Industrial Relations Commission of New South Wales CITATION: Raguse v Mivax Pty Ltd t.as Ballina Beach Resort [2006] NSWIRComm 1045 APPLICANT: PARTIES: Ms. Kimberley Raguse RESPONDENT: Mivax Pty Ltd t/as Ballina Beach Resort FILE NUMBER(S): 5788 of 2005 CORAM: Ritchie C Claim for unfair dismissal by long term casual Applicant claimed that as a consequence of a phone call by her supervisor she was terminated. Applicant stated that she had been taken off the roster indefinitely. Respondent denied terminating the applicant and denied using the word indefinitely. The applicant had been advised that she was not on next week's roster at the moment. Onus on applicant to prove that a termination had taken place. CATCHWORDS: Commission determined that applicant had not proven that a termination at the initiative of the respondent had taken place. Respondent had sought during conciliation to offer shifts to applicant but were not accepted by the applicant. Application dismissed. Strong recommendation made that respondent pay applicant a sum of money equal to the value of her pro rata Long Service Leave. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Jacqueline Sally McNicol and Westco Jeans Pty Ltd [2004] NSW IRComm111 HEARING DATES: 21/02/06 DATE OF JUDGMENT: 03/17/2006 Applicant represented herself LEGAL REPRESENTATIVES: Respondent was represented by Mr. Michael Hulbert DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 17 March 2006 Matter No IRC 5788 of 2005 IN THE MATTER OF: Kim Lenorah Raguse and Mivax Pty Ltd t/as Ballina Beach Resort. Application by Kim Lenorah Raguse re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [1996] NSWIRComm 1045 1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 (the Act). The claim was filed on 11 November 2005, by Ms. Kim Lenorah Raguse (the applicant) and named the respondent as Mivax Pty Ltd t/as Ballina Beach Resort (the respondent). 2 Following unsuccessful conciliation the matter proceeded to a hearing held on 21 February 2006 in Lismore. Both parties represented themselves at the hearing with the respondent being represented by Mr. Michael Hulbert a Director of the respondent. Applicant's Case. 3 The applicant was a long term employee of the respondent having commenced on 8 December 1996. She was a casual employee and carried the duties of a housekeeper/ maid. The applicant stated that the number of shifts per week that she worked varied according to the number of guests at the beach resort. Early in 2005 the applicant approached Mr. Hulbert seeking a pay increase as she believed she was carrying out the duties of a week- end supervisor. This was rejected. She again approached Mr. Hulbert in March 2005 for a pay rise and again was unsuccessful. 4 As a consequence of being offered less shifts and therefore working less shifts, the applicant obtained a second job on 21 April 2005, working as a casual housemaid for Homestead Motel (Homestead) in Ballina. 5 In August 2005 a new supervisor (Ms. Wendy Liddle) commenced with the respondent and the applicant received only two half day shifts per week. In September 2005 the applicant complained to the respondent's Human Resources representative Ms. Carol I'Anson. The best the applicant was offered was three half days per week. As a consequence the applicant sought as many shifts as possible from her other job at Homestead. 6 The applicant stated that she spoke to Ms. Liddle on Monday 31 October 2005 about her inability to work on Saturday 5 November 2005. Ms. Liddle asked her on Wednesday 2 November whether she was available to work the following day. She was advised that she was not. She was asked by Ms. Liddle about working on the following Sunday and was advised that she was available to work on Sunday 6 November. 7 On Friday 4 November 2005 someone from the respondent rang the applicant at her home but was advised by the applicant's mother that the applicant was at work at the Homestead Motel. A little later the respondent rang back and advised the applicant's mother that the applicant's shift for Sunday was cancelled and that they would ring back. 8 On Sunday 6 November 2005 Ms. Liddle rang the applicant and in the ensuring conversation, the applicant was advised that she was not working today because she did not turn up for work on the previous Friday. The applicant advised that she was unaware that she had to work on that day. Ms. Liddle stated that Friday was busy and that there was a note on the board. Ms. Liddle advised that she was sick of everyone not turning up for work and that the applicant was off the roster for the following week. When asked by the applicant when her next working day was, she was told that she was indefinitely off the roster at this stage. 