AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment
Katherine Sykes
and
Heatly Pty Ltd t/as Heatly Sports
(U2001/6140)
COMMISSIONER GRAINGER |
MELBOURNE, 6 FEBRUARY 2002 |
Termination of employment.
DECISION
Introduction
[1] This matter relates to an application by Mrs Katherine Sykes (Mrs Sykes, the applicant) pursuant to Section 170CE of the Workplace Relations Act 1996 (the Act) for relief in respect of the alleged unlawful termination of her employment by Heatly Pty Ltd trading as Heatly Sports (Heatly, the respondent). In accordance with the Act the matter was referred to Mr R. McIntyre for conciliation. This conciliation took place in Melbourne on Thursday 11 October 2001. On 19 October 2001 Senior Deputy President Williams issued a certificate pursuant to s.170CF(2) of the Act in respect of this matter. The applicant lodged an election to proceed to arbitration on 19 October 2001. On 20 November 2001 the Commission notified the applicant and the respondent of the listing of this matter for hearing on Tuesday 29 January 2002 and issued directions to the applicant and the respondent requiring the lodging of outlines of submissions, documentary material relied on and witness statements by Monday 3 December 2001 in respect of the applicant and Monday 17 December 2001 in respect of the respondent. On 20 December 2001 the respondent executed a deed of company arrangement (the deed of arrangement) with its creditors appointing O'Keeffe Walton Richwol as administrators under the deed of arrangement (see Exhibit A9). On 24 January 2002 O'Keeffe Walton Richwol wrote to the Commission stating that "in order to limit my costs in this administration and thus maximise funds available to creditors, I do not propose to attend the arbitration scheduled for 29 January 2002". At 9.30am on Tuesday 29 January 2002 my Associate, Mr Cameron Forbes both telephoned and faxed the office of O'Keeffe Walton Richwol and Mr Neil Mahony of Heatly (Mr Mahony) and informed them that if no representative of the respondent attended the hearing of this matter on 29 January 2002 the Commission would proceed to deal with this matter in the absence of the respondent upon the basis of the material placed before it in response to directions and at the hearing. Both O'Keeffe Walton Richwol and Mr Mahony confirmed that the respondent would not be represented at the hearing. The respondent at no stage complied with the directions of the Commission of 20 November 2001. The applicant was represented at the hearing on 29 January 2002 by Ms S. Caylock and the respondent made no appearance at the hearing. I am satisfied that the requirements of s.170CG(1) have been met and I may proceed to arbitrate this matter.
The facts
[2] The applicant was born on 22 October 1966. For two years prior to December 2000 Mrs Sykes had owned her own clothing company called CKC which she owned in association with a business partner (PN52). Prior to December 2000 Mrs Sykes and her business partner decided to close that business and she thereafter commenced seeking employment in the garment production industry (PN54). On 23 December 2000 Mrs Sykes commenced employment with Heatly at Thomastown as production manager to be responsible for managing the coordination of all aspects of producing externally produced garments (Exhibit A2 paragraphs 1 and 3). She moved from Hastings to Fitzroy in order to be closer to her new place of work at Thomastown (PN56). While Mrs Sykes was to report to Mr Kevin Davey (Mr Davey) she had during the whole period of her employment at Heatly a close interaction with Mr Mahony, the managing director of Heatly.
[3] In or about February 2001 Mrs Sykes received a pay rise which increased her salary to $45,000 per annum (Exhibit A2 paragraph 9).
[4] Throughout the period of the applicant's employment with Heatly the applicant felt that she was subjected to "constant verbal bullying and abuse from Neil Mahony" (Exhibit A2 paragraph 10). On or about Monday 27 August 2001 the applicant attended her doctor as she was feeling physically sick as a result of the stress that she was feeling at work (Exhibit A2 paragraph 14).
[5] On Monday 3 September 2001 the applicant did not come to work due to stress arising from her work (Exhibit A2 paragraph 17). She did, however, go to see her doctor and had lunch at a restaurant in Lygon Street Carlton close to her home in North Fitzroy (PN83). On that day she made approximately 12 business-related phone calls on her work mobile telephone including to Mr Bob Lee, managing director of a company called Simpsons (PN84).
[6] On Tuesday 4 September 2001 the applicant came to work at Heatly and was immediately summoned into Mr Mahony's office where Mr Mahony accused her of making a reverse charge call the previous day on the company's mobile telephone and asserting that the reverse charge call was made from a country location to a client (Exhibit A2 paragraph 19 and PN87). The applicant denied that this was the case and invited Mr Mahony to verify the facts which he was asserting (Exhibit A2 paragraph 20). Mr Mahony said to the applicant "just tell me where you were. You're lying." (Exhibit A2 paragraph 20).
[7] The applicant left Mr Mahony's office, went to her own office, attended to some business matters, collected some personal items, spoke to several members of staff at Heatly about production-related matters and then proceeded to leave the premises and walk to the company car park (PN100). Mr Mahony followed her into the car park, grabbed her hand, and took the keys to her company car from her (PN100). She took keys back from him and said to Mr Mahony "you don't get the keys until I no longer work for you" (PN102). Mr Mahony then said to her "I give you one week's notice" (PN102). The applicant then said to Mr Mahony "I will return the car in a week" (PN103). She proceeded to leave the Heatly car park in her company car (PN104). Heatly arranged for the disconnection of her company mobile telephone within ten minutes of that conversation and she returned the company car to Heatly three days later (PN105). On 5 September 2001 the applicant received one week's pay in lieu of notice paid into her bank account by electronic transfer (see Exhibit A7). The applicant has still not been provided with a separation certificate by Heatly and she has still not received certain superannuation entitlements which the company was statutorily obliged to pay.
[8] The applicant subsequently sought other employment and on 4 December 2001 obtained employment with a company called IMC. This venture earned the applicant approximately $800 per week for six weeks but was unsuccessful and she withdrew from her involvement in it during January 2002 (PN40-42). The applicant has since attended at least 12 interviews for employment but has not yet succeeded in obtaining further employment (PN46).
The applicant's submissions
[9] The applicant submitted (see Exhibit A1) that the termination of her employment was harsh, unjust and unreasonable because: --
1. The respondent did not have a valid reason to terminate the applicant's employment in accordance with s.170CE and s.170CG(3) and of the Workplace Relations Act 1996 in relation to her conduct as she was not guilty of the accusation made against her, namely, that she had made a reverse charge call to a client from a country location.
2. The applicant denies the accusation. She offered the respondent an explanation for what had occurred to the effect that she had telephoned the client via a call connect service. Furthermore, the call was not made from a country location, as claimed by the respondent.
3. The capricious manner in which the respondent dismissed the applicant demonstrates that the decision to dismiss the applicant was neither sound, defensible nor well founded, and that it was clearly reached in the absence of any consideration of the respondent's requisite obligation to act in good faith.
4. In any event, in seeking to rely on the accusation of misconduct made against the applicant as the basis for her dismissal, the gravity of the alleged conduct did not warrant the disproportionate and excessive punishment of termination.
5. The respondent denied the applicant procedural fairness by failing to give her a genuine and adequate opportunity to respond to the reason for termination; failing to make adequate enquiries in light of the applicant's denial of the allegation by way of checking the company's telephone records as well as contacting the client concerned.
6. The manner in which the applicant was dismissed was unduly crude and harsh, and the general conduct of the respondent at the time of termination was unacceptable. The respondent followed the applicant into the car park and attempted to snatch the car keys from her possession. The applicant was then dismissed on the spot in the presence of other staff members. The applicant was denied a "fair go all round".
[10] The applicant through her solicitor further submitted at the hearing that:-
1. The applicant had made every effort to mitigate her situation through seeking other employment and that the respondent should be required to pay the applicant six months salary as compensation.
2. Notwithstanding the appointment of an administrator for the respondent and the entering into of the deed of arrangement the respondent had sufficient viability to pay this compensation to the applicant.
The respondent's submissions
[11] Whilst the respondent did not respond to the Commission's directions and failed to attend the hearing on 29 January 2002 the Commission takes note of the following information available to the Commission from the respondent: --
1. The termination statement issued by Mr Mahony to the applicant (Exhibit A8) which states that the reason for dismissal was "unacceptable behaviour".
2. The respondent's Form R21 received by the Commission on 28 September 2001 which states at paragraph 15 that the reason for termination was "misconduct - repudiation of applicant's contract of employment".
