time sales position selling mobile phones and accessories to the general public. The retail outlet was under a Telstra dealership. 11 The manager of the Yamba store resigned after a few days of the applicant arriving and a new manager (Nicole Newcombe) was sent from the Grafton store. 12 When the applicant received her payslip she noted that the rate of pay was $13.00 per hour. After receiving a number of payslips with the incorrect amount she contacted Cutting and the back pay was finally made. 13 When the applicant contacted Cutting in response to customer queries she was told by Cutting to " lie or make something up". 14 The applicant spent a couple of days at the Grafton store for telemarketing training and then returned to the Yamba store . The day she returned to Yamba she became the manager and the incumbent went back to the Grafton store. 15 The applicant stated that she worked Monday to Saturday but received no overtime payments. 16 Because of the non payment of the overtime , the applicant rang Wage Line on three separate occasions to seek information on what she should be receiving before approaching Cutting. She stated that she had rung on that number of occasions so that she would be sure of her facts. 17 On 29 June 2004 the applicant rang Cutting and inquired about the non payment of overtime and told him that she had rung Wage Line seeking information. A discussion developed between the two , with the applicant just seeking to be paid correctly . Cutting responded that a recent overpayment of four hours in her wages had occurred and that he would take that back. The applicant replied that this would be fine as long as she was paid the back payment from day one. Cutting hung up on the applicant. 18 A couple of hours later Cutting appeared at the Yamba store. He threatened the applicant saying : " You have a mortgage to pay don't you ?" and "Yamba is a small town " He then said: " Your hours will be cut to 38 then there will be no overtime. " 19 He then said to leave if the applicant did not like the pay and that Wage Line was lying to her. 20 The applicant stated that all she sought was to be paid correctly and that she would not resign. 21 Cutting then terminated the applicant. The applicant asked for a reason why she had been terminated and if he would be putting in writing a termination letter. He refused and told the applicant to go . The applicant then left the store. 22 During the very brief cross examination the applicant was asked why it would be impractical for her to work for the respondent. The applicant responded that she did not wish to work for the respondent again because of what she had experienced during her brief employment . 23 During the conciliation on 22 July 2004 I had asked Cutting the reason why the applicant had been terminated and was told poor performance. I asked the applicant was any reason given to her on 29 June by Cutting for her dismissal. She was quite clear that no reason had been given to her on that day for her dismissal. 24 It was her view that she had been terminated because of her inquiries to Wage Line and her requirement to be paid overtime that was due to her. 25 Post her termination the applicant stated that she sought employment but was not successful until 18 September 2004 when she obtained full time employment. 26 The applicant sought maximum compensation. Case for the respondent. 27 The respondent chose not to file an Employers Reply to Application for Relief in Relation to Unfair Dismissal or any evidentiary material nor produce any documentation on the hearing date and chose not to make any final submissions. Considerations and Decision. 28 In arriving at a decision in this matter I can only consider the evidence that was placed before the Commission on the day of hearing. 29 I therefore proceed to consider the case of the applicant .The applicant only worked for the respondent for a short period of time . During that short period of time she submitted that she had problems with being paid correctly and was only ever subjected to criticism from Cutting and the respondent concerning her work performance, when she raised the pay problems. 30 As a consequence of the very limited questioning she was subjected to in cross examination , it was left to myself to ask a number of questions in order for the Commission to be made fully aware of her employment history and what exactly occurred on 29 June 2004 when she was terminated. 31 After close examination of the witness and her evidence and the complete lack of any contrary evidence I find that the applicant was not provided with any reason for her termination. 32 Again for similar reasons I find that the reason for termination was not because of any poor work performance but as a consequence of the applicant seeking to be paid correctly. The respondent failed to provide any evidence to support the notion that the applicant had received any warning of unsatisfactory performance prior to her termination. 33 It is my finding that the termination of the applicant by Cutting on 29 June 2004 lacked any procedural fairness. 34 It is my finding that the applicant was terminated because she sought to be paid in a correct manner. 35 That is something that all employees have a fundamental right to be afforded. 36 The actions of Cutting on that day to terminate the applicant amounted to a termination that I find was harsh , unreasonable and unjust. In my view he acted in an intimidating and bullying fashion towards the applicant. 37 It is hoped that the respondent Mr. Drew Gatland takes appropriate action that results in such a manifestly unfair termination never being repeated. 38 In considering what is available to the Commission under Section 89 of the Industrial Relations Act 1996 I do not believe it would be practical for the applicant to be reinstated or re-employed to her former position. The applicant did not seek either of those alternatives and after reviewing the evidence I understand and accept her position. 39 Expressed in her Application For Relief in Relation to Unfair Dismissal , the applicant states that she was not paid on termination ,wages of $369.75 and holiday pay of $545.54. If the applicant believes that such monies and any other amounts are owing from her employment , then enquiries should be commenced at the local Office of Industrial Relations, Department of Commerce. 40 In her original application at question 23 , the applicant stated that her normal gross pay every week was $717.15 for 50 hours. During the hearing of the matter no evidence was provided by the respondent that refuted that information. 41 After considering all the evidence and the findings I have made, I make the following orders: ORDER 1. That the Commission Orders that the respondent Drew Gatland pay to the applicant Margaret Abbott an amount of compensation of five thousand five hundred dollars ( $5,500). 2. The amount of compensation specified in Order 1 above is to be paid by the respondent Drew Gatland to the applicant Margaret Abbott within twenty one days from the date of this Decision. D. 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