Industrial Relations Commission of New South Wales CITATION: Wilkes v ARC Enterprises Pty Ltd trading as Gosford Photographics [2006] NSWIRComm 1104 APPLICANT Michelle Cecily Wilkes PARTIES: RESPONDENT ARC Enterprises Pty Ltd t/as Gosford Photographics FILE NUMBER(S): 714 of 2006 CORAM: McLeay C CATCHWORDS: Unfair dismissal - sales assistant - casual employee - conflict of interest - attitude to work - whether there was a dismissal - no reasons given - no opportunity to respond - dismissal harsh - compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/as Dymocks Parramatta [2001] NSWIRComm 46 CASES CITED: Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 Donovan and Anor v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385 HEARING DATES: 22/06/06 DATE OF JUDGMENT: 07/04/2006 EXTEMPORE JUDGMENT DATE : 06/22/2006 APPLICANT Mr De Meyrick of counsel Solicitor: Mr S Butcher LEGAL REPRESENTATIVES: Law Partners RESPONDENT Mr A Curtis, husband of Director DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 22 June 2006 Matter No IRC 714 of 2006 Michelle Cecily Wilkes and ARC Enterprises Pty Ltd t/as Gosford Photographics Application by Michelle Cecily Wilkes re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1104 1 This is an application by Michelle Cecily Wilkes ("the applicant") re unfair dismissal against ARC Enterprises Pty Ltd t/as Gosford Photographics ("the respondent") pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Ms Wilkes was dismissed from the position of sales assistant at a photo lab on 31 January 2006, having been employed by the respondent since June 2004. Casual employment 2 The applicant was employed on a casual basis. The records provided in evidence by the respondent showed that the number of hours worked varied from week to week. Although there were times, such as from 4 July to 12 September 2004, when the number of hours worked was consistent each week, there were other periods when the hours varied in accordance with the usual pattern of casual employees. The applicant admitted that her hours of work fluctuated 'more than occasionally'. 3 The records showed that Ms Wilkes worked consistently for eight hours from 9am to 5.30pm every Monday except public holidays, from June 2004 through to January 2006. She also worked every Thursday for at least four hours during the same period. This shows that the applicant was engaged on a regular and systematic basis for a period in excess of six months, with additional days and/or hours as and when required. 4 Pursuant to s 83(2), certain employees, including employees engaged on a casual basis for a short period, are exempt by regulations from the unfair dismissal provisions of the Act. The relevant part of regulation 6 reads as follows: (1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: ... (d) employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer. 5 In Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Ltd t/as Dymocks Parramatta [2001] NSWIRComm 46, the Full Bench found that a casual employee is saved from the exemption if that employee satisfies both sub-paragraphs (i) and (ii) above. They stated further: Whether any particular period of employment is within the statutory phrase of "a short period" is, of course, a mixed question of law and fact to be determined in all the circumstances of a case arising: see NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512. 6 In the present case, the applicant was engaged on a regular and systematic basis for a period in excess of six months, as noted. I am satisfied that the period of her employment was not "a short period" for the purpose of s 83(2). Further, I am satisfied that she had a reasonable expectation of continuing employment based on the regularity of her pattern of employment and the lack of warnings about her performance or conduct. In short, the application is not exempt from the jurisdiction of the Commission because of the casual nature of the employment. Number of hours worked 7 Ms Wilkes' evidence about her hours of work is inconsistent with the records provided by the respondent. For example, Ms Wilkes said that after she was spoken to about the conflict of interest, her hours reduced to 12 hours per week, while the records showed that they were reduced on some weeks and increased on others. The reduction generally around that time occurred when Ms Wilkes did not work on the Saturday, as well as the usual fluctuation due to public holidays. Ms Curtis freely admitted that she herself worked on a number of Saturdays in place of Ms Wilkes, in order to minimise costs to the business due to applicable penalty rates. However, this followed Ms Wilkes making herself unavailable on a Saturday when she wanted to attend a friend's wedding. 8 Ms Wilkes had claimed that her previous employment had been part-time, but conceded in cross-examination that it was casual. She also admitted that she had not worked 20 hours per week as stated in her written evidence, despite having been provided with regular pay slips identifying the number of hours worked. Ms Wilkes said she had included her meal breaks in her calculation of hours worked. 9 Whilst Ms Wilkes acknowledged that she had erred in the assessment of her hours, it is not likely that Ms Curtis would have made the same error. It follows that Ms Wilkes' statement that she had been promised 20 hours per week by Ms Curtis is not credible. 10 In her statement of evidence, Ms Wilkes wrote: Further, and in addition, I submit that the gradual reduction in my working hours over the course of my employment was unfair in the circumstances and I would seek that the Commission remedy that unfairness by awarding compensation as it sees fit. 11 As I have said, the records did not show a clear reduction in hours. Rather, they show that, apart from the regular pattern of Monday and Thursday work, the hours worked by the applicant fell into the pattern of "as and when required". Over time, there was a reduction in hours. The summary provided by the respondent showed the average hours worked over the applicant's total period of employment was 17.41 hours; over the last six months the average was 15.21 hours; over the last three months the average was 12.5 hours. I am satisfied that this gradual reduction is consistent with the needs of the business, as was the variation from week to week, in accordance with Ms Curtis' evidence. Thus, the reduction in hours was not unfair. 12 It is not available to me to compensate for a gradual reduction in hours, even if such a reduction was unfair. The claim presently before me is for unfair dismissal pursuant to s 84, which states relevantly: (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. It follows that there must be a dismissal for the Commission to have jurisdiction. Further, the Commission cannot intervene unless the dismissal is found to be harsh, unreasonable or unjust. Was there a dismissal? 