Allison v Bega Valley Council - [2000] NSWIRComm 43 - NSWIRComm 1995 case summary — Zoe

NSWNSWIRComm

Allison v Bega Valley Council

[2000] NSWIRComm 43

Industrial Relations Commission (NSW)|1995-07-12|Before: Sams DP, Wilcox CJ, Schmidt J, Giudice P, Duncan DP

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Court

Industrial Relations Commission (NSW)

Decision date

1995-07-12

Before

Sams DP, Wilcox CJ, Schmidt J, Giudice P, Duncan DP

Catchwords

02/18/2000 DATE OF JUDGMENT: 04/07/2000

Source

Original judgment source is linked above.

Catchwords

02/18/2000 DATE OF JUDGMENT: 04/07/2000

Judgment (98 paragraphs)

[1]

CITATION : CHRISTOPHER NEIL JAMES AND GLOBAL GOSSIP PTY LTD Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 [2000] NSWIRComm 43 PARTIES : Christopher Neil James Global Gossip Pty Ltd FILE NUMBER: 4997 of 1999 CORAM: Sams DP Termination of employment - unfair dismissal - whether a constructive dismissal - applicant resigned - whether a forced resignation - casual employment - seasonal downturn - reduced hours of work - applicant refused to follow company policy - whether company policy was unfair or ambiguous - alleged poor performance - absence of formal warning or counselling - termination at the initiative of employer - whether termination "harsh unreasonable or unjust" - compensation sought - whether compensation for hurt and humiliation CATCHWORDS : Held, resignation amounted to constructive dismissal - dismissal "harsh, unreasonable and unjust" - reinstatement impracticable and inappropriate - compensation ordered - compensation for hurt and humiliation refused - lack of evidence. LEGISLATION CITED : Industrial Relations Act 1996 Workplace Relations Act 1996 Allison v Bega Valley Council (1995) 63 IR 68 Mohazab v Dick Smith Electronics (1995) 62 IR 200 Association of Professional Engineers, Scientists & Managers Australia v David Graphics Pty Limited (unreported, Industrial Relations Court of Australia, Wilcox CJ. 12 July 1995) Linkstaff International Pty Ltd v Roberts (1996) 67 IR 381 Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 Clark v Pittwater RSL Club Limited (1998) 84 IR 309 CASES CITED : Lorna Britton v Riverstone Public School (unreported, Schmidt J, Sams DP and McLeay C, Matter IRC5504 of 1999, 6 May 1999) St Vincents Hospital Sydney Pty Limited v Harris (1998) 81 IR 173 Peters v Jenolan Caves Reserve Trust (1998) 86 IR 162 Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 Liu and Ors v Coms 21 Ltd (Giudice P, Duncan DP and Larkin C, Dec 193/00 M Print S3571) Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 HEARING DATES: 02/17/2000; 02/18/2000 DATE OF JUDGMENT: 04/07/2000

[19]