9 Ex E in the proceedings was the applicant's diary. Handwriting in the diary showed that the applicant worked at Homestead on 3,4 and 5 November 2005 from 8.30 –12.30. Also stapled onto that page in the diary was the following hand written statement: Friday 4 November Wendy rang home in morning looking for me, was told I was at work. Rang back shortly later, left message not required on Sunday. (Previously advised it was busy) & that they ring me back. Sunday morning 6 November Wendy rang-no work today-I thought it was busy-"sort of" & taken off Roster next week. When asked when my next day was Indefinitely at this stage Why because I failed to work on Friday ( was not advised to work Friday nor on Roster ) 10 The applicant took that comment made by Ms. Liddle to mean that she had been terminated. Five days later she filed a claim for unfair dismissal. 11 After the first telephone conference chaired by DP Harrison, the parties met and the applicant stated that she could only work on Tuesdays and Wednesdays. Mr. Hulbert responded by stating that he would not be dictated to. The applicant was offered a shift for Friday 2 December but the applicant was not available. The applicant did not work again for the respondent. 12 At the second teleconference on 29 November 2005, no settlement was reached so the matter was set down for arbitration. Post the teleconference the applicant received a message to call Ms. Liddle. The applicant returned the call but did not wish to speak to Ms. Liddle on the basis that the Commission had ruled that arbitration should proceed. 13 The applicant stated that the general criticism of her unavailability was due to the lack of notice given by the respondent to come in and work. She had sought a greater number of shifts and when they were not forthcoming she had to find a second job. 14 The applicant stated that her personal circumstances had changed. The applicant stated that she has since moved in and lives with her mother and consequently receives a carer's pension which allows her to work up to only 20 hours a week. This payment commenced some time in November 2005. 15 The applicant did not seek reinstatement but an order for maximum compensation. Respondent's Case. 16 Mr. Michael Hulbert, Ms. Carol I'Anson and Ms. Wendy Liddle filed statements and gave evidence for the respondent. 17 Mr Hulbert stated that he was unaware of the issue of shifts offered to the applicant until August 2005 but was of the view that such matters were being adequately handled by his management team. He was unaware of any major issue until he received the applicant's unfair dismissal claim. He denied ever getting angry with the applicant or threatening to cut her days. He was unaware of any euphemism which was alleged by the applicant that "indefinitely off the roster" had a meaning of termination of employment. He also stated that Ms. Liddle had a hands on roll that would result in loss of hours on the roster and the contracting out of the laundering operations would result in a similar loss. 18 He stated that Ms. Liddle did not have the right to hire or fire any employees. Prior to any appointment or termination Ms. Liddle must consult with either himself or Ms. I'Anson. At no time had Ms.Liddle advised himself that she wished to terminate the applicant's employment. 19 Ms. Carol I'Anson is the on site Manager of the respondent and had held this position since 9 March 2005.She is responsible for the housekeeping operation of the respondent. When Ms. Carol Liddle commenced in July 2005 she assisted her in compiling the rosters for the housekeeping staff. It was decided to give all staff a minimum of two shifts per week. Low levels of trade were occurring at the time. She met with the applicant in August 2005 and sought to assist her in offering her work on specific days of the week, as she was aware that she had alternative employment. She stated to the applicant that this could not be a continual guarantee because of fluctuations in levels of occupancy rates. In the months that followed the days that the applicant was available changed and seemed to reduce. It seemed the applicant's other job was taking priority which was impacting on the respondent's ability to properly staff the housekeeping operation particularly during the busy periods. Ms. I'Anson was of the view that both prior and post the unfair dismissal application the respondent attempted to accommodate the applicant's wishes and requests as much as reasonably possible. 20 Ms. Wendy Liddle commenced with the respondent on 30 July 2005 and was the applicant's immediate superior. She stated that she was approached by the applicant in August 2005 seeking set days of work. After discussions with Ms. I'Anson, she offered the applicant 5 days per fortnight. Monday, Wednesday and Saturday in week one and Tuesday and Wednesday in week two. These days were not "set in stone" due to the vagaries of the accommodation industry. Subsequent to that arrangement the applicant continually changed the days of her availability. It became clear to Ms. Liddle that her other job was taking precedent. Rostering became more difficult. 