Industrial Relations Commission of New South Wales CITATION: Williams & Gallis Pty Ltd [2006] NSWIRComm 1114 APPLICANT Sara Illsley Williams PARTIES: RESPONDENT Gallis Pty Ltd FILE NUMBER(S): 175 of 2006 CORAM: Bishop C CATCHWORDS: Unfair dismissal - whether resignation accepted or ongoing employment offered in different role - whether termination occurred at end of a notice period - communication errors - no warnings. Held - resignation not accepted - ongoing employment in changed role and rates - subsequent termination - communication errors - no work issues or problems raised - termination harsh unjust and unreasonable - compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 Bankstown City Council v Paris (1999) 93 IR209 Byrne & Anor v Australian Airlines (1995) 61 IR 32 CASES CITED: D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Outboard World v Muir (1993) 51 IR 167 Parker v Capitol Painters & Decorators Pty Ltd (1996) 68 IR 100 Sams v Contact Point Internat. Pty Ltd (2001) NSW IRComm 18 HEARING DATES: 13/04/2006 DATE OF JUDGMENT: 07/13/2006 Mr D Hooper Solicitor LEGAL REPRESENTATIVES: Mr D Gillan Restaurant & Catering Association NSW DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 13 July 2006 Matter No IRC 175 of 2006 Sara Illsley Williams and Gallis Pty Ltd Application by Sara Illsley Williams re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1114 1 This is an application by Sarah Illsley Williams against Gallis Pty Ltd for a remedy pursuant to S.84 of the Industrial Relations Act,1996. Ms Williams alleged that she was dismissed from her position of Manager with the Company on the 18 December 2005. She sought reinstatement or, alternatively, monetary compensation in lieu thereof. 2 The matter was listed for conciliation and directions before Commissioner Cambridge on the 2 February 2006 at which time conciliation took place. As no settlement could be reached directions as to the filing and exchange of witness statements were issued in accordance with Practice Direction 17. The matter was subsequently set down for hearing before me on the 13 April 2006. 3 At the hearing Mr Hooper, Solicitor, appeared on behalf of the applicant and called the following witnesses to give evidence: Sarah Williams - applicant (Exhibits 1 and 2) Marcus Peterson - former employee, Gallis Pty Ltd ( Exhibit 6) 4 Mr Gillan from the Restaurant & Catering Association (NSW) appeared on behalf of the respondent and called the following witnesses to give evidence: Rita Haddad - National Manager, Gallis Pty Ltd (Exhibit 7) Mari Jakovich - Manager, Gallis Pty Ltd (Exhibit 8 ) Background - based on the evidence filed and the transcript. 5 Gallis Pty Ltd is a Cafe Bar/Restaurant business which owns thirteen company owned and franchised operations around Australia. The restaurants trade seven days a week sixteen hours a day and are staffed by a mix of full-time and casual employees. 6 Ms Williams did not have previous experience in the industry but had owned her own business (a pet shop) and had also worked in her mother's cafe. 7 On 21 September 2005 Ms Williams commenced as a casual at Toscani's Cafe Restaurant at Hornsby Westfield carrying out customer service and waitressing duties. The Manager of the Hornsby Restaurant carried out the interview. 8 About a week after Ms Williams commenced employment she met Ms Haddad who asked her to take on the position of Manager a new restaurant opening up at Tuggerah. Ms Williams was paid a casual Manager's rate of pay from the following Monday and was to receive training for the new position. 9 Ms Williams was subsequently appointed as the Manager of the Hornsby restaurant in early October 2005 and in late October moved from casual rates onto salary ($50,000 p.a. or $961. 54 per week). 10 On 3 December, following a direction from the Company to terminate another employee at the Hornsby restaurant (Mr Peterson), Ms Williams sent an SMS text message to Mr Chris Magiciis (Director) that he should "find a new manager". No date was give for when the resignation was to take effect. 11 Ms Haddad was subsequently contacted by Ms Williams and arranged to meet her on Monday 5 December at the respondent's Parramatta restaurant to discuss the situation. Mr Peterson accompanied Ms Williams and her two children and sat at a nearby table during the meeting. As a result of the meeting Ms Williams was to continue as Manager of the Hornsby restaurant until a replacement Manager was appointed and then continue on as a casual. 12 The exact terms of the agreed arrangement and the position to be occupied by Ms Williams are in dispute between the parties, as was whether or not a formal notice period was provided by Ms Williams. 13 On 18 December the new Manager, Ms Jakovich, advised Ms Williams that she had been instructed by Mr Magiciis that as her notice period was completed that day she was to finish up. A subsequent offer of ongoing casual shifts was rejected by Ms Williams. The Evidence 14 Ms Williams maintained that when she was approached by Ms Haddad to take on the role of Manager and open the new Tuggerah restaurant she was promised training. This was to involve on the job training with the existing Manager and also the 2IC at the Hornsby restaurant as well as two days training from Ms Haddad. Ms Haddad was also going to spend two weeks with her. The training and assistance from Ms Haddad never eventuated and the 2IC was off sick for the week. 15 The only training she received was from the Manager at the Hornsby restaurant. She also opened up the restaurant in her absence. She then worked at the new Tuggerah restaurant in preparation for its opening. 16 When this Manager was dismissed in early October Ms Williams was asked by Ms Haddad to take over as Manager at Hornsby. 17 Ms Williams was never given any paperwork about her position or the move onto salary in late October. She found out that she had been moved onto salary from another employee. That was subsequently confirmed verbally by Ms Haddad. 18 Ms Williams was advised that on salary her hours would be 45 per week and any extra hours worked would "float" with 45 always being paid even if one or two hours less (or more) were worked. Ms Williams did not receive payment for extra hours worked before that move onto salary but was "pleased" her employment was secure. 19 Whilst Manager at the Hornsby restaurant Ms Williams completed her RSA Certificate. She also became the holder of the Liquor Licence for the restaurant. 20 In late November Ms Haddad asked her to take responsibility for hiring and training staff for a new restaurant opening at Parramatta. This occurred over a period of a week and a half. During this time she was also told to reduce the budget at Hornsby and use the staff that were being trained for this purpose. She protested this to Ms Haddad on the basis that it left only her and Mr Peterson as staff with any experience. 21 Ms Williams said that she was never given any formal training in completing rosters. The rosters were completed by the Supervisor at the restaurant and sent to the Company in Brisbane. Ms Williams said the rosters were not sent back and she was never aware that the rosters had to be approved or that there was a budget for the rosters. 22 Ms Williams also gave general evidence about stresses involved in her job, hours worked, lack of support and training, being told she couldn't work extra hours as well as having to dismiss employees which she regarded as unprofessional. 23 On Saturday 3 December 2005 Ms Haddad had telephoned her and told her to take Mr Peterson off the roster. Initially no reason was given for that but later Ms Haddad told her that it was because he was took extra breaks. Ms Williams told her she considered that all staff did that. At the time Ms Williams was involved in a relationship with Mr Peterson and it was also his birthday that day. Once she had told him what she was supposed to do he gave his resignation to the Executive Chef in Brisbane so she would not have be the one to dismiss him. There had also been an earlier occasion when Ms Williams had been told to dismiss another employee. 24 Ms Williams sent an SMS text message to Mr Magiciis in Brisbane on 3 December saying that as she didn't think it was very professional she was resigning. She did not give any date for the resignation. 25 Ms Haddad deposed that the message was forwarded to her on Monday 5 December 2005 and that it said: "Sorry Chris you need to find a new manager, this job has made me sick, I cant eat and sleep and making me fire someone based on someone's opinions is not professional; sent 21:25 03-12-05" 26 Ms Haddad went on to depose that after she received the message Ms Williams rang her to confirm that she had received it. Ms Haddad then arranged to meet her at the Parramatta restaurant later that day to discuss the situation. 27 It was Ms Williams' evidence that she went to the Parramatta restaurant with Mr Peterson and her two children. Mr Peterson sat at an adjoining table with the children and at some stage came over to the table. Mr Peterson also deposed that he sat at an adjoining table but in cross examination said he was sitting two tables away. Ms Haddad's evidence was that Mr Peterson was about four tables away. 28 Ms Williams maintained that during the conversation with Ms Haddad they discussed the situation at the restaurant, the stresses etc and that Ms Haddad told her that she had spoken to Mr Magiciis and they didn't want her to go and were happy with her work. They would get a new Manager in that wasn't known by anyone and Ms Williams could be 2IC. She was asked to stay on in that position which would be at casual rates and pay more than the salary rate. She would also have the option of not working weekends. (This had been a problem, on Ms William's evidence, as she now had custody of her children on the weekends). 29 Ms Williams accepted the position and said she was asked to stay on as Manager until the new person started. She agreed to this. Ms Williams also denied that there was any mention during the meeting about two weeks' notice or any other notice period. 30 Ms Williams again confirmed this version of events in cross examination and said that she had accepted the position because she was happy in her job. She wasn't happy with the stress or lack of assistance. She denied that there was any incongruity in accepting an on-going managerial role when she had all these concerns. She said Ms Haddad was aware of the stress situation and that was why she offered her the position to stay on but with someone else as Manager that had never been in the restaurant and with Ms Williams standing by to help them but with the pressure off her. This detail had not appeared in her witness statement but she essentially said that a lot more was said than she had written down which was just the "short come" of what was said. 31 Ms Williams deposed that Mr Peterson had come over to the table at this stage and heard this conversation and that Ms Haddad had also reinstated him. Mr Peterson confirmed that reinstatement in his witness statement and also the content of the conversation between Ms Williams and Ms Haddad about her resignation not being accepted, being offered the 2IC position and staying on as Manager until the new Manager started. 32 In cross examination he said he went over to the table to ask something about a pizza and that whilst sitting at the table with the children he was chatting (but not much) with Ms Williams' ten year old son. He was not directly challenged on whether or not he had heard any of the content of the conversation as he had deposed. In answer to questioning from the Commission he said he could overhear what was being said but not all things. It was a normal conversation and was not heated. 33 In contrast Ms Haddad deposed that she said she told Ms Williams she accepted her resignation and "understood" that she wanted to give two weeks' notice. When Ms Williams said she was sad about leaving Ms Haddad said that if she felt comfortable working under a new Manager she could work casual hours and would go onto the casual rate at the end of her notice period. 34 Ms Haddad denied that there was any discussion of, or offer of the position of 2IC at casual rates. Nor was there any mention of not having to work weekends. However she conceded in cross examination that she wanted Ms Williams to stay on, was happy with her work and that she reinstated her. 35 Ms Haddad also denied that she reinstated Mr Peterson and asserted that he was put back on by Ms Williams and that she then agreed over the phone (when she got back to Brisbane ) that it would be alright for him to work in the restaurant as long as he was working with Ms Williams. Mr Peterson continued working at the restaurant as casual bar staff until January 2006. 36 There was also divergence between the three witnesses as to the length of the conversation between Ms Williams and Ms Haddad. Ms Williams said they were there for about an hour and a half. Mr Peterson said the conversation went on for about fifteen to twenty minutes and that they were at the restaurant for about half an hour to forty five minutes. Ms Haddad said the conversation went for about twenty minutes but made no mention of how long they were at the restaurant. Ms Haddad, on Ms Williams evidence, had been at the restaurant as it was being opened that day. 37 Ms Haddad rang Ms Williams about Monday 12 December to tell her that she had found a new Manager and that it was Ms Jakovich. Ms Williams queried whether she was the same person that had previously been "fired" twice. She was told that it was, but when asked said she did not have a problem with that. Ms Haddad confirmed that this conversation took place. 38 It was also during this conversation that Ms Williams said she queried when she was going to come off salary and was told by Ms Haddad that it would be at the end of the current pay week and she would then go onto 2IC casual rates. 39 when Ms Williams met Ms Jakovich on Thursday 15 December she told her that there was gossip in the restaurant about her but that it would not affect their working relationship. 40 Ms Jakovich agreed that such a conversation took place but did not agree that there were two issues mentioned by Ms Williams as being the subject of gossip (drinking and a relationship with a staff member) only the relationship issue was referred to. Ms Jakovich also said that Ms Williams had told her that she did not have any experience in the industry and was struggling to cope. Ms Williams denied saying that to Ms Jakovich. 41 Ms Jakovich maintained in cross examination that Ms Haddad told her Ms Williams had resigned and that she was to continue as a casual. She wasn't quite sure what her role was. She also maintained that nothing was said about her being 2IC, that was a position held by Luke Morris. However she agreed that he became 2IC on 15 January 2006 but said that was when he became permanent before that she thought he was acting 2IC. 42 Ms Williams then worked a shift with Ms Jakovich on Friday 16 December and they appeared to get on alright. Ms Jakovich was rostered off on the Saturday and Sunday which Ms Williams worked and said she was effectively the Manager in the absence of Ms Jakovich. 43 However Ms Jakovich came in on the Sunday afternoon (18 December) and Ms Williams' evidence was that she asked her to sit down with her and then told her that she had spoken to Chris (Mr Magiciis) and he had said she should be let go due to lack of experience. Ms Williams protested that she had had no warnings. She said that she would take the matter further and was upset when she left the restaurant. 44 Ms Jakovich maintained that what she said to Ms Williams was that Chris (Mr Magiciis) had told her that she had resigned and this was her last day in the restaurant. She then said it was an unfair dismissal and she was taking it to court and stormed out. This was all denied by Ms Williams. 45 Later Ms Williams attempted to ring Mr Magiciis, could not contact him and he did not return her call. However Ms Williams later had a long phone conversation with Ms Haddad who told her that it wasn't true that Mr Magiciis had said she didn't have enough experience but rather that Ms Jakovich had rung him to say she couldn't do her job properly while she was there. Ms Jakovich could not recall saying anything like that to Ms Haddad 46 Ms Williams also said she queried why if they were going to fire her they said she was going to be 2IC helping the Manager. Ms Haddad said they had accepted her resignation and were going to put her on casual wages. 47 Ms Haddad rang Ms Jakovich who confirmed that Mr Magiciis had told her that she had resigned effective 18 December. Ms Haddad said she corrected her by saying that when she had resigned at Parramatta it was agreed that she would continue to work as a casual. She then contacted Ms Williams and told her she'd agreed that she could continue to work as a casual and would speak to Ms Jakovich and organise for her to "give you some hours". Ms Williams said OK to this. Ms Haddad did not refer in her evidence to any other content of the conversation with Ms Williams. 48 Ms Jakovich agreed that she was contacted by Ms Haddad and told to give Ms Williams some casual hours as it had been agreed she would continue to be given casual work. She then rang Ms Williams and offered her casual work but was told by her that "I am better than that. I will be taking this to court". Ms Williams maintained that all Ms Jakovich offered was shifts for wait or floor staff to get her over Christmas. She rejected this because Ms Jakovich had said she couldn't work with her. 49 Ms Williams was not supplied with a reference as promised by Ms Haddad. 50 Since her termination Ms Williams had encountered financial difficulties and had been unable to secure employment in the restaurant industry. She had obtained casual employment in a Private Hospital as an Assistant in Nursing (having requisite qualifications in that area) between 10 January and early February then as a casual in the Childcare industry for the rest of February into early March. She was in full time employment as at the time of the hearing and had been working for the past month earning $1280 gross per fortnight. There was no precise detail as to total earnings since her termination. 51 In her original Part 7 Application Ms Williams sought, inter alia, three months' monetary compensation. Submissions 52 Mr Hooper on behalf of the applicant submitted that whilst this case was somewhat "muddied" the essential matters in issue related to the extent of the conversations at the Parramatta restaurant. 53 The evidence was clear that Mr Peterson was in close proximity to the table at which the conversation took place. Whilst there was a discrepancy between the witnesses as to the distance between the two tables, the Commission should rely on its many years of experience and consider that it was reasonable for such conversations to be overheard even if it be four metres away. No attempt was made to challenge Mr Peterson's evidence as to listening or overhearing, nor was the credibility of his evidence. He had actually resigned and was reinstated and worked until January with Ms Williams leaving on 18 December. 54 The applicant was quite clear in her evidence that she had proffered her resignation by SMS and that that was her intention. She was open about that and that went to her credibility. However there was no time frame placed whatsoever either on the resignation or when a new Manager would start, it was open-ended. It was not conceded that any mention was made of two weeks' notice which came from Ms Haddad. 55 What occurred was that a party's attempted resignation was not accepted and her role was changed in an attempt to keep her on. The applicant was quite happy with that as the inducement was that a new Manager would be taken on, she would stay on as 2IC and also as the Manager until the new person started. 56 On any reading of the evidence Ms Jakovich had dismissed the applicant, even if it was on the instruction of someone else. Her employment was over from that day and the Commission was being asked to accept that it was really that she had resigned, it was her last day and there was some lack of communication on the part of the respondent. 57 The applicant had been a good employee and had gone from a casual with no experience to being offered the position of firstly Manager of the new franchise at Tuggerah then for preference the position at Hornsby. There she became the liquor licensee and trained new staff for the new Parramatta restaurant. Yet when a new manager wass appointed to replace her she was gone. 58 It was submitted that the issues raised about Ms Jakovich were relevant as she was the one who had the final word, although she didn't know Ms Williams beforehand, and said Mr Magiciis told her to. Yet Ms Haddad said that's not the way it was supposed to happen and I cleared that up. In effect they tried to reinstate the applicant but they'd already terminated her. 59 It was troubling that the respondent was trying to blame this "faceless person" in Brisbane yet had not called him as a witness. 60 It was submitted that the evidence of the applicant and Mr Peterson was clear however the evidence of Ms Haddad and Ms Jakovich was "muddied". 61 The applicant was induced to change her position. It was a management role. It was clear on the evidence that Ms Jakovich did not have the authority to sack anyone in a management position. She did not seek the authority of Ms Haddad before doing so and it was a wrongful termination. Ms Williams was to leave effectively immediately. Ms Haddad said she had simply changed her role but she was supposed to stay on as a casual. Either way she was not supposed to go. If they were going to rely on the authority of Mr Magiciis then a statement should have been put on by him to that effect. 62 It was submitted that the hardship to the applicant was demonstrably clear and reliance being placed on an "invisible person" should not be accepted by the Commission. 63 Mr Gillan for the respondent submitted that the applicant's case had been built on the "shaky foundations" of questioning the credibility of the respondent and its witnesses in ways that didn't really relate to the central issue of how the employment came to an end on 18 December and whether Ms Jakovich dismissed the applicant. 64 Much of the applicant's evidence went to the issue of hours worked and overtime. It was clear from the evidence that the applicant authorised her own overtime and refused to follow proper procedures. This was explained by reference to the respondent's inadequacies as to training and support. 65 The applicant had also sought to blacken the name of the respondent by involving incidents with other employees and also paint a picture of an employer who underpays wages. The Commission should have no regard to that. 66 It was more accurate to say that the applicant's employment experience was a positive one with the respondent giving her a huge career opportunity and encouraging her all the way. The career development was matched with commensurate enhancements of title and remuneration. It was conceded that the salary introduction was a unilateral variation but it was "very nice variation". 67 There was no mistreatment of the applicant. that was very relevant as it was ultimately this alleged mistreatment that led to the applicant sending the text message and the meeting of the 3 December. 68 It was an agreed fact that the applicant resigned and that she would continue to work for the respondent and as Manager until a new one was appointed. Where the divergence occurred was whether she had been offered a casual position or a casual 2 IC position. 69 However the real significance in this issue was the fact that here was an employer who reacted positively so much so that it was agreed that the applicant would continue in employment. The respondent took appropriate steps to get from the applicant just what the problem was. Although it was pointed out that none of the issues raised during proceedings were contained in the applicant's written evidence. 70 Mr Peterson's evidence had to be considered in the light of the relationship he had with Ms Williams at the time and he obviously could be characterised as a witness who had an axe to grind whose interests were much the same as the applicants. The reliability of his evidence could be questioned. 71 It was the applicant's case that Ms Jakovich had dismissed her on the 18 December. However Ms Jakovich was only the messenger, she had been given certain information and acted on it and this was consistently maintained in cross examination. 72 The information involved a resignation and two weeks' notice. When one looked at the events it was very telling that two weeks' notice given on 5 December plus 14 days gives 19 and Ms Jakovich acted on 18 December. It was highly questionable that Ms Jakovich would just act on a "frolic of her own" just because she had taken a dislike to the applicant as was attempted to be suggested. 73 Mr Gillan refuted the suggestion that when Ms Williams resigned she was re-employed on inferior terms. There was no unilateral variation, both the applicant and Ms Haddad reached agreement on new terms and conditions and the applicant was happy with what was agreed to and said she loved the job. 74 Submissions about the hardship encountered by the applicant following her termination should not be given consideration by the Commission as such matters do not wholly relate to the issue of compensation orders and there was no provision for that in the Act. 75 There was no deliberate strategy to not call Mr Magiciis. Both he and Ms Haddad reside in Brisbane and there was a cost factor to be considered. The way the respondent had presented the case it was quite clear that Ms Jakovich had acted on misinformation in a rather innocuous way. Ms Williams had flown off the handle. Ms Haddad had, to her credit, on learning an error had occurred, intervened to rectify the situation. This was rejected by the applicant. 76 Finally if the Commission was minded to intervene on behalf of the applicant it was pointed out that she only had three months' service and her time out of work was very short. Mr Gillan submitted that he had done a rough calculation based on the applicant's evidence and that showed she had earned between $4000 and $5000 since 18 December. She also had worthy qualifications in nursing and the ability to find and remain in employment, therefore rendering her loss at the lower end of the scale. The question of costs was reserved. 77 There were no submissions in reply from Mr Hooper. Consideration. 78 I have carefully considered the relevant evidence and the submissions of the parties as well as carefully considering the transcript of proceedings. 79 It is most unfortunate that this matter did not settle through the conciliation process as this matter presents as a classic case of miscommunication and misinformation that should not have resulted in the severing of the employment relationship. A relationship that had benefited both parties. 80 There have been no issues raised of any dissatisfaction with the applicant's work performance. Indeed as Mr Gillan rightly acknowledged the applicant's worth and efforts were recognised with quite rapid promotion and allocation of managerial responsibilities (including training) against a background of little experience in the industry. It is clear Ms Williams was a valued employee and her value was identified by the respondent at a very early stage of her employment and rewarded with both a substantial promotion and remuneration. Whilst her capabilities and efforts were recognised and rewarded they also provided undoubted benefits to the respondent. 81 There is no doubt that Ms Williams freely tendered her resignation, albeit in an informal mode, on 3 December. There was no argument that that was not her intention. However it was clearly a "spur of the moment" action and quite rightly the employer, through Ms Haddad, sought the opportunity of discussing the matter with Ms Williams on 5 December rather than simply acting on the opportunity of getting rid of an employee in such a situation. It was perhaps fortuitous that Ms Haddad happened to be in Sydney, apparently for the opening of the new Parramatta restaurant. 82 There can also be no doubt that no notice period was put forward by the applicant prior to the meeting. I doubt she had even considered the ramifications of what she had done so precipitously and thought about such an issue. She clearly had not thought through those ramifications the subsequent expressed concerns in her application about the problems raised by being dismissed just prior to Christmas. 83 Therefore I must consider whether I accept the evidence of Ms Haddad over that of Ms Williams as to whether the applicant had indicated she was giving two weeks' notice (or rather Ms Haddad saying she understood she was giving two weeks' notice). Frankly there is just no evidence that Ms Williams approached the meeting with an intention to give two weeks' notice. There was no suggestion in Ms Haddad's evidence that this had been mentioned as any sort of intention in the phone call she had with Ms Williams earlier that day when the meeting was arranged. 84 If there was any likelihood that two weeks' notice was mentioned at all, then I would expect that to come from an employer who in such circumstances would usually say something along the lines off "well I accept your resignation but we require a two week notice period". I hasten to add that that would not be an unreasonable position for an employer to take once it had ascertained that an employee was genuine about such resignation and it was appropriate to accept such. 85 I am not persuaded by Ms Haddad's evidence that Ms Williams indicated she was giving two weeks' notice. I accept Ms Williams' version of the meeting. 86 I also accept that it is quite clear that there was a discussion of the problems and stresses that Ms Williams considered she was under at the restaurant. As a consequence of that discussion, plus the fact that Ms Haddad on behalf of the Company obviously did not want to lose a valued employee, an agreement was reached that Ms Williams would stay on as Manager until a new person was appointed (from outside the current employees) and would then carry on as 2IC. 87 It is simply ludicrous, in my view to try to suggest that the issue if staying on as 2IC was neither discussed or agreed to. I am quite sure Ms Williams would never have agreed to stay on in something as nebulous and uncertain as just continuing to get casual shifts and exercising no responsibility after the period of time she had spent in the Manager's role. Ms Haddad was clearly offering the prospective position of 2IC as an inducement to stay on at the restaurant and effectively did not accept her resignation from her employment with the company. What was agreed to was a changed role and remuneration (back to casual rates). Indeed Ms Haddad conceded in cross examination that she reinstated Ms Williams. 88 I also note that it is apparent from the evidence that at that time there was in fact no 2IC at the Hornsby restaurant. The person who had previously occupied the position had resigned in October when she was passed over as the Manager in favour of Ms Williams (not contradicted in evidence). Mr Luke Morris was the Supervisor during Ms Williams' time at the restaurant and on the evidence became 2IC the week commencing 16 January 2006 after Ms Williams had left. 89 Mr Peterson also confirmed the evidence of Ms Williams as to the conversation. Notwithstanding the discrepancy about how far away the table was, his actual evidence as to what he heard was not challenged and I am satisfied that he did indeed hear enough of the conversation to confirm the agreement reached. There is also no issue in my mind that both children were present and at his table, he merely spoke of talking to the ten year old son that cannot be taken to exclude the fact that there was also another younger child present and raises no issue as to his credibility. 90 I also find ludicrous the evidence of Ms Haddad that she did not also reinstate Mr Peterson at the end of her conversation with Ms Williams and that somehow Ms Williams was the one who took him back, a unilateral action which she subsequently agreed to in a phone call saying it was alright as long as he worked with Ms Williams. Ms Haddad had told Ms Williams on 3 December to sack Mr Peterson. That was essentially the final straw for Ms Williams and the reason she sent her SMS resignation to Mr Magiciis. The suggestion to take him back may well have come from Ms Williams (although there is no evidence of that) but I just cannot see that he would have been reinstated by Ms Williams acting on her own or without the full knowledge and authority of Ms Haddad. In any event Mr Peterson carried on working at the restaurant until after Ms Williams' effective dismissal on 18 December, not leaving his employment with the restaurant until January 2006. 91 The problem appears to have arisen as a consequence of firstly, Ms Haddad never communicating just what she had arranged and agreed to with Ms Williams to anyone else, including Ms Jakovich and apparently also Mr Magiciis. Unfortunately there was no evidence from Mr Magiciis to assist the Commission in this regard. 92 Secondly there is an almost total absence on the part of the Company of putting things in writing. Particularly anything confirming a resignation being received or accepted or that there was an agreement to change the terms of employment and just what that agreement was. 93 I have to say that for a Company with the number of employees indicated in Ms Haddad's evidence I am singularly unimpressed by their personnel practices. There seems to have been an almost revolving door for casual employees (and indeed possibly permanents) who are just dispensed with as a result of a phone call. I appreciate that this industry is by its nature a casual one but the coming and goings detailed in evidence (which certainly don't give the whole employment profile of the company) give a sufficient snapshot to raise concerns. 94 Very significant matters such as a move from a casual wage's employee at a waitressing level to firstly the position of Manager and secondly onto a permanent salaried basis are not documented or confirmed in writing. I find that appallingly slack on the part of the Company. 95 There also appear to have been no formal processes in place for training or documentation as to Company procedures concerning rostering or budget compliance or any other employment issues. These could easily be put in writing in a manual kept at each restaurant. There was no evidence that any such formality occurred. It all seems to have been very haphazard and spur of the moment. 