For the Applicant 9 The applicant provided a witness statement (Ex'1') and gave oral evidence. 10 He described the events leading up to, and including the illegal incident on 27 May, where a customer was arrested for accessing child pornography on the internet. Earlier, on 20 May, the same customer had shown the applicant illegal material. The applicant was shocked and disgusted and told the customer to inform the police. The customer accessed similar material again on 27 May. The applicant and another employee, Fiona Campbell, came to the conclusion that the police should be called. 11 A company director, Mr Peter Ovenden, and the Human Resources Manager, Kylie Drury, both complained to the applicant that the incident should have been reported through management. 12 An e-mail outlining the company's policy was issued the next day and after taking legal advice, the applicant e-mailed his employer on 29 May, indicating that he would not abide by the policy as it opposed his "moral, ethical and legal obligations to call local authorities if shown explicit child pornographic material". He added that by not doing so, he might be held to be an accessory to a crime. 13 The company e-mailed him on 31 May indicating that, by refusing to abide by a legally valid policy, the applicant was in breach of his employment contract. 14 Ms Drury called him on 1 June and asked if he understood the policy. He told her that the only way he could agree to the policy was if the manager agreed to contact the police once having been told of an incident. Ms Drury said if he didn't agree, management would have to take action. He asked if this meant losing his job. Ms Drury responded by suggesting a meeting with the company solicitor. 15 On 3 June Ms Drury, the company solicitor, Mr Garry Crossley and store manager, Sarah Jane Lascelles, met with the applicant with a witness, Mr Mark Sutcliffe. The applicant "felt" this was a disciplinary meeting. 16 He attests that the solicitor had agreed the policy was ambiguous and would need to be changed. 17 The applicant said that his roster in that week was changed and he lost a shift. When he queried this with another employee, Ms Fiona Campbell, she replied that Ms Lascelles had drawn up the roster. When he asked Ms Lascelles she had said Ms Campbell made up the roster. 18 He reaffirmed much of this testimony in evidence in chief. 19 In a meeting with manager, Geoff Fisher, on 19 August, the applicant attests that he told Mr Fisher that the reason for his loss of shifts was his failure to abide by the policy. Mr Fisher said Ms Lascelles had told him the reasons were "not turning up to staff meetings or training sessions". He said he hadn't known of the staff meeting and he had told management he couldn't attend the training. In any event, he said, these incidents were after his reduction in hours and were therefore not valid reasons. 20 The applicant attests that the only times he couldn't work at Global Gossip because of his hours at Grace Bros were Thursday 4.00-9.00 pm, Friday 9.30-6.00 pm, Saturday 9.30-6.00 pm and Sunday 11.00-4.00 pm. However, the next fortnight's roster had him working Thursday night, Friday day, Saturday day and Sunday day. He rang Mr Fisher on 26 or 27 August and said "because I have been rostered on the only times that I cannot work, I have no option but to quit". He said Mr Fisher made no offer to swap shifts. 21 On 31 August the applicant says he sent a letter of resignation indicating he was very disappointed at the way he was treated. He received no response - although the respondent says it never received the letter. 22 In oral evidence, the applicant said he received the offending roster on the weekend of 21-22 August, and did not phone Mr Fisher until the following Thursday. He said during this time he had asked Grace Bros if he could change his hours with them - but this was refused. He said Mr Fisher knew full well of his Grace Bros job and when he couldn't work for Global Gossip. 23 The applicant acknowledged that, in a staff meeting in June 1999, employees were told that there was a requirement for a reduction in staff hours. 24 In cross examination, the applicant admitted removing, without permission, various documents from his employer, including e-mail messages. He was asked about the policy with which he disagreed, and acknowledged the company was entitled to set policies in relation to the operation of its stores. He said however, he was not called upon to abide by the policy because there were no further incidents. He said that he now believed the company was acting responsibly.