21 Ms. Liddle stated that she drew up a roster for early November 2005 and rostered as many people as possible on Friday 4 November. She advised all staff verbally on Wednesday 2 November that they would be required on Friday 4 November including the applicant. The roster was also posted in the laundry. On Friday 4 November the applicant did not turn up for work. Ms. Liddle sought to contact the applicant by ringing her home number but was advised by her mother that her daughter was at her other job. Later Ms. Liddle rang the applicant's home again and advised the applicant's mother that the applicant was not required to work on Sunday 6 November. She asked that the applicant call her back. Ms. Liddle did not receive a return call. 22 On Sunday morning 6 November Ms. Liddle rang the applicant at approximately 8.00am to ensure she had received her earlier message. Ms. Liddle told the applicant that she was not required to work that day, because it was decided to "carry over" the rooms until Monday. The applicant was asked why she did not come to work on Friday 4 November and replied that she was not aware that she was on the roster. The applicant then asked Ms. Liddle when she was next on the roster and was told: "at the moment you're not on the roster for next week". That was the end of the conversation. 23 Ms. Liddle confirmed that she did not have the power to hire or fire and must consult with Mr. Hulbert and or Ms. I'Anson. She stated that she had no intention of terminating the applicant. A couple of days later Ms. Liddle was advised that the applicant had filed an unfair dismissal claim. 24 On 28 November 2005 Ms. Liddle attended a meeting with the applicant where the applicant advised that she could work only Wednesdays and Tuesdays. After the meeting, Ms. Liddle checked the rosters and occupancy levels and then offered the applicant some shifts but the applicant was unavailable. 25 On 29 November 2005 (post the second teleconference) Ms. Liddle again rang the applicant and offered shifts for Wednesday 30 November and Friday 2 December 2005. The applicant called back later to advise that she unavailable for those shifts and further that she was unavailable for any further shifts at the respondent until after the arbitration. 26 Ms. Liddle rejected the claim by the applicant that her hours were cut as a consequence of her appointment. The applicant's hours were reduced prior to her appointment. Short notice given to staff occurred due to absenteeism and late changes to occupancy levels. Ms. Liddle rejected the version of the conversation between herself and the applicant on Sunday 6 November as those were not the words that she would ordinarily use. Consideration 27 The applicant had been a long term employee of the respondent who over the years had enjoyed being rostered on a good number of shifts per week. When the number of those shifts started to reduce around March 2005 the applicant sought a second job. The applicant then sought to juggle the two jobs. Her approach to the respondent to obtain some consistency in what was being offered was understandable. I think it was also understandable from the respondent's point of view that what was offered was not "set in stone" because of the very nature of the industry and the variables that have to be taken into consideration when writing up a roster and the variations that may have to occur at short notice. I did not detect any maliciousness' on behalf of either Ms. I'Anson or Ms. Liddle towards the applicant with respect to trying to offer her shifts on the days she was available after their August 2005 meeting. The applicant agreed in giving evidence that she did change her availability days. 28 From the applicant's point of view she was not rostered to work on Friday 4 November 2005. From her diary (Ex E) it is hand written that she worked in that week the following : 31 Monday BBR 9.00-12.45 1 Tuesday 2 Wednesday BBR 9.00- 12.45 3 Thursday Homestead 8.30 –12.30 4 Friday Homestead 8.30-12.00 5 Saturday Homestead 8.30-12.30 6 Sunday BBR 9.30 It was also handwritten on 6 November : "Wendy BBR rang no work !!" It was the respondent's submission that the applicant had been advised that she was required to work on Friday 4 November. There was no evidence brought before the Commission that the applicant had a practise of being rostered on for work and not turning up. Both Ms. I'Anson and Ms. Liddle confirmed that the applicant was a reliable person in attending for work. 29 It was the applicant's submission that she did not know that she was required to work on Friday 4 November. The applicant therefore did not attend on 4 November for work. A review of the applicant's diary from the week commencing 5 September 2005 up to week commencing 31 October inclusive showed that the applicant worked between one and three shifts per week for the respondent. She worked every week. 30 Based on the evidence that came before the Commission I find that the applicant was unaware of being required to work for the respondent on that Friday. 31 As a consequence of the phone conversation on Sunday morning 6 November 2005 between the applicant and Ms. Liddle, the applicant determined that she had been terminated. Ms. Liddle denied that she terminated the applicant. 32 The applicant stated that she was told by Ms. Liddle that "next week you're off the roster", and in response to the question as when was her next working day, was advised " you're indefinitely off the roster at this stage." Ms. Liddle said with respect to when the applicant was next rostered to work was advised "at the moment you're not on the roster for next week." 33 Ms. Liddle stated in evidence that other regular employees were not rostered for that week as she was going to train other persons in the lead up to the busy period. 34 The applicant submitted that as a consequence of seeking a pay rise in March 2005, the number of shifts offered reduced. It was at this time that the applicant sought employment with Homestead. It would seem the attitude of the respondent was to share the available hours around all house keeping staff. The attitude of the applicant was that because of her length of service, she should have received preference in gaining extra hours. She sought but was not granted a degree of preferential treatment. 35 After listening to the witnesses I can understand the difficulty in rostering staff in advance based on accommodation booked at the time of developing the roster. A casual employee may only be offered one or two shifts in a week in accordance with the needs of the business, but then be offered at short notice extra shifts as a consequence of a sharp increase in bookings or sickness with other staff. If such an employee receives an offer but can not accept the extra shift(s), then that person misses out. 36 The applicant stated in evidence that after August 2005 she advised the respondent that "whoever requested my work first, I would have to take it…". As a consequence of taking the extra job the applicant automatically made herself less available for the respondent and therefore worked less shifts. This was a different situation for the applicant. I believe a degree of frustration had built up on both sides. Ms. Liddle due to the applicant's perceived unavailability to perform her shifts or any extra shifts and the applicant with seeking regular work that dovetailed into her work with her other job. 37 The onus falls on the applicant to prove that there was a termination at the initiative of the respondent. The applicant stated that Ms. Liddle used the phrase "indefinitely at this stage". Ms. Liddle denied using the word "indefinitely". She was clear that she never used such a word. She agreed that she had not rostered the applicant "at the moment" for the by then current week roster. The applicant was asked by the Commission during final submissions as to what she believed the phrase "at this stage" meant. The applicant respondent that it meant, she was off the roster indefinitely. Even if I accept that Ms. Liddle used the phrase "indefinitely at this stage" I do not accept the applicant's interpretation. The term "at this stage" in my view seeks to qualify the word "indefinitely" and does not equate to being deleted from the roster permanently, thereby resulting in a termination of the applicant. If the applicant had been terminated by Ms. Liddle via the phone call on 6 November, the only reason could have been the applicant's non appearance at work on the previous Friday. Based on the applicant's sound reputation, as acknowledged by Ms. Liddle and Ms I'Anson, of the applicant always turning up for work as rostered, I do not believe it was the intention of Ms. Liddle to never offer work in the future to the applicant. 38 It is my finding that the applicant had not been rostered for that week at the time of the phone call, but no more than that. 39 It is my finding that Ms. Liddle did not seek to terminate the applicant nor did she, via their telephone conversation on the morning of Sunday 6 November 2005. 40 It is not illegal not to roster a casual on a shift(s) for a week. Either the employee may not make themselves available or the employer may not require them. Either way it does not terminate the employment contract. If after a few weeks the applicant had not been offered work then one could question whether work would be offered in the future. But that did not happen in this case. The claim for unfair dismissal was filed five days later. 41 There was disagreement between the parties as to how many shifts were offered to the applicant during the conciliation process but shift or shifts were offered. That what shift(s) were offered were not acceptable to the applicant at the time is not the fault of the respondent. I believe there was a genuine attempt by the respondent to continue the employment contract. 42 In arriving at my decision I have considered the written final summaries as provided by the parties and thank them for their assistance. I have considered the case Jacqueline Sally McNicol and Westco Jeans Pty Ltd [2004]NSWIRComm111 but believe it can be distinguished in fact from the present case in that I do not believe that the applicant had been permanently taken off the roster. 43 In summary it is my finding that there was no termination at the initiative of the respondent, therefore the unfair dismissal application filed by the applicant is dismissed. 44 I do however strongly recommend that due to the particular circumstances of what did occur in this matter, the respondent pay the applicant a sum of money equal to her pro rata long service leave entitlement. 45 This matter is now concluded. D.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.