96 True it is that there was evidence concerning the rosters being drawn up and sent to Brisbane each week but Ms Williams said whilst she had some involvement with that process she had no knowledge of the budget approval process. The documentation sought to be relied on by the Company just went nowhere in establishing just what was the procedure. The document produced in evidence (Exhibit 3) simply contained an error in the addition of some figures, with nothing that would indicate a need for prior approval for budgetary reasons as to the actual persons rostered or the hours to be worked. 97 I have to say at this stage that I was also singularly unimpressed with the oral evidence and demeanour of both Ms Haddad and Ms Jakovich. In contrast I was in fact impressed with Ms Williams and found her to be straightforward and genuine. 98 Again clearly Ms Jakovich was never told about the basis of Ms Williams' ongoing employment but I find it rather strange that in her evidence she consistently made reference to the fact that she had "spoken" to Mr Magiciis but at no stage indicated whether she rang him or he rang her. I consider that if in fact Mr Magiciis had rung her because (as he understood) Ms Williams was to finish up on the Sunday at the end of the notice period she would have very specifically acknowledged that Mr Magiciis contacted her and therefore precipitated her speaking to Ms Williams. There is also the evidence that Ms Williams gave (not contradicted) that Ms Hadad told her Ms Jakovich had rung Mr Magiciis. 99 I am of the firm view that Ms Jakovich did initiate the contact with Mr Magiciis and did in fact indicate to him that she didn't feel comfortable working with Ms Williams. Ms Williams gave evidence about what Ms Haddad had told her about what passed between Ms Jakovich and Mr Magiciis and that was not challenged or displaced by any evidence to the contrary from Ms Haddad. 100 There was never any issue raised by Mr Magiciis about Ms Williams' lack of experience. How could there be? The company were well aware of that through Ms Haddad. It had not been of sufficient consequence in the past so as to prevent firstly, her appointment as Manager (after one week as a casual) of the proposed new restaurant at Tuggerah (and to have the responsibility of the work involved to get it open) and secondly becoming the Manager at an established restaurant (Hornsby) not to mention being asked to train staff for the proposed new restaurant at Parramatta. All this within two and a half months of commencing as a casual waitress. 101 There were obviously conversations between Ms Jakovich and Ms Williams when they first met and in the very short time they actually worked together (one shift) and Ms Williams may well have indicated her background but I do not accept Ms Jakovich's version of what was said. I agree with Mr Hooper as to Ms Jakovich's motives in this matter to this extent that it may well have been what Ms Williams conveyed to her about knowledge of previous gossip that set Ms Williams in an unfavourable light. In addition there would have been the difficulty of working with someone in a 2IC position that had in fact been the previous Manager. 102 However any concerns Ms Jakovich may have had with working with Ms Williams were never raised with Ms Williams so they could be addressed in a proper way. 103 In my firm view what ultimately eventuated on 18 December was a termination of Ms Williams by Ms Jakovich at the behest of Mr Magiciis. 104 What is not clear is whether Mr Magiciis was fully aware of what had been agreed to on 5 December 2005 with Ms Williams by Ms Haddad on the Company's behalf. If he was and had simply decided to dispense with that agreement because Ms Jakovich had expressed difficulties in working with Ms Williams then that would make the actions of the Company even more unfair. If however, giving him the benefit of the doubt, Ms Haddad just never told him, then that points to an absence of proper communication and reporting processes within the Company in addition to the lack of any documentation concerning significant changes in the employment status of employees. 105 Clearly there a most unfortunate breakdown in communication and processes within the Company to the detriment of Ms Williams which could and should have been avoided. 106 The subsequent attempts to retrieve the situation by the offering of casual shifts over Christmas did not constitute an offer of continuing employment on the basis of what had been offered and accepted by Ms Williams on 5 December. Given what Ms Jakovich had said to Mr Magiciis about her ability to work with Ms Williams, I can understand Ms Williams taking the view (in conjunction with what was offered to her) that that offer was unfair and unacceptable. 107 Having carefully considered the evidence and the submissions of the parties I have come to the conclusion that the resignation tendered by Ms Williams in early December was effectively accepted as a resignation from the position of Manager only rather than a resignation from the employment of the Company and she was reinstated. There was then concluded between the parties (as a result of an offer by the employer) a continuation of the employment relationship albeit on different terms, that being in a lesser position of responsibility as 2IC (once a new Manager had started) and on casual rates rather than on salary. On December 18 Ms Williams was dismissed from her employment as 2IC which had come into effect on the commencement of Ms Jakovich as the Manager. 108 That termination was in the absence of any problems having been raised with Ms Williams about her work performance or indeed, even if it had been a genuine issue, her lack of experience. Indeed the motivating reason for her termination, based on the evidence, was simply that Ms Jakovich was going to have difficulties (unspecified ones at that) in working with Ms Williams. That matter was never raised with Ms Williams in any way. 109 In my view, the termination of Ms Williams in the circumstances was harsh, unjust and unreasonable. 110 The expression "harsh, unjust or unreasonable", was considered in Byrne & Anor v Australian Airlines (1995) 61 IR 32 at p. 72. The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p.182. Essentially, those cases hold that it is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any or all of those three. 111 The meaning of those individual terms has been considered in detail by Connor C in Parker v Capitol Painters & Decorators P/L (1996) 68 IR 100 at 104 and by Sams DP in Sams v Contact Point International Pty Ltd (2001) NSWIRComm 18. I adopt those considerations. 112 Bankstown City Council v Paris (1999) 93 IR 209 is authority for the fact that I must make a positive finding as to whether the termination of Ms Williams was harsh, or unjust, or unreasonable (or any combination thereof). 113 As I have indicated above, based on the evidence I find that the termination of Ms Williams was harsh, unjust and unreasonable. 114 Whilst all terminations invariably involve hardship to an individual, I am mindful of Ms Williams' personal circumstances as detailed in the evidence and the particular hardship engendered by a termination just prior to Christmas and the attendant difficulties that can arise in endeavouring to secure alternate employment at that time of year. However I am satisfied that she did attempt to secure employment during this time. 115 Ms Williams did not seek reinstatement or re-employment but monetary compensation in lieu thereof. She has now fortuitously found alternate full-time employment but at a lesser weekly rate of pay than that which she received whilst working for the respondent. There was also evidence of work she was able to obtain (and earnings) following her termination. However there was a period of unemployment at a difficult time of the year. 116 There are no provisions in the Act as to what is the appropriate amount to be awarded in compensation where a termination is found to be harsh, unjust or unreasonable and neither reinstatement nor re-employment is sought (as in this matter) or is held by the Commission not to be practicable (not relevant in this matter). 117 In terms of Section 89 (5) the upper limit for monetary compensation is set at "an amount of compensation not exceeding six months remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed". Section 89.5 is concerned essentially with the loss of earnings. Section 89.6 provides as follows: "When assessing any compensation hurdle, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant has succeeded in obtaining alternate employment". 118 As Ms Williams worked for a period of less that six months the maximum amount she in entitled to seek as compensation is an amount equal to the period of her service with the employer, in this case some twelve weeks. 119 However, in D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 the Full Bench of the Commission (Wright J President, Walton J Vice President and Tabbaa C) commented at page 363 that: "The power in the Commission to make a money order subject to the limitation on the quantum of compensation and the matters required to be taken into account by Section 89.6, is nevertheless within the Commission's discretion whilst the Commission is required to take into account the matters identified in Section 89.6 those matters are not necessarily to be reflected in any particular arithmetic or definitive way in the money order for compensation made". 120 As is my usual practice I list the factors that I have taken into account (not in any particular order of priority or importance) in determining the amount of compensation contained in the Orders I issue in this matter as follows: * Ms Williams had just over twelve weeks' service with the respondent. * Ms Williams had been employed on a salary of $50,000 per year (or $961.54 per week) and was due to return to a casual rate once she moved into the 2IC position she had been offered and had been told that she would receive more as a casual than she did on salary. However no evidence is available as to what those earnings might have been. * Ms Williams' casual rate on commencement with the Company had been $17.56 per hour. * Ms Williams received no warnings about her work performance and there is no evidence that her work was anything other than entirely satisfactory. * Ms Williams had been promoted to a position of responsibility within the first month of her employment. * Whilst Ms Williams had resigned on 3 December 2005, as a result of of the meeting of 5 December 2005 her resignation from the Company was not ultimately accepted but her role was to change to that of 2IC once a new Manager had started. This was to be ongoing employment with the Company. * A failure of communication and processes within the Company also occurred. * I have found that Ms Williams was terminated on 18 December 2005 and that that termination was harsh, unjust and unreasonable. * Ms Williams has now secured fulltime employment but earning a much lesser weekly rate of pay. * Ms Williams was out of work for approximately three weeks before obtaining casual work but at a lesser casual rate than she received whilst working for the respondent. * Ms Williams has earned approximately $4000 - $5000 since her termination on 18 December 2005. * Ms Williams has taken appropriate steps to mitigate her loss. 121 Accordingly I issue the following Orders: ORDERS 1. Pursuant to s.89.5 and s.89.6 Gallis Pty Ltd shall pay to Sara Illsley Williams an amount of compensation of $3700. This amount is a gross figure and taxation treatment is a matter for the parties. 2. The amount of compensation specified is to be paid within twenty eight days. 3. These Orders take effect on and from today's date 13 July 2006. Elizabeth Bishop 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.