[20]

25 The applicant was closely examined on the roster attached to Mr Fisher's affidavit and the times he actually worked. He said that in the week ending 6 June he worked twenty hours, and complained about the loss of one shift. In the following three weeks his hours were 19.5, 19.5 and 16.5. He had not complained about these hours, but in the next week, his hours were reduced to 4.5. This reduction coincided with the staff meeting where employees were told of a cutback in hours. He accepted the company was entitled to reduce the hours. While he questioned his reduction in hours with Ms Lascelles and Ms Campbell, neither had said the reason was his refusal to abide by the policy. He assumed "to an extent" that the reason was because of an overall reduction in hours. 26 In the meeting with Mr Fisher on 19 August, the applicant said that Mr Fisher offered him more hours if he agreed to abide by the policy. He accepted that this was an important matter omitted from his original statement (Ex'1'). 27 After being taken to the rosters by Mr Scheib, he accepted that not all the shifts required by Global Gossip in the second roster conflicted with his shifts at Grace Bros and that it did not substantially conflict. He accepted he could work two of the three shifts or 14 of the 22 hours on offer. In the following week, he could have worked 24.5 hours of 32 hours offered, but declined to do so. 28 During this cross examination it emerged that there were two rosters, Ex'4' an earlier draft, and an annexure to Mr Fisher's affidavit. He attested that the roster he received was Ex'4' only, and he received it after his meeting with Mr Fisher. 29 A third set of rosters was produced (Ex'A') for the same period. These revealed that corrections and amendments were made to rosters which the applicant said, to his knowledge, did not occur. He later acknowledged that the rosters were amended, but they were not always e-mailed; rather amendments were pinned to the store notice board. He accepted that he would look at the notice board and it was in clear view. 30 The applicant was taken to an e-mail (Ex'B') sent to him on 22 August advising of changes to the roster commencing 23 August. He said he received the e-mail, but the roster attached was Ex'4' and not the amended roster annexed to Mr Fisher's affidavit. 31 The applicant said he waited until Thursday, 26 August to phone Mr Fisher (Mr Fisher says it was the morning of the 27th). He didn't ask for the roster to be changed, but resigned. He said he used the words "you know I couldn't work these particular days" - although these words were not in his original statement. He disagreed with Mr Fisher's version of the conversation. 32 He was asked what he had requested of Grace Bros in respect to adjusting his roster. He confirmed that Grace Bros was his preferred employer. 33 He accepted that, at the meeting with Mr Fisher on 19 August, Mr Fisher was offering him more work and that he had a good relationship with him. Mr Fisher was approachable. He said he was then confused when he received the conflicting roster on 22 August. 34 The applicant said he hoped for a negotiated outcome in the phone call of 26 August, although he did not ask Mr Fisher to change the roster. The next day he wrote a letter of resignation and sent it on 31 August; but didn't keep a copy. He relied on his memory to say the letter was short and did not express concern at the lack of alternative arrangements offered to him. The applicant was asked what efforts he had made since leaving Global Gossip to secure extra work. He said he did not ask Grace Bros for extra hours, but had secured 7.5 hours at another retailer as a shop assistant. He also secured some promotional work through an agency.