13 Ms Wilkes understood that she was dismissed from her position with the respondent following a conversation between herself and Ms Curtis, the Director of the respondent company, on 31 January 2006. A witness to the conversation, Joycelyn Ashworth, gave evidence that she understood Ms Wilkes was dismissed by Ms Curtis. 14 Ms Curtis' account of the conversation varied from that of Ms Wilkes and Ms Ashworth, in that Ms Curtis said she had taken the applicant off the roster for a week. Ms Curtis said she had not intended to give Ms Wilkes work in the future. Ms Wilkes' version of the words used were confirmed by Ms Ashworth. I accept that the conversation may have been ambiguous up to a point. However, that point was reached when Ms Curtis did not respond to Ms Wilkes' challenge that "you have finally found an excuse to get rid of me". Ms Curtis acknowledged during cross-examination that by the end of the conversation she understood that Ms Wilkes believed she had been dismissed, and that after the conversation Ms Curtis had no intention of giving Ms Wilkes any further work. 15 It is well settled that failure to give an established casual employee any further work constitutes a dismissal: Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385. 16 Regardless of Ms Curtis' intention before this conversation, I am satisfied that, by removing the applicant from the roster after over eighteen months of continuous work, with no intention of providing any work in the future, the applicant was dismissed. Termination of the employment 17 On about 28 September 2005, Ms Wilkes commenced working a second job on her days off, in order to supplement the income she received from the respondent. The position was at Instant Colour, a shop about four doors along from the respondent's business. While Ms Wilkes claimed it was different work, Ms Curtis told her on 13 October that she could not work at both jobs due to a conflict of interest. I am satisfied that Instant Colour was a direct competitor to the respondent, supported by the applicant's evidence that both businesses scanned and copied photos, cropped and enlarged photos, took passport photos and sold frames and albums. 18 Despite being told, appropriately in my view, that she had a conflict of interest by working in both shops, Ms Wilkes then increased her hours of work at Instant Colour by working on a Saturday when Ms Curtis was going to work in the respondent's business. 19 On 13 January Ms Curtis told Ms Wilkes that she would no longer be required to work on Mondays, because another employee would do those hours. Ms Wilkes had worked eight hours every Monday (except public holidays) throughout her employment. The reasons given in evidence were that: the other employee could print photos which Ms Wilkes could not do, despite various attempts by the respondent to train her in this aspect of the work; the business was in danger of losing custom to Instant Colour if they could not print on Mondays when only one staff member was required; the respondent wished to retain the other employee because of her valued printing skills, after she had been employed to assist during the busy Christmas period. However, none of these reasons were provided to the applicant at the time. 20 The conversation during which Ms Wilkes was dismissed took place in the premises of Instant Colour when Ms Wilkes was working there. No matter the reason, it cannot be said that it is appropriate to conduct any staff business in the premises of a competitor; nor was it appropriate to conduct staffing matters at a place where the employee holds a second job. 21 Lorene Thompson and Carolynne Murphy gave evidence about Ms Wilkes' attitude to customers at work. References provided to Ms Wilkes by each of these witnesses were also provided in evidence. The reference provided by Ms Murphy was so contradictory when compared with her statement of evidence, that I must disregard her evidence. I find that Ms Thompson's carefully worded reference was not inconsistent with her evidence to a sufficient degree to cause me concern about the credibility of her evidence. I accept Ms Thompson's evidence. 22 Taking into account Ms Wilkes' own evidence about 'run-ins' with customers together with Ms Thompson's evidence, I am satisfied that Ms Wilkes did express what may be called an attitude problem from time to time. However, this was not an issue raised with her by her employer. Indeed, no issues related to her performance or conduct were raised with her that would have led her to believe that her job was in jeopardy. 23 A further issue of concern is that Ms Wilkes was given no notice, or payment in lieu of notice, at the time of her dismissal. After 18 months continuous work, it was unreasonable not to give her any notice that her employment was at an end: Donovan and Anor v Kensington Pharmacy and Newsagency [2004] NSWIRComm 385. 24 For all these reasons, I find that the applicant's dismissal was procedurally unfair, in that the lack of sufficient reasons for dismissal, the lack of prior warning and the particular circumstances of the dismissal were harsh and unreasonable. However, the respondent had sound reason to dismiss the applicant because of a combination of factors: there was less work available than in the past since the respondent had employed an experienced printer and wanted to keep her and since Ms Curtis herself commenced working on Saturdays; Ms Wilkes refused to acknowledge her employer's concern about a conflict of interest arising from a second job; Ms Wilkes expressed her discontent at work to other staff and to customers. 25 As to remedy, I find that reinstatement or re-employment would be impracticable because of the lack of available work and the size of the business. In assessing compensation, I note that the applicant gave evidence that she has unsuccessfully sought work since her dismissal. As to the amount of average weekly earnings, I do not accept the figure of $345.03 set out in the application because it is not consistent with the evidence. On the basis of an average of 15.21 hours worked over the six months prior to the dismissal, including four hours at the Saturday rate, I calculate the average weekly wage as being approximately $265.00. On this basis I make the following orders. ORDERS 1 I order the respondent ARC Enterprises Pty Ltd t/as Gosford Photographics to pay to the applicant Michelle Cecily Wilkes the sum of $795.00, being approximately three weeks pay. 2 The amount set out in Order 1 is to be paid within 21 days of today's date, being 22 June 2006. _________________________ 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.