The first issue - s.170CE(1)(a) and s.170CG(3)(a) - whether termination harsh, unjust and unreasonable and whether valid reasons
[12] S.170CE(1)(a) provides that an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment on the ground that the termination was harsh, unjust, or unreasonable. In Byrne and Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 465 McHugh and Gummow JJ said in relation to the predecessor of this provision that:
"It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
Their Honours went on at 468 to say that
"Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable."
[13] Drawing on these remarks in B. Rose v Telstra Corporation Ltd (Dec 1444/98N Print Q9292) Ross VP at page 8 found that a termination of employment may be:
· harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct
· unjust, because the employee was not guilty of the misconduct on which the employer acted; and or
· unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer
While the preceding may be seen as providing examples of conduct coming within each of these three categories of termination, the Macquarie Dictionary 3rd Edition gives the following relevant definitions of these three terms:
· harsh - 1. ungentle and unpleasant in action or effect
2. rough to the touch or to any of the senses
· unjust - 1. not just; not acting justly or fairly, as persons
2. not in accordance with justness or fairness, as actions
· unreasonable - 1. not reasonable; not endowed with reason
2. not guided by reason or good sense
3. not agreeable to or willing to listen to reason
4. not based on or in accordance with reason or sound judgment
It is clear from the wording for s.170CE(1)(a) and from the above remarks of McHugh and Gummow JJ that only one of these three terms needs to be satisfied in order for the interest of the Commission to be sought and activated in respect of a termination of employment.
[14] Section 170CA(2) provides that "the procedures and remedies [to be applied under Division 3 of Part VIA of the Workplace Relations Act 1996] and the manner of deciding on and working out such remedies, are intended to ensure that, in the consideration of an application in respect of termination of employment, a "fair go all round" is accorded to both the employer and employee concerned."
It is clear from the wording of this provision and from the Explanatory Memorandum to the Act that it is the legislature's intention which is being referred to in this section, and that it is the intention of the legislature to ensure that the objective in unfair dismissal cases in Division 3 Part VI A of the Workplace Relations Act 1996 "is to provide industrial justice by giving due weight to:
· the importance but not inviolability of the right of an employer to manage the employer's business;
· the nature and quality of the work in question;
· the circumstances surrounding the dismissal; and
· the likely practical outcome if an order is made."
Section 170CA(2) provides guidance to the Commission in carrying out its duties under Division 3 on the precise aims which Parliament had in putting Division 3 in place. It therefore helps provide a framework which informs the Commission on its role and processes under Division 3.
[15] More precise guidance is provided to the Commission on its role in respect of applications to it under s.170CE(1)(a) which come to it for arbitration by the provisions of s.170CG(3) which states that:
In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee-whether the employee had been warned about that unsatisfactory performance before the termination; and
(da) the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(db) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(e) any other matters that the Commission considers relevant.
The original Explanatory Memorandum relative to the 2001 amendments to s.170CG inserting subsections (da) and (db) provides:
47. Item 26 proposes to add to the matters to which the Commission must have regard in determining whether a termination was harsh, unjust or unreasonable. In addition to the other matters listed in subsection 170CG(3), the Commission would also be required to have regard to the degree to which the size of the employer's undertaking, establishment or service would be likely to have on the procedures followed in effecting the termination.
48. For example, where a respondent employer is a business which is too small to have a separate human resources function, the Commission would be required to take that fact into account when considering the extent (if any) to which the procedures followed in effecting the termination have bearing on the issue of whether the employee's termination was harsh, unjust or unreasonable.
The Explanatory Memorandum to the Act at paragraph 7.44 makes clear that
Affording employees procedural fairness in relation to a termination will be relevant in establishing whether or not a termination is harsh, unjust or unreasonable. However, as procedural fairness is to be only one factor to be considered along with other relevant factors, the intention is that undue weight will not be given to procedural defects in a termination.
[16] The first consideration I must therefore examine is whether, within the meaning of s.170CG(3)(a), there was a valid reason for the termination of the applicant's employment by this respondent related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service. The termination statement issued by Mr Mahony to the applicant immediately after the termination stated that the reason for the termination was "unacceptable behaviour". The respondent's Form R21 states that the reason for termination was "misconduct - repudiation of applicant's contract of employment". The respondent chose deliberately to submit no evidence to the Commission in this matter and I find no evidence whatsoever to suggest that the applicant at any time engaged in any conduct or committed any act which could be taken to be "repudiation of the contract of employment". I therefore make no finding in relation to that issue. "Unacceptable behaviour" and "misconduct" are both matters which relate to the conduct of the applicant which bring into play not only the provisions of s.170CG(3)(a) but also the provisions of s.170CG(3)(b), (c) and (d). The only evidence which I have before me is that submitted by the applicant and from that evidence I draw the following conclusion's regarding the termination of the applicant's employment by the respondent:-
(1) Mr Mahony believed that Mrs Sykes had in some way improperly used her company mobile telephone on Monday 3 September 2001 by making a reverse charge telephone call to Mr Bob Lee of Simpsons from a Victorian country location.
(2) Mrs Sykes had at no time been given any guidelines by Heatly regarding the use of her company mobile telephone which would have suggested that using it for the purpose of making a reverse charge a telephone call would constitute either "unacceptable behaviour" or "misconduct".
(3) Mrs Sykes provided a full explanation to the respondent on Tuesday 4 September 2001 regarding the telephone calls which she made from her company mobile phone on 3 September 2001 and requested that the respondent make enquiries to verify the information she provided on that occasion.
(4) the issue of the mobile telephone call on 3 September 2001 was of such a trivial nature that it seems difficult to believe it was the real reason for Mr Mahony's behaviour towards Mrs Sykes on 4 September 2001.
(5) a possible alternative explanation for Mr Mahony's behaviour on that day was that he suspected that Mrs Sykes had gone to the country to attend to her own private business affairs on 3 September 2001 (PN87).
Section 170CG(3)(a) requires both that there must be a valid reason or reasons for the termination and that the reason must be related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service.
In Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, Northrop J held that a valid reason is one that is "sound, defensible or well founded" (at 373) and went on to find that a reason that is capricious, fanciful, spiteful or prejudiced could never be a valid reason. This interpretation was affirmed in Cosco Holdings Pty Ltd v Do (1997) 150 ALR 127, Qantas Airways v Cornwall (1998) 83 IR 102, Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, and Kerr v Jaroma Pty Ltd t/a Treasury Motor Lodge (1996) 70 IR 469.
Decisions of the Australian Industrial Relations Commission have continued to adopt the approach taken in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, applying it to the interpretation of s.170CG(3)(a) of the Workplace Relations Act. See for example, Andrews v Ian Rollo Currie Nursing Home (Old Colonists Society) [Print P0321], Whelan C, and Fetz, Duhigg and Hennessy v Qantas Airways Ltd [Print P6706], Ross VP.
In determining whether, upon the balance of probabilities, there was a valid reason for the termination, the question is whether, upon the information available to the employer, the conclusion reached by the employer was, or was not, a reasonable one, Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, and Australian Meat Holdings Pty Ltd v McLauchlan [Print Q1625], FB (Ross VP, Polites SDP, Hoffman C). The reason must be defensible or justifiable on an objective analysis of the relevant facts, Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, and Kerr v Jaroma Pty Ltd t/a Treasury Motor Lodge (1996) 70 IR 469.
The question is whether a valid reason for the termination exists and is not limited to whether the reason which was given to the applicant was a valid one (Ross VP, Drake SDP and Lawson C, MM Cables (A Division of Metal Manufacturers Limited) v Zammit, Print S8106, 17 July 2000).
In Shorten and Others v Australian Meat Holdings Pty Ltd (1996) 70 IR 360, Ross VP also approved of statements by Lee J in Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370, that the expression "valid reason" in s.170DE(1) of the Industrial Relations Act imposes a requirement that a termination of employment is not unjust or unfair. In this regard, the reason for termination must be considered in the context of the penalty of termination. Such a penalty must be proportionate to the reason relied upon, Abdallah v Merino Gold Ltd (Unreported, Industrial Relations Court of Australia, Parkinson JR, 14 October 1996).
In Kerry v Ansett Australia Limited [Print Q6686], Duncan DP found that a breach of company procedure could give rise to a well founded reason for termination.
I note that it is incumbent on the party which seeks to show a valid reason for the termination to establish this validity, Jobson v Gerrard Strapping Systems [Print P6151], Whelan C. See also Kerr v Jaroma Pty Ltd t/a Treasury Motor Lodge (1996) 70 IR 469.
I make the following findings in relation to whether the termination of the applicant's employment by the respondent in this case was for a valid reason within the meaning of s.170CG(3)(a):-
(1) Mr Mahony's conduct in this matter was capricious, fanciful, spiteful and prejudiced (see Northrop J in Selvachandran v Peteron Plastics Pty Ltd 1995 IRCA 395).
(2) Mr Mahony's reason for terminating the applicants employment was not defensible or justifiable in an objective analysis of the relevant facts (see Nettlefold v Kym Smoker Pty Ltd 1996 IRCA 44).
(3) whether the real reason for the termination was the making of a reverse charge telephone call or using a sick day to attend to private business, there was little or no evidence before the respondent to support the allegations and the applicant strenuously denied them at the meeting on 4 September 2001.
(4) the respondent's actions in terminating the applicant's employment as a result of the subject matter discussed in Mr Mahony's office on 4 September 2001 was grossly disproportionate to any conduct of the applicant and was both unjust and unfair in all the circumstances.
(5) the applicant was denied a "fair go all round" by the respondent within the meaning of s.170CA(2).
(6) the respondent in failing to attend the hearing of this case has failed to satisfy the onus upon it of providing that there was a valid reason for the termination.
(7) the respondent did not have a valid reason to terminate the applicant's employment on or about 4 September 2001.
(8) the respondent's reason for terminating the applicant's employment did relate to an issue or issues concerning her conduct.
The second issue - s.170CG(3)(b) - whether the employee was notified of the valid reason for the termination
[17] Whilst I have found that the respondent did not have a valid reason for the termination of the applicant's employment related to the capacity or conduct of the employee or the operational requirements of the employer's undertaking, establishment or service, I proceed to consider whether the employee was notified of the reason for her termination. At the meeting in Mr Mahony's office on 4 September 2001 Mrs Sykes was accused of misusing her company mobile telephone. She was not dismissed during that interview and was not told at that interview that these accusations would form the basis for the termination of her employment by the respondent. The actual termination of her employment took place in the carpark when, after Mr Mahony had seized the keys to Mrs Sykes' company car, Mr Mahony said to Mrs Sykes "I give you one week's notice". Mr Mahony gave the applicant no reason at that time and subsequently, in the termination statement which he issued, he stated that the reason for termination was "unacceptable behaviour" without specifying what that unacceptable behaviour was. I therefore find that in this case the respondent did not notify the employee of the reason for her termination of employment within the meaning of s.170CG (3)(b) of the Act.
The third issue - s.170CG(3)(c) - whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee
[18] In this case it is clear from the two statements from the respondent about the reasons for the termination of the applicant's employment, "unacceptable behaviour" and "misconduct", that the reason for the termination related to the conduct of Mrs Sykes and accordingly the respondent should have given her an opportunity to respond to any reason related to her conduct before the termination of employment was implemented. At the meeting in Mr Mahony's office on 4 September 2001 Mr Mahony accused the applicant of misusing her company mobile telephone by making a reverse charge telephone call from a country location. To the extent that this was the actual reason for the termination of the applicant's employment, the applicant was given an opportunity to respond before the termination of her employment was implemented. To the extent that this was not the reason for the termination of her employment and the unacceptable behaviour or misconduct referred to by the respondent related to some other conduct of the applicant then there is no evidence that the applicant was either informed of the reason or given an opportunity to respond at any time. It is substantially open to doubt as to whether the respondent did comply with this provision but in any event it is only one of the factors that I must take into consideration in this matter.
The fourth issue - s.170CG(3)(d) - termination related to unsatisfactory performance of the employee - whether the employee had been warned about the unsatisfactory performance before the termination
[19] There is no evidence in this case either adduced by the respondent or arising from the evidence of the applicant which would allow me to reach a conclusion that the applicant had engaged in serious misconduct which would warrant her dismissal without a prior warning. To the extent that the unacceptable behaviour or misconduct referred to by the respondent was either misuse of her company mobile telephone or the misuse of sick leave, this can only be characterised as unsatisfactory performance which would have warranted a warning being given to the applicant by the respondent about those matters before a termination was implemented. There is no evidence before me to indicate that such a warning had been given to the applicant by the respondent in relation to matters of this kind either before 4 September 2001 or at the meeting in Mr Mahony's office on 4 September 2001. Accordingly I find that the applicant had not been warned about any matter of unsatisfactory performance before the termination was effected.
The fifth issue - s.170CG(3)(da) - the degree to which the size of the employer's undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination
[20] Neither the applicant nor the respondent provided any evidence regarding the size of the employer's undertaking, establishment or service, however, I note from the evidence of the applicant that there were three managers of the respondent in Mr Mahony's office for the meeting with the applicant on 4 September 2001 (Exhibit A2 paragraph 18). This would tend to suggest that the respondent had ample resources to expend on the issue of the applicant's conduct in relation to the use of the company's mobile telephone. In any event, whatever the size of the respondent's undertaking, establishment or service I can find nothing whatsoever to justify the behaviour of Mr Mahony in physically assaulting Mrs Sykes in the company car park in order to remove her car keys from her physical possession without him having given any prior indication to her that her employment had been terminated and that she should return those car keys to him. No employer should ever consider that the provisions of s.170CG(3)(da) could be used as a shield behind which to hide when they had engaged in conduct which is improper, belligerent and bullying. Commonsense courtesies of conduct ought to exist in any workplace, whatever the size of the employer's undertaking, establishment or service, and the respondent in this case has clearly not complied with those courtesies. I therefore do not consider that there is any matter in relation to this provision that I should take into account in relation to this case which could be seen to excuse the conduct of the respondent in the implementation of this termination of employment.
The sixth issue - s.170CG(3)(db) - the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination
[21] Neither the applicant nor the respondent provided any evidence regarding the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service of the respondent would be likely to have impacted on the procedures followed in effecting the termination of the applicant's employment by the respondent in this case. Once again as I have said in relation to s.170CG(3)(da), no employer should ever consider that the provisions of s.170CG(3)(db) could be used as a shield behind which to hide when they had engaged in conduct which is improper, belligerent and bullying. Whether a company employs dedicated human resource management specialists or not, any person who employs others to work for their undertaking, establishment or service should extend to those employees an appropriate degree of courtesy even when implementing something as difficult and unpleasant as the termination of a person's employment. In this case, the evidence before me, and which the respondent has declined to make any effort to appear and contradict, is that Mr Mahony used the meeting with the applicant on 4 September 2001 to make certain accusations against her, failed to listen to any response made by the applicant or to seek to verify the version of events which she put, and then pursued her into the company car park where he assaulted her by grabbing her hand and seizing the company car keys from her possession. The managing director of an enterprise such as Heatly should not need the assistance of a specialist human resource manager to tell him that this conduct was inappropriate and unjustified by the circumstances of Mrs Sykes' behaviour. I therefore do not consider that there is any matter in relation to this provision that I should take into account in relation to this case which could be seen to excuse the conduct of the respondent in the implementation of this termination of employment.
The seventh issue - s.170CG(3)(e) - any other matters that the Commission considers relevant
[22] In determining in an arbitration whether the termination was harsh, unjust or unreasonable, the Commission must pursuant to s.170CG(3)(e) have regard to any other matters that the commission considers relevant. In this regard the applicant has submitted that
"the manner in which the applicant was dismissed was unduly crude and harsh, and that the general conduct of the respondent of the time of termination was unacceptable. The respondent followed the applicant into the car park and attempted to snatch the car keys from her possession. The applicant was then dismissed on the spot in the presence of other staff members".
I do consider that the behaviour of Mr Mahony in assaulting Mrs Sykes in the car park by seizing the keys to the company vehicle from her without any prior warning is a relevant consideration that I should take into account in this matter.
The eighth issue - having regard to all of the matters referred to in s.170CG(3) was the termination harsh, unjust or unreasonable
[23] Relating each of the elements of the "harsh, unjust or unreasonable test" in s.170CE(1) and s.170CG(3) to the facts and relevant considerations of this case, and bearing in mind that I only need to find any one of those three ingredients to be present, I am of the view that the respondent's termination of the employment of the applicant on 4 September 2001 was harsh, unjust and unreasonable because:-
(a) the respondent did not have a valid reason for terminating the employment of the applicant and the termination was for this reason unjust and unreasonable.
(b) the reasons for the respondent's termination of the applicant's employment in this case related to the conduct of the applicant and the respondent appears not to have notified the applicant of those reasons before the termination, has not given the applicant an opportunity to respond to any reason insofar as related to her conduct as an employee of the respondent and, insofar as the termination related to unsatisfactory performance by the applicant the respondent had not warned the applicant about that unsatisfactory performance before the termination and this made the termination unreasonable.
(c) the conduct of Mr Mahony in the company car park was inexcusable in all the circumstances and certainly rendered the event of termination unduly harsh, particularly considering that the immediately preceding conversation had only been about whether or not the applicant had made a reverse charge telephone call from outside Melbourne to Melbourne to a business client of the respondent.
Remedy
[24] In considering the orders I should make in this matter pursuant to s.170CH(1) of the Act I have regard to all the circumstances of the case, including the following matters referred to in s.170CH(2) of the Act: --
(a) on 20 December 2001 the respondent entered into a deed of arrangement with its creditors and an administrator has been appointed and accordingly there must be some real question as to the capacity of the company to make any payment to the applicant in this matter; however any order that I make will in the present circumstances result in the applicant becoming an unsecured creditor of the respondent and, in the absence of any other evidence from the respondent or the administrator, I doubt that an order for monetary payment to the applicant would endanger the viability of the respondent beyond the viability problems which it already has and for which the administrator has been appointed.
(b) The applicant was only employed by the respondent for approximately 10 months and did not given up other employment in order to take up her position with the respondent in December 2000.
(c) the applicant would have earned approximately $865 per week net by way of salary if she had continued in the employment of the respondent.
(d) the applicant has sought to mitigate her loss by obtaining other employment within 12 weeks of this termination and, following an unsuccessful period of subsequent employment with IMC, she is actively seeking employment again.
(e) the applicant does not seek reinstatement and the conduct of Mr Mahony and the appointment of an administrator all indicate that reinstatement would not be an appropriate remedy in this case.
[25] This is clearly not a case in which an order for reinstatement would be appropriate and the applicant does not seek reinstatement.
[26] The applicant had not left other employment in order to take up her position with the respondent in late 2000. Whilst her experience with the respondent was an unhappy one, there is no evidence to suggest that she intended to leave the employment of the respondent in the immediate future. In this case, the applicant obtained other employment three months after she left the employment of the respondent. The fact that this subsequent employment was ultimately unsuccessful and that she is again seeking employment does not, I believe, warrant attributing the whole of this period from 4 December 2001 to the present date as being the responsibility of the respondent to compensate her for. The focus of the provisions is on either reinstatement or the ordering of amounts to be paid in respect of remuneration lost by an employee because of the termination. In this case I consider that the respondent should be obliged to pay the applicant an amount equivalent to her salary entitlements for the period from 4 September 2001 when the termination was effected to 4 December 2001 when she commenced employment in the IMC venture.
[27] Pursuant to ss.170CH(6) and (7) of the Act, given that reinstatement is inappropriate in this case and is not sought, I require the respondent pay to the applicant the sum of $10380 being thirteen weeks salary at $865 per week less the one week's pay which she received on 5 Sept in lieu of notice. I have reached this figure having regard to the matters referred to in all of the circumstances of the case including:-
(a) the fact that the applicant will only obtain the position of an unsecured creditor in the administration of the respondent's debts under the deed of arrangement.
(b) the remuneration that the applicant would have received or would have been entitled to receive had the applicant's employment not been terminated, applying the four steps as set out in T. Sprigg v Paul's Licensed Festival Supermarket [Dec 1534/98 S Print R0235]:-
(i) the applicant obtained other employment within 3 weeks with IMC.
(ii) given that the applicant is unlikely to receive the full amount as an unsecured creditor.
(iii) the respondent paid the applicant one week's pay in lieu of notice.
(iv) I settle on the gross amount of $10380 for lost remuneration and leave taxation for determination.
[28] As the amount resulting from the first four steps is under the legislative cap, no adjustment is required for that reason.
ORDERS
[29] I find that the respondent's termination of the applicant's employment on 4 September 2001 was unlawful on the grounds that it was harsh, unjust and unreasonable and I order that the respondent pay the applicant the sum of $10380 within fourteen days of the date hereof.
BY THE COMMISSION:
COMMISSIONER
Appearances:
Ms S Caylock on behalf of Mrs K Sykes
Hearing details:
2002.
Melbourne:
January 29.
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