[21]

For the Respondent 35 Mr Peter Ovenden, Company Director, provided affidavit and oral evidence. In his affidavit, Ex'C', he described the facilities provided in Global Gossip stores operating throughout Australia. 36 There is no dispute as to the employment history of the applicant, except Mr Ovenden says the applicant verbally resigned on 27 August 1999. No resignation letter was ever received. He said that as a casual, the applicant was offered varying hours, according to a roster published in advance, and depending on each store's changing circumstances. 37 Mr Ovenden said that in late June 1999, reacting to a seasonal downturn, the company introduced a cost saving policy by reducing hours. He said as a general rule the hours in all stores were reduced by fifty per week. The hours were increased in August 1999 following a promotional strategy. 38 In reply to the applicant's statement, Mr Ovenden agreed that he had told him he should have contacted someone at Head Office about the 27 May incident, but denies the applicant's version of the conversation and denies that he violently shook papers at him. 39 In cross examination, Mr Ovenden said he visited the Oxford Street store, at least once a week, sometimes spending two or three hours in the store. However, he had not worked alongside the applicant in the Oxford Street store. 40 Of the four directors, two were working directors and two were not. Mr Overden said, as a director, he had no involvement in rostering of staff, but he had a responsibility in terms of broad policy decision making, such as the decision to reduce overall hours due to the winter months downturn. There was no written directive to this effect; rather he instructed the Director of Operations to reduce overall hours. 41 In respect to the resignation letter, Mr Ovenden had undertaken inquiries at Head Office and the Oxford Street store and no one had received, or had seen such a letter. 42 Mr Ovenden said that it was the management who raised the issue of employees possibly viewed as colluding in a crime, if they did not report an alleged illegal incident. He had discussed with the applicant, management's view that employees should notify management, rather than contacting the authorities themselves. He accepted that he had been "very upset" the Police were called on 27 May, before Head Office was notified. 43 He said the policy was put in place the day after the incident, following discussions at senior management level. He said he was not annoyed that the applicant refused to abide by the policy. 44 Mr Ovenden was asked about the two rosters before the Commission and said that, apart from displaying the roster in the store and the e-mail (Ex'B'), which had no attachment, there was no other documentary evidence that proves the applicant received the second roster. 45 Mr Geoffrey Fisher is the respondent's operations manager. He had been a temporary manager in the Oxford Street store for a short time from 14 August 1999. 46 He describes the meeting with the applicant at about 5.00 pm on 19 August 1999. The applicant had said he was looking for more hours, but had felt Ms Lascelles and upper management wanted him out. Mr Fisher said he knew the applicant was working at Grace Bros, but didn't know his shifts and the applicant didn't raise it at the meeting (the applicant's version of the conversation is disputed by Mr Fisher). 47 Mr Fisher said he sent the second roster to the applicant on 19 or 20 August, providing him with a total of 22 hours and 32 hours, respectively, in the subsequent two weeks. 48 He had not heard from the applicant until the morning of 27 August (the applicant says it was the night before). Mr Fisher said the applicant had said "I can't work for Global Gossip any longer because I can't work two jobs. Please tell Peter and Phil that I will send in a resignation letter" 49 The applicant had not mentioned his roster conflicting with his roster at Grace Bros. 50 In cross examination, Mr Fisher was shown Ex'4' and said he prepared this roster after 5.00 pm on 19 August when it was sent by e-mail to all staff (possibly on 21 August) and pinned on the notice board. It was prepared after the meeting with the applicant on 19 August. It was subsequently altered and re-sent on 20 August (Ex'B' shows it sent on 22 August). He said it was not uncommon for rosters to be adjusted, depending on changed circumstances, or an employee's personal requests. 51 He gave evidence that he couldn't remember which day it was sent and said the confusion of the time of Sunday 4.25 am, as disclosed on the e-mail, might have referred to the time in the United States. 52 He reaffirmed that the applicant had phoned him on the morning of 27 August; the applicant had not asked him to change the roster and if he had, he would have tried to accommodate him. 53 In further questioning Mr Fisher said that Ex'B' reveals that there was a roster attached to the e-mail of 22 August and that the message was relayed through the United States as Hotmail is based there. 54 In cross examination, Mr Fisher said that he started working for Global Gossip as a casual in April 1999 and became operations manager in July 1999. In the hierarchy, all store managers report to him and he reports to the director of operations, Kylie Drury. He said that until the staffing system was changed in September 1999 there had been no supervisor at the Oxford Street store from the middle of June. He had been acting store manager from 14 August to 23 August and had prepared the rosters for the two weeks commencing 23 August. He accepted this was the first occasion he had prepared rosters for the Oxford Street store. He had received no instructions as to the requirements for drafting the roster, nor did he look at past rosters, or ask anyone about them. He said, while he was aware the applicant worked at Grace Bros, he didn't know the details. 55 Mr Fisher gave further evidence of the meeting with the applicant on 19 August. There had been discussion of the illegal incident and the applicant had said his hours had been reduced because of that incident. Mr Fisher had told him that as a casual he could have been finished up at any time. He had told him that Ms Lascelles had expressed concerns as to his not attending meetings. The applicant had refuted these allegations. 56 Mr Fisher had participated in the management meeting in June 1999 which determined to reduce hours - it had not been store specific. There had been no discussion about the affects on individual staff or putting a freeze on engaging new staff. He accepted good management practice would be to minimise the impact on existing staff and not employ new staff. 57 Mr Fisher says he was absolutely certain the applicant called him on Friday morning, 27 August (not the night before) because he was left short staffed for that night. In this phone call, he recalled the applicant only said he "could not work two jobs" and not that it was "two jobs at the same time". He had understood him to mean that he could only work one job and he had chosen Grace Bros because he had added "I resign" and a letter of resignation would be sent. Mr Fisher had not dissuaded him from resigning because earlier offers of help had not been followed up by the applicant. He denied it was a "relief" that he had resigned.

[22]

