Industrial Relations Commission of New South Wales CITATION: Herskind-Nielsen and Ansdale Pty Ltd t.as Visual Mathematics. [2006] NSWIRComm 1044 APPLICANT: PARTIES: Ms. Ayla Herskind-Nielsen RESPONDENT: Visual Mathematics FILE NUMBER(S): 4092 of 2005 CORAM: Ritchie C Unfair dismissal application made by overseas student working in Australia-application 18 days out of time. Claim by applicant in shock as a consequence of the assault; unaware of industrial laws in Australia. -claim by applicant of assault by respondent that resulted in a termination taking place-denied by respondent. CATCHWORDS: claim by respondent that applicant resigned of own accord Out of time accepted by Commission-. Commission found based on evidence presented that assault by respondent did occur and that a termination by the respondent did take place. Found that termination was harsh; unjust and unreasonable. Compensation awarded. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Jones v Dunkel (1959) 101CLR 298 HEARING DATES: 20/02/06 DATE OF JUDGMENT: 03/14/2006 APPLICANT: Mr P.Phan (solicitor) LEGAL REPRESENTATIVES: RESPONDENT: Mr. R. Henricus DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 14 March 2006 Matter No IRC 4092 of 2005 IN THE MATTER OF: Ayla Herskind-Nielsen and Visual Mathematics. Application by Ayla Herskind-Nielsen re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2006] NSWIRComm 1044 1 This matter involves a claim for unfair dismissal. The claim was filed by Ms. Ayla Herskind-Nielsen (the applicant) on 8 August 2005 and named the respondent employer as Visual Mathematics. From correspondence it would seem that Visual Mathematics is the trading name of Ansdale Pty Ltd. 2 Following unsuccessful conciliation the matter proceeded to arbitration on 20 February 2006. 3 Mr. Phan (solicitor) represented the applicant and Mr. Henricus (Managing Director) represented the respondent. 4 On the day of the hearing Mr. Phan sought to cross- examine Ms. Morton and Ms. Hawkless. Neither were in court as the respondent had not been given appropriate notice by Mr. Phan of his intention. A letter sent by Mr. Phan of his intention to cross examine had been directed to the respondent on the previous working day to the hearing, but Mr. Henricus claimed he had not received the correspondence. The reason for this lack of appropriate notice was a consequence of an internal resignation within Mr. Phan's office. Mr. Phan stated he would allow their written evidence to be admitted without objection. The Applicant's Case. 5 It was the applicant's evidence that she had first come to Australia from her native Denmark in 2003 on a work and holiday visa. In April 2004 she first worked for the respondent on a casual basis working some eight days. In November 2004 she left Australia and returned to Denmark. In January 2005 she returned to Australia to commence a course in Diploma of Arts at Macquarie University. 6 On her return to Sydney she contacted the respondent seeking work and spoke to Mr. Richard Henricus. Later she met with Mr. Henricus and his wife Caroline Hawkless at the respondent's office. At that meeting she was offered a job selling the respondent's product. Also at that meeting she stated that she needed $7500 urgently to pay her university fees. Mr. Henricus agreed to lend her the money. She stated that it was agreed that when she sold a product 80% of the sale price would be credited against her debt. This agreement was denied by Mr. Henricus. She stated that she commenced with the respondent on 25 January 2005 and was paid $500 per week. 7 She stated that around 11 March 2005 whilst on the University campus she had a conversation with an unnamed Immigration Officer. She advised the Commission that she was given certain assurances with respect to obtaining a student visa and then applying for a work visa. 8 On or about March 2005 she alleged that she was told by Mr. Henricus that she had paid off her debt. He also was alleged to have stated that he would repeat the practice of paying for her university fees in the future if required. 9 She received $500 per week notwithstanding the number of appointments she attended. During her employment she took two days sick leave and was paid for same. 10 On or around 21 June 2005 she met with Mr. Henricus and advised she wished to quit her job. Mr. Henricus started to scream at her until his wife Caroline Hawkless came into the room and calmed him down. She was convinced to stay. 11 On 29 June 2005 she again met with Mr. Henricus and was advised that he was considering her in six months time, to lead her own team. 12 On 30 June 2005 she had another conversation with Mr. Henricus in his office concerning a customer complaint. The issue was that the applicant had left the customers house prior to the customer coming home. A discussion ensured resulting in Mr. Henricus stating that he could not continue to manage her and that other named people would do it. The applicant then went to leave the office. She stated that "whatever she did was wrong". Mr. Henricus told her not to yell at him. Mr. Henricus walked up to her until he was ten centimetres away still yelling. She stated that Mr. Henricus pushed her towards a chair where she landed on its arm rest and hurt her back and kept yelling at her. At that point Caroline Hawkless came out of the office yelling at her husband to stop. Mr. Henricus continued to yell at the applicant and said words to the effect: "See she can't even handle that, little bitch." 13 The applicant did not strike or attempt to strike Mr. Henricus. 14 When the applicant got up off the chair to leave the office, Mr. Henricus grabbed her by her collar and her hair and threw her down on the floor half way out of the office door. She went out into the hallway and collapsed. Ms. Kerrie Morton the respondent's Office Manager came out to the hallway and asked if she was okay ? A woman from Edge Recruitment Agency came out and asked if she should call a security guard. Kerri said there was no need. 15 The applicant phoned her boyfriend who told her to call the Police and report the incident. The applicant then left the building. Later Kerri Morton came down stairs and spoke with the applicant. After about five to ten minutes the Police arrived and spoke with the applicant. They then went inside the building. When the Police came outside one of the officers Michelle Craig said to the applicant, that she had been fired and that she had refused to leave the office so Mr. Henricus had to help me out of the office. 16 The applicant stated that she applied for various jobs and finally commenced a new job on 22 August working 20 hours a week at $22 per hour. She also made various attempts to ascertain the name of the Immigration Officer but had been unsuccessful. 17 In giving evidence the applicant stated that she had never seen an appointment letter (Ex A, annexure A) that set out her terms of employment. She maintained that her university fees paid by the respondent ($7552) would be paid back by the sales she made at her job with the respondent. 18 She admitted that when she commenced employment in February 2005 with the respondent, she did not have a visa to work in Australia. 19 The Commission never saw any evidence that allowed the applicant to work whilst in Australia. 20 She also admitted that she did not provide the respondent with a completed tax form or file number even when asked by the respondent. She had just forgotten. She stated that she did not resign on 30 June 2005. She did not agree with the statutory declarations presented by the respondent stating that she had quit her job. She stated that both herself and Mr. Henricus raised their voices before Mr. Henricus told her to: " Get the fuck out of my office." 21 She then described how Mr. Henricus continued the argument in the reception area and at one stage being only ten centimetres from her face. She stated that he pushed her backwards hitting the arm of a chair, hurting her back. As she sought to grab her things she said that Mr. Henricus grabbed her at the back of her collar and threw her out of the office. 22 A couple of days later she attended a doctor as a consequence of a sore back and also a chiropractor. No evidence of such visits was provided to the Commission. 23 She stated that she was highly agitated as a consequence of what had occurred. She was in shock and did not know what to do. Finally she sought assistance from the Universities Legal Aid section, who advised her to see her present legal representative and an unfair dismissal application was made on 8 August 2005, some 18 days out of time. Mr. Phan argued that prejudice to the respondent would only be slight, she was an overseas student not conversant in Australian industrial law and the Commission should exercise its discretion and allow the application to proceed. 24 Mr. Phan stated that the issue with respect to not having a work visa at the time of employment was not relevant in this matter. Whilst she believed that she was a part time employee, even if that was wrong and she was a casual employee she still had a right to bring her claim before this Commission. Her letter of appointment envisaged a twelve month period of employment. It was accepted by Mr. Phan that the onus rested on the applicant to prove that a termination by the respondent did take place. 25 The respondent's evidence included a very brief statutory declaration by Mr. Richard Henricus, Ms.Kerri Morton and Ms. Caroline Hawkless stating that the applicant was heard to say on 30 June 2005 that she quit (her job). In what state of mind the applicant was in at the time and or when it was stated before or after the assault was not expressed by their evidence. Mr. Phan therefore stated that the Jones v Dunkil inference should be accepted. 26 The applicant stated that she was successful in obtaining new employment on the same rate of pay commencing on 22 August 2005. 27 Mr. Phan stated that the applicant sought 25 ½ weeks compensation. That amounted to the total of the period of employment plus the period of unemployment. The Respondent's Case. 28 Mr. Henricus, the Managing Director of the respondent stated that he had employed the applicant on a casual basis to commence on 23 February 2005, and had agreed to pay her university fees of $7552. He handed the applicant her letter of appointment dated 24 February 2005. The letter stated the usual matters but also included a paragraph that the respondent will pay the applicant's university fees on the basis of twelve months employment. If the applicant cancelled her contract within the twelve months then the amount is non refundable. There was no mention in the letter of employment of the applicant's version of how the debt would be paid back. 29 Mr. Henricus filed a statement attached to which were statutory declarations signed by himself, his wife (Ms. Hawkless) and Ms. Morton. His statutory declaration stated On 30 June 2005 heard Ayla Herskind say to me "I quit". 30 In evidence Mr. Henricus stated that at the meeting on 30 June 2005 he had only wished to speak to the applicant about a customer complaint. She was also told to bring her personal tax information and evidence of her right to work in Australia. At the meeting the applicant became angry and resigned. This time her resignation was accepted. She then was told that she had to repay the sum of $7552. She became aggressive and abusive towards Mr. Henricus and was asked to leave the office. She walked out into the reception area where Ms. Morton was. She continued to argue with Mr. Henricus. Ms. Hawkless was also in the area. The applicant then left the office. 31 Mr. Henricus denied pushing and or throwing the applicant out of the office. In the reception area the applicant was on one side of the reception desk and he and Ms. Morton were on the other. No physical or verbal assault took place. 32 He stated that he phoned the Police as the applicant was extremely agitated and he was concerned about her capabilities to drive. 33 Action has been commenced by Mr. Henicus in the Local Court against the applicant seeking repayment of the debt. 34 The statutory declaration of Kerrie Morton stated in full: On 30 June 2005 Ayla Herskind quit Visual Mathematics by saying "I quit". 35 The statutory declaration of Caroline Hawkless stated in full: On 30 June 2005 I did hear and observe Ayla Rica Herskind-Neilsen resign from Visual Mathematics by saying "I quit" and leaving the middle of a meeting. Consideration and Decision. 36 In my view the first determination to be made must be whether the out of time claim be accepted. 37 The Industrial Relations Act 1996 s.85 requires applications to be filed no later than 21 days after the dismissal of the employee. S. 85(3) allows the Commission to accept an application if filed out of time, if the Commission considers there is sufficient reason to do so having regard to particular expressed criteria. 38 The applicant ceased employment on 30 June 2005 and filed an unfair dismissal claim on 8 August 2005 thereby being 18 days late in filing. In her application she stated the reasons for late filing being : 1. Attend University 2. Required legal aid assistance from Macquarie University Union. Time spent on application and approval process for legal aid. 3. Unable to leave the house alone due to fear as a result of the incident on 30 June 2005 39 The respondent in his Employers Reply objected to the late lodgement. 40 The Commission's power to accept an out of time application is discretionary, with the onus resting on the applicant to convince the Commission of a "sufficient reason" to accept an out of time application. 41 In evidence that applicant stated that she wasn't attending university. She did not know what to do as she was in shock. Mr. Phan for the applicant stated in part that the applicant being an overseas student was not aware of Australian industrial law. Eventually through the university that she attended, she was directed to Mr. Phan who filed a claim on her behalf. 42 Taking into consideration the reasons for not filing in time, the high degree of hardship to the applicant if the claim was not allowed and the rather short period of delay, I believe it is appropriate for this Commission to allow this application to be accepted and for the applicant's claim to be considered. 43 The next issue for consideration is whether a termination at the instigation of the respondent occurred. The applicant stated that as a consequence of the physical actions and comments made by Mr. Henricus on 30 June 2005, it was her view that he terminated her. The respondent stated that the applicant resigned from the respondent by stating that she quit. 44 To determine whether a termination at the instigation of the respondent occurred one has to consider what evidence was placed before the Commission. From the applicant's submission she was both verbally and physically attacked by Mr. Henricus. From her original unfair dismissal application this had been her submission. Her filed witness statement described in detail what physical actions Mr. Henricus had taken against her. Questions from the Commission did no more than clarify in more detail what the applicant alleged occurred on 30 June in the respondent's offices. 45 Mr. Henricus in his statement denied the applicant's accusations. Mr. Henricus did not ask the applicant one question in cross- examination about the alleged assault. Not only did Mr. Henricus not cross-examine the applicant about this vital allegation, he brought no independent evidence before this Commission from either Ms.Hawkless or Ms. Morton who were allegedly in the office at the time to substantiate his story that no attack by him on the applicant took place. Under questioning from the Commission as to why Ms. Hawkless and Ms. Morton did not give evidence on the alleged assault and the inference raised by Mr. Phan as to why they did not, Mr. Henricus replied: Because we didn't wish to want to entertain the fact, Commissioner, that there was an assault, because nothing happened. 46 It is my finding based on the evidence that came before me and on the balance of probability that the assault as described by the applicant did take place and therefore there was a termination at the instigation of the respondent. I should add here that whilst Mr. Henricus may well have been very frustrated at the attitude and comments of the applicant on 30 June, and taking into consideration his very generous action with respect to the paying at short notice of the applicant's university fees, it does not in any way excuse him from the inappropriate actions that I found he took on that day. 47 The respondent had envisaged the applicant working for the respondent for twelve months. The applicant had sought to resign on 21 June 2005 but had been talked out of it. The respondent had called the applicant into the office on 30 June as a consequence of a customer complaint and to bring with her particular information and documents. The applicant had been asked on a number of occasions to supply the respondent with tax and visa details. She did not comply as she either forgot or such details were not in her possession. At the meeting on 30 June (prior to the altercation) both parties were in disagreement and it is my view that I do not believe that the employment contract would have continued much longer. 48 The applicant stated that she was paid commission on top of her weekly $500 and provided one pay slip dated 16 June 2005. That slip showed a payment of commission of $200. Mr. Henricus stated that the $200 was for a payment for a car expense and not for commission. An examination of the applicant's bank account showed no deposit for the $200. I therefore accept the submission of Mr. Henricus that the applicant did not receive commission. 49 Mr. Phan on behalf of the applicant had sought a near maximum monetary order based on the length of service of the applicant plus the period of time that she was unemployed. Such a claim can not by law be granted. I note that there was disagreement between the parties as to the actual date that the applicant commenced employment. I also note that the applicant found alternative employment with similar remuneration some seven weeks after her termination. 50 The statutory declarations filed by Mr. Henricus, Ms. Hawkless and Ms. Morton stating that the applicant had quit on 30 June 2005, I find to be so brief and so lacking in detail as to be nearly worthless as evidence. What the statutory declarations did not state was when did the applicant state that she quit (i.e. before or after the assault), what was the emotional state of the applicant at the time of this utterance and therefore in what context was it given ? 51 I find that the actions of the respondent on 30 June 2005 which resulted in the termination of the applicant harsh, unjust and unreasonable. 52 As a consequence I make the following Order under s.89 (5) of the Industrial Relations Act. ORDER 1. That the respondent Ansdale Pty Ltd trading as Visual Mathematics pay to the applicant Ms. Ayla Herskind-Nielsen the sum of $5000. 2. Such payment must be made to the applicant within 21 days of the date of this Decision. 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.