Addis v Gramophone Co Limited

e of great moment for this court and for all concerned with the proper working out of the meaning and implications of the Act. There is ample room for legitimate divisions of opinion on these questions. It is important that they be settled soon. That urgency is increased because under very recent amendments to the Act, informal arbitration upon matters involving such questions, by persons who may or may not be legally qualified, is contemplated. In

short, this is a case well fitted for referral of the legal questions identified above and summarised below for the opinion of a Full Court under s 415. However, it is patent that the present applicant is not in good financial circumstances. I would not cause her further expense by so referring questions, and I shall not refer them, unless means can be found for the matter to be fully and properly argued before the Full Bench at no cost to her. I strongly recommend to the relevant Minister or Ministers that arrangements be made to pay for Ms. Burazin to be represented on such a referral by senior counsel. It may also be a case for Ministerial intervention under s 471. I note that any interested "peak council" representative of employers or employees could also make application under s 470 to intervene. In order that this matter may progress, I will simply adjourn it for a few weeks so that the result of my recommendation may be known. If proper arrangements cannot be put in hand to the general effect I envisage, I will then fix an early date any further submissions before me and decide it myself. I do not regard that as the preferable course. Life on a local newspaper The applicant was employed by the respondent as a sales representative to sell advertising in its family-run, suburban newspaper, the Blacktown City Guardian (the Guardian). She worked there from 31 October 1994 until 12 April 1995 that is, about five and a half months. Her employment was terminated on 13 April by a letter signed by the respondent's General Manager, Ms Daisy Constantine and its Sales Manager, Mr Paul Dodd. Originally she was engaged on wages and commission to work, and did work, three days per week - Monday, Thursday and Friday. The paper's deadline for copy to the printer was Tuesday each week. Her days of work were changed early in 1995 to Monday, Tuesday and Wednesday. The change was made at her request to enable her to make ends meet by working at a second part-time job. She was an able salesperson, a personable member of the staff and, generally, an attractive person. There was considerable discussion, indeed, among relevant employees of the respondent of possibly bringing her then fiancee's and her own intentions to marry to fruition by way of staging her then intended wedding as part of a "Bridal Expo". This is a kind of fair for the vast wedding industry, marketed by the Guardian and another Constantine family venture, the well-known Parklea Markets. These discussions gave rise to a claim by Ms Burazin for loss of anticipated, considerable, economic benefit by way of the provision to her of complimentary goods and services in connection with that possible wedding. It is enough to reject that claim to say that Ms Burazin remains single, that she is no longer engaged, and that the evidence falls a long way short of establishing that the termination of the employment played any substantial causative role in the termination of the engagement. At all events, matters proceeded quite satisfactorily between the parties until about mid-March 1995. At that time the applicant complained that she had not been paid her commission due for February. On 22 March, Mr Dodd told her that the company could not afford it. He offered to pay her $40 per week extra to make up for the non-payment of the commission. The applicant did not accept this and made several unsuccessful attempts to see the General Manager, Ms Daisy Constantine. Ms Daisy Constantine alleges that in March 1995 she became aware of a need to cut costs radically, and hence decided to "freeze", by which she meant "not pay", the sales representatives their "bonus", by which she meant their commissions, for 8 weeks. Ms Burazin was not present when this plan was allegedly presented to the other sales representatives without, allegedly, any demur by them. On Tuesday 11th April some advertising copy given by Ms Burazin to the paper's "art" employee went missing. Suspicion arose in Mr Dodd's mind that Ms Burazin was responsible for the loss and was sabotaging the paper. There was some initial justification for this suspicion, but in the end the missing copy turned up, and by 12 April, Mr Dodd was no longer blaming her for its loss. On both 11th and 12th April, Ms Burazin was in and out of Mr Dodd's office on a number of occasions. On Wednesday 12th April at about 3pm Ms Daisy Constantine asked Ms Burazin to see her and Mr Dodd in the latter's office. The applicant had had informal legal advice that she should see her superiors only one at a time: "one on one" as she put it when she relayed this advice and her intention of acting on it to Ms Constantine. Ms Constantine agreed to this course of action and invited Ms Burazin to see Mr Dodd in his office on his own. As Ms Burazin was on her way in, she encountered Ms Nicky Constantine. The latter took administrative decisions in the absence of her elder sister Daisy and Mr Dodd, but otherwise worked as a secretary. In the presence of other employees, Ms Constantine sneered at her, saying words to the effect "One on one! What a joke." Ms Burazin replied to the effect "That's right Nicky, but you're too young and immature to understand that". Ms Constantine rejoined "I'd rather not be your age." Ms Burazin rushed over to Ms Constantine's desk, stood over her, pointed at her and said "Don't push me, don't push me". She then entered Mr Dodd's office where she spoke to him. Ms Daisy Constantine meanwhile called the police. Inside Mr Dodd's office, he gave Ms Burazin a letter dated 12 April in the following terms: "Due to the current economic climate of Suburban Newspapers today, unfortunately one being the Guardian Newspaper, cost cutting measures have to be implemented for company profitability. Cut backs in this case must affect an areas within the publication. At present your 24 hours (3 days a week) working time will have to be cut by a day. Hence a 16 hr week is to commence from the date of 27th April, 1995. A week settling in period has been taken into consideration to suit you. During your employment of the last 6 months the Guardian compromised to fit into your 2nd job schedule, and meet with your 2nd job's working needs. We believe though it didn't meet with that of the publication as the Tuesday was a copy day hence less canvassing. The original arrangement of 3 days a week, Thursday, Friday and Monday will stand but without the 8hrs on Monday. Keep in mind also selling of individual advertisements requires a signature on the booking slips which you haven't kept up to date with. This also applies to all staff who have been guilty of the same thing." He told her that there would be no commission and no pay rise. She pointed out that she had already been paid the $40 extra on one occasion. Mr Dodd told her that that pay rise would cease. She left his office. The police arrived soon after and Ms Burazin was removed from the premises by them. Both Ms Burazin and Ms Nicky Constantine are forceful characters. Ms Burazin was then aged 30 and Ms Constantine was 19 or 20. Ms Burazin is tall and of imposing presence. Although young, Ms Constantine was, from what I saw of her, much better able to handle herself under pressure and more assertive than most people her age. It is likely that Ms Nicky Constantine was quite taken aback and that there was a degree of upset for a short period. However, the respondent's witnesses on this matter exaggerated the affair quite considerably, in my view. The incident was about as alarming as a classroom quarrel. The next day the respondent had a letter dated 13 April delivered to Ms Burazin's home. It was in the following terms: "After careful consideration, both Daisy Constantine and myself Paul Dodd have no choice but to terminate your employment with the Guardian effective immediately upon receipt of this letter. Due to poor and unsatisfactory attitude to work and surrounding staff members. We feel management have been more than reasonable with many of your requests. REASONS FOR TERMINATION Tuesday 11/4/95 "Update and Renovate Feature" At approximately 3.30pm, 9 advertisements of your advertising were lost. Your assistance in recontacting these clients was unsatisfactory. At no time at all did you show concern for the lost advertisements that were your responsibility. Coincidentally your clientele booking sheets which would have eased the matter of finding the clients for the feature could not be located. To help with the advertising feature 4 other representatives were fortunately at hand to assist in your effort to obtain new hard copy. Wednesday 12/4/95