58 He was only aware of performance related issues which were expressed by Ms Lascelles and Ms Drury. He later was told by Ms Lascelles about an issue with cleaning. He was unaware of any disciplinary action taken against the applicant. 59 Ms Sarah-Jane Lascelles commenced casual employment with Global Gossip in July 1998 and the following month became a store supervisor for the Kings Cross store. She became and manager for both Kings Cross and Oxford Street, when the latter opened in April 1999. 60 Ms Lascelles was the manager of the Oxford Street store for most of the time the applicant was employed at the store. In her affidavit, Ex'E' she said she had "inherited" him from the Central store and at the time was "not overly impressed with his performance; although, she said he had good customer skills. She felt the move to Oxford Street would boost his overall performance. 61 On 23 June 1999, she met the two directors, Mr Ovenden and Mr Dean, who informed her that work rosters had to be cut as a cost saving measure. She said the rosters were reduced by about fifty hours and most of the casual staff had their hours reduced and one was terminated. Her decision to reduce the applicant's hours was because he was the least flexible of the casual staff, was not as reliable or as committed as others, and had a second job. 62 She said she was responsible for the rosters up to 16 August 1999 and did not purposely roster him on, when she knew of his other commitments with Grace Bros. 63 In cross examination, Ms Lascelles said she could not remember, ever raising any issues as to the applicant's performance; rather, it was simply emphasising that certain things had to be done. She did, however, raise her concerns with head office. There were no counsellings and no specific process put in place to improve his alleged poor performance. 64 Ms Lascelles described her "chatline" conversation with Fiona Campbell - an employee who also worked at the Oxford Street store in the same capacity as the applicant. She had expressed to Ms Campbell some unhappiness with a head office employee named Julie. In respect to the illegal incident, she had expressed to Ms Campbell that she was very angry with the applicant, and that he shouldn't have called the police before calling her. 65 She was shown a "chatline" conversation with Ms Campbell at 11.27 am on 27 May 1999, which discloses that Ms Campbell was happy with the applicant and said "Chris is very efficient, you know I got in at 9.00 am and everything was beaut" Ex'3'. This was within an hour of the illegal incident with the customer. 66 Later that same day, Ms Lascelles admits saying she was never completely confident in him (the applicant) opening the store, and, despite her reservations, had done nothing about it. 67 She conceded that the words "you do delete dialogues, don't you?" was because she did not want other people accessing the conversation. In respect to another "chatline" conversation with Ms Campbell, Ms Lascelles says she did not know what was meant by "I have also left Ben off the schedule, for well obvious reasons". 68 In questioning as to the reduction in hours, Ms Lascelles said she knew about the hours the applicant could work, because it was on an e-mail in the applicant's file, kept in the Oxford Street store. She had not removed this e-mail from the store and expected it to still be there. She had not told Mr Fisher of any particular staffing requirements, or specifics as to the applicant's availability. 69 She accepted that, faced with a policy to reduce hours, a responsible manager would not be engaging new staff. She was shown the rosters and accepted that new staff, albeit from the Kings Cross store, had worked on shifts in Oxford Street. She said, however, that it was easier to train staff in the Oxford Street store and this was why the new names appeared on the roster. She was also asked about the hours of existing staff and agreed they had suffered no reductions and some had increased hours. A staff member, Helen, who left, had only worked for one month. 70 Ms Lascelles accepted that, when reducing the applicant's hours, she took into account her view that he was not as reliable or committed as other staff. She had never told the applicant this was the reason. She said she had no recollection of the applicant complaining about his hours, or saying the roster he had complained about was Ms Campbell's responsibility. 71 She denied using the roster to remove Ben from employment. She said that he was "quite happy" about it. She further denied that she was very negative towards the applicant, or that she had singled him out for reduced hours. She accepted that, at no time, had she raised with the applicant, concerns as to his reliability or commitment; but conceded she had made decisions about his employment based on these concerns. 72 In re-examination, Ms Lascelles said that she was shocked when she saw hard copy of her conversations with Ms Campbell. She accepted there was no confidentiality and anyone could click on to a person's name and access their messages.

[58]

The Termination of Employment 76 The essential question for determination is whether the applicant's termination of employment falls within the class of dismissal known as a "constructive dismissal" . A consequential question - was the dismissal, "harsh, unreasonable or unjust" within the meaning of ch 2 Pt 6 of the Act - only arises if the answer to the first question is in the affirmative. I will come to this latter question shortly. 77 True it is that the applicant submitted his resignation; whether he did so in a letter and whether the letter was actually sent, or received, is not particularly relevant. He had resigned in the phone call to Mr Fisher on 26 or 27 August. He acknowledged as much in his evidence. That, of course, does not end the matter. He claimedhe had been forced to resign because he was rostered at times when management knew he was unable to work because of his other commitments with Grace Bros. 78 In my view, it is crucial to recall that the applicant had expressed a view, on 19 August, that Ms Lascelles had reduced his hours because management wanted him out. Mr Fisher acknowledged as much in paragraph 4 of his affidavit, Ex'D'. Thus, it must be accepted that the applicant genuinely believed, rightly or wrongly, that a set of circumstances was being constructed which would force his resignation. He expressed his belief openly, a week prior to the resignation. No one in management made any effort to disavow him of this belief. Indeed, Mr Fisher did not reject, or attempt to dissuade, the applicant from his belief when there was an opportunity to do so. Mr Fisher did, however, construct a roster which provided him with significantly more hours than he had earlier received. Should this have convinced the applicant that his belief was misplaced or erroneous? To answer this question requires a careