Karen Anne Lansdell and Greg Anderson [2008] NSWIRComm 1056

Industrial Relations Commission of New South Wales

CITATION: Karen Anne Lansdell and Greg Anderson [2008] NSWIRComm 1056

APPLICANT Karen Anne Lansdell PARTIES: RESPONDENT Greg Anderson

FILE NUMBER(S): 124 of 2008

CORAM: McLeay C

CATCHWORDS: Unfair dismissal - canteen worker - whether applicant was dismissed - two versions of termination conversation - credibility of witnesses - unfounded allegations - relationship broken down - dismissal found - dismissal harsh and unjust - reinstatement or re-employment impracticable - orders made for compensation

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 26 May 2008

DATE OF JUDGMENT: 19 June 2008

APPLICANT Mr J Darams of Counsel Ms M Maguire LEGAL REPRESENTATIVES: Inner City Legal Centre

RESPONDENT Mr D Phair Proctor Phair Lawyers

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: McLEAY C

19 June 2008

Matter No IRC 124 of 2008

Karen Anne Lansdell and Greg Anderson

Application by Karen Anne Lansdell re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2008] NSWIRComm 1056

1 This is an application by Karen Anne Lansdell who was dismissed from her position as a Canteen Manager/Canteen Worker by Greg Anderson on 25 January 2008. Ms Lansdell had been employed as a casual employee by Mr Anderson in various school canteens operated by him since January 2003. 2 Ms Lansdell claimed that she was dismissed by Mr Anderson by telephone on 25 January; Mr Anderson claimed that he offered Ms Lansdell work at a different school to the one where she had been working throughout 2007 and she refused. The case relies on the credibility of Ms Lansdell and Mr Anderson, as there were no other witnesses to the telephone conversation. 3 Throughout the proceedings, neither Ms Lansdell nor Mr Anderson gave reason to doubt the accuracy of their testimony. They each appeared to be sincere and reasonable in presenting their evidence before the Commission. However, the onus falls on the applicant to substantiate her case, that is, to prove that she was dismissed by the respondent. 4 Mr Anderson holds the contracts for operating school canteens at a number of schools including Rooty Hill High School, Chifley Senior College at Mount Druitt, Prairievale Public School, Ashcroft High School, Fairfield Heights Public School and Canley Heights Public School. Ms Lansdell has worked at each of these schools. 5 There was no written contract of employment. Ms Lansdell and Mr Anderson disagreed as to their recollections of whether Ms Lansdell approached Mr Anderson or whether he approached her initially in regard to her working for him. Nonetheless they both agreed that there was an interview at Chifley College where the employment was agreed. Mr Anderson said that he told Ms Lansdell she was employed on a casual basis with no guaranteed hours, that she could be moved from school to school according to need, that more experienced staff would be given priority over newer employees and that she would be paid the award wage. Ms Lansdell agreed that she knew all these conditions to be standard within the industry, and that work would only be available during school terms. Ms Lansdell had worked in the industry since 1999. 6 During 2006 and 2007, Ms Lansdell worked with Ms Jasna Mitrovic in the canteen at Canley Heights Public School. Ms Lansdell commenced in 2006 on the hourly rate of $16.82, which she understood to be the award rate at the time. From the week ending 13 February 2006, her rate of pay increased to $18.15 per hour. Ms Lansdell gave evidence that Mr Anderson had told her that she and Ms Mitrovic would share the manager's rate, splitting the difference between $16.82 and the amount he paid a previous employee of $19.50 per hour, arriving at the rate of $18.15. Mr Anderson said that he gave Ms Lansdell and Ms Mitrovic an increased, above award, rate in acknowledgement of their good work performance, their cooperation in working together and for "turning around" the canteen, that is, increasing its profitability. Ms Mitrovic confirmed that she had received the same pay increase at the same time as Ms Lansdell. 7 Mr Anderson and Ms Lansdell disagreed about whether Ms Lansdell had been appointed as manager or co-manager with Ms Mitrovic. He said that he and his wife were the only managers of the various canteens for which he held the contract. He agreed that Ms Lansdell was a good and experienced worker whom he wished to reward with a higher rate of pay. He further agreed that, when Ms Mitrovic was on leave during July-August 2007, he paid Ms Lansdell $19.50 per hour, because Ms Lansdell was working with an inexperienced employee and thus carried more stress in the job during that period. 8 Ms Mitrovic had not considered herself to be a manager, but a worker at the canteen at Canley Heights. She understood that she was paid an above-award rate because Mr Anderson considered her to be a good and experienced worker. 9 In November 2007, Ms Lansdell had submitted a tender for the contract to operate the canteen at Cabramatta Public School. Her tender was unsuccessful. Although she was disappointed, she continued her work for Mr Anderson. She did not mention to him that she had bid for the contract. She told Ms Mitrovic that she had done so. Ms Mitrovic did not mention it to Mr Anderson. Ms Lansdell said that if she had been successful she would have told Mr Anderson before the end of the school year. In fact, Mr Anderson was the successful bidder for the canteen at Cabramatta. He gave evidence that when he met the Deputy Principal at Cabramatta to discuss the operation of the canteen, he saw a list of finalists which included Ms Lansdell. He did not raise this with Ms Lansdell at the time. 10 Ms Mitrovic gave evidence that Ms Lansdell's disappointment at not getting the contract at Cabramatta school did not affect her work at Canley Heights. 11 On Friday 25 January 2008, just prior to the commencement of Term 1, Mr Anderson rang Ms Lansdell. Their evidence about that telephone conversation varies widely. 12 Ms Lansdell's version of the relevant part of the conversation is as follows: Anderson: Hi Karen how are you? Me: I am good. How are you? Anderson: I am good. Karen there's no more work for you to go back to on Wednesday. Me: Why? Anderson: There's no more work for you. Me: But there has to be a reason. Anderson: What were you going to do if you got the Cabramatta school? Me: What do you mean what was I going to do? Anderson: Were you going to tell me to shove it? Me: Shove what? Anderson: Your job. Me: No, I would have said that I was leaving Greg at the end of last year. Anderson: Bullshit. Anyway, there's no more work for you. Me: You know this is unfair dismissal don't you? Anderson: There is no more work for you. 13 Mr Anderson's version of the conversation, as set out in his statement of evidence, is as follows: I said: I am making changes this school year and I will be sending you to Chifley. She said: I don't want to. I said: I have been working this out all Christmas and I need you to go to Chifley. The hours will be the same. She said: No. I am not going. This is because I applied for the tender at Cabramatta isn't it? And Karen started to yell and scream at me. I said: I am not going to put up with you yelling at me and your aggressive attitude. She said: That is unfair dismissal. I said: No it's not. You have got a job at Chifley. You think about it. I will give you until Monday morning. 14 Mr Anderson said that Ms Lansdell did not return his call on the Monday, or fulfil her employment duties. Following his receipt of her unfair dismissal claim, he again offered her work at Chifley College and made offers of monetary settlement. 15 Further, Mr Anderson gave evidence that another employee put in a bid for a contract in opposition to Mr Anderson, and informed Mr Anderson of his bid. That employee, Mr Anderson said, continues to be employed by him. 16 In his written statement of evidence, Mr Anderson said that Ms Lansdell had told him of previous employment with her sister-in-law, including information designed to lessen the credibility of the applicant. Ms Lansdell not only denied the conversation reported by Mr Anderson, but also denied that she had ever worked for her sister-in-law except on a couple of occasions to help out with weekend functions. 17 Following the termination of her employment with Mr Anderson, Ms Lansdell said she had applied for a number of positions, worked at Franklins on a limited casual basis, and had successfully bid on a contract for a school canteen, commencing on 27 May, the day following the hearing of this matter. Submissions 18 Mr Darams for the applicant submitted that Ms Lansdell's evidence should be preferred wherever there were differences between hers and Mr Anderson's evidence. He said that Mr Anderson's explanation of the increased rate of pay in 2006 was implausible, as it occurred almost at the commencement of the school year when there had not been time to show any increase in profitability. He also submitted that the lack of paperwork backing up Mr Anderson's claim that he worked in January on staff movements between schools showed that he concocted evidence for his own purpose. Similarly, the comments about Ms Lansdell allegedly working for her sister-in-law were designed only for the purpose of casting aspersions on the applicant's character and had no basis in fact. 19 The relationship between Ms Lansdell and Mr Anderson had completely broken down, submitted Mr Darams. The trust and confidence necessary for an employer-employee relationship had been destroyed by Mr Anderson. This is why she could not accept his offer to work at Chifley College, which she said was made only after she filed her claim for unfair dismissal. 20 Mr Phair for the respondent submitted that the applicant had not been dismissed but had abandoned her employment after being told to start the new year at Chifley College. Her refusal to accept the employment offered on 25 January was compounded by her continued refusal when the offer was put to her in writing after she had claimed that her dismissal was unfair. She had been made a reasonable offer but proved that she only wanted money, because her plan had been to bid for another school canteen contract. 21 Mr Phair submitted that Ms Lansdell had not fulfilled the onus on her to prove that she had been dismissed. As a casual, she had known and accepted as a condition of employment that she could be moved between schools, and she should have accepted the offer to work at Chifley College. 22 As an unsuccessful bidder on a contract in 2007, and now as a successful bidder, it was clear that Ms Lansdell had no intention of staying in Mr Anderson's employ, submitted Mr Phair. 23 In response, Mr Darams submitted that there was no evidence that Ms Lansdell did not intend to remain employed by Mr Anderson. Her change in circumstances arose as a consequence of her dismissal. According to her evidence, Ms Lansdell had been told there was "no more work" for her. She had been replaced at Canley Heights and had to find an alternate source of income. Her refusal of the respondent's offers of settlement were for sound reasons. Consideration 24 The parties disagreed as to whether Ms Lansdell was employed as a manager, a co-manager or as an assistant. Ms Lansdell's status is not a relevant issue in the determination of these proceedings because it was not a contributing factor to the issue of dismissal. According to both versions of the conversation held between the partes on 25 January 2008, Ms Lansdell's status was not mentioned. 25 The rate of pay paid to Ms Lansdell was another issue of difference between the parties. While they agreed on the amount paid, they disagreed as to the reason. Ms Lansdell said she was paid a figure halfway between the assistant's and the manager's rates, because she shared the manager's role with Ms Mitrovic. Indeed, when Ms Mitrovic was on holidays, Ms Lansdell received the full manager's rate. Ms Mitrovic's evidence did not assist the Commission on this point, as she said she did not know the reason for her pay rate. Mr Anderson, on the other hand, said it was an above award rate in recognition of good performance, and the higher rate during Ms Mitrovic's absence was in recognition of increased responsibility. The rate of $19.50 was one which, he said, "I picked off the top of my head". 26 In considering the various reasons given for establishing the rate of pay, I am satisfied that Ms Lansdell's logical approach is more likely to represent the truth of the matter. Mr Anderson gave evidence, both written and oral, that he paid the award rate to all his staff. It would be entirely contradictory to his own principled stance to simply select a new rate from nowhere. Rather, he paid Ms Lansdell and Ms Mitrovic exactly half the increase he had previously established, and paid Ms Lansdell the full rate when Ms Mitrovic was on leave. Whether or not they were considered to be managers, co-managers or not is incidental to the fact that they shared the increase which Mr Anderson paid to other key employees. 27 The reason given by Mr Anderson for paying Ms Lansdell and Ms Mitrovic an 'above award ' payment (as he called it) was that they had turned around the profitability of the canteen. As Mr Darams submitted, this statement is implausible, as they would have had only one week of trading prior to the decision to increase their rate of pay taking effect. 28 It follows that it must be accepted that Ms Lansdell was speaking truthfully about how her rate of pay was derived and Mr Anderson was not. 29 As to the conversation of 25 January, a careful analysis of the separate versions of the alleged conversation and its context is necessary. 30 Firstly, it appears to me that there was no reason for Ms Lansdell to reject an offer of work at Chifley College canteen, if such an offer was made. Neither party suggested that there was any discussion of Mr Lansdell's role or rate of pay at Chifley College canteen. Ms Lansdell's prior history shows that she worked at that school canteen and any other where Mr Anderson required her to attend. Her one bid to tender had been unsuccessful and she had not sought employment elsewhere. It was too late in the year to expect her to be able to find other comparable employment. 31 Secondly, the supposed reference to her own bid for the Cabramatta school canteen and yelling and screaming by Ms Lansdell are both denied by her. I find it difficult to comprehend that Ms Lansdell would suddenly start yelling and screaming if she had simply been asked to change school locations. She had worked at many schools over the years of her employment with Mr Anderson since February 2003, as well as during her previous employment in canteens since 1999, and she understood that movement between schools was a standard requirement in the industry. 32 Thirdly, Mr Anderson claimed he spent 'all Christmas' working on his roster to commence the school year in 2008. There was no evidence that he did so - and that hardly matters. What matters is that he could bring no evidence to back his claim that he had rostered Ms Lansdell to work at Chifley College. 33 Fourthly, the conversation as reported by Ms Lansdell has nothing in it to cause concern about its credibility. 34 Again, I must prefer the evidence of Ms Lansdell over that of the respondent so far as it relates to the telephone conversation of 25 January. 35 Ms Lansdell believed that the reason she was dismissed was because she submitted a bid to tender for the Cabramatta school canteen. Mr Anderson's response was that another of his employees also unsuccessfully submitted a bid to operate a school canteen, and that employee is still working for him. One difference between the two is that the other employee told Mr Anderson that he had bid while Ms Lansdell did not. Mr Anderson found out from the school in a way that should not have been allowed to occur. In normal circumstances, Mr Anderson would not have known about Ms Lansdell's unsuccessful bid and the employment relationship would have continued normally, in all likelihood. 36 There was no argument made that Ms Lansdell had acted disloyally to her employer. It may been seen like any employee who applies unsuccessfully for a different position and continues his/her employment. Ms Lansdell did not know that she was competing with her employer for the tender, as the Cabramatta school canteen was not one operated by Mr Anderson at the time that she submitted her bid. 37 Mr Phair submitted that Ms Lansdell's successful bid for tender of another school canteen proved that she was not intending to stay in employment with Mr Anderson. Unfortunately, the question of her intention about ongoing employment was not put to Ms Lansdell in cross-examination, so the assertion made by Mr Phair is unfounded. 38 In fact, Ms Mitrovic gave evidence that Ms Lansdell's disappointment at not being awarded the tender for the Cabramatta school canteen did not effect the quality of her work. 39 Mr Anderson gave evidence that he knew about Ms Lansdell's unsuccessful bid by seeing her name on a list in the office at the school. It is disappointing that the person responsible did not secure this confidential material appropriately. Nonetheless, it was appropriate for Mr Anderson to be concerned, although he denied seeing it as a betrayal of trust. It was available to him to raise the matter with Ms Lansdell and discuss her intentions. As it was, she was given no opportunity to explain or defend her behaviour, or to work out an agreement as to the future. At least, if he had dismissed her in December 2007 when he first knew of her bid, she may have had an opportunity to find other employment from the commencement of term 1 in 2008. 40 In the week following the telephone conversation between Ms Lansdell and Mr Anderson, Ms Lansdell said that she commenced searching for work. She also rejected Mr Anderson's offer of work at Chifley College canteen, sent through his solicitor on 27 February, because she believed the relationship between them had broken down. I accept that this was so. 41 Mr Anderson introduced testimony about a prior employment relationship between Ms Lansdell and her sister-in-law. His allegations were unfounded and denied by the applicant. While it is understood that issues of credibility are important, introducing unfounded allegations does not advance Mr Anderson's credit. 42 Ms Lansdell gained some casual employment after her dismissal on 25 January, earning about $2000. She successfully bid for tender to operate a school canteen, which she was to commence on 27 May 2008. Precise information about the applicant's remuneration received during the six months prior to her dismissal, which included the long school vacation, was not provided. Because of the school vacations when no work was available, it is not appropriate to take a weekly average. Rather, the comparison with the total remuneration earned over the six month prior to dismissal is relevant. It is reasonable to presume the amount earned in the second semester would have been similar to that earned during the first. Pay slips tendered in evidence showed that between 25 January to 27 May 2007 Ms Lansdell earned $6797, a difference of $4757 between that and her 2008 earnings to the date of the hearing. Conclusion 43 A number of issues allowing the credibility of Ms Lansdell and Mr Anderson to be tested were examined, and in each case I was led to a determination that fell in Ms Lansdell's favour. 44 I accept that Ms Lansdell was paid a rate of pay which reflected the task for which she was employed, and was not a figure arbitrarily chosen by Mr Anderson as an above award rate in reward for good performance and increasing the profitability of a canteen for which she had been responsible for one week. 45 I further accept that no offer of work at Chifley College canteen was made during the telephone conversation of 25 January 2008. There was no reason for Ms Lansdell to reject such an offer, if it had been made. 46 It follows that I must prefer the version of the conversation provided in evidence by the applicant. I find that the applicant was dismissed by the respondent during this conversation. 47 I also accept that the reason for the dismissal was that Ms Lansdell bid for a tender to operate a school canteen in opposition to her employer. However, she was not aware at the time that he was bidding for the canteen, and she continued to work loyally and well for him in the following period. There was no evidence that she intended to leave his employ. The fact that she has now bid successfully to operate a canteen may well reflect the changed circumstances she found herself in after the dismissal. 48 This reason does not justify dismissal. 49 Ms Lansdell did not accept the offer of employment made to her on 27 February. I find that the relationship had broken down at that stage and remains so. She was not given an opportunity to make out a defence or give an explanation for her behaviour prior to her dismissal. 50 In all, I find that the respondent dismissed the applicant for a reason that was not sound. Therefore, the dismissal was harsh and unjust. 51 I find that reinstatement or re-employment are impracticable. 52 I accept that Ms Lansdell made reasonable attempts to find alternative employment following her dismissal, and in making the following orders I take into account the amount earned by Ms Lansdell since her dismissal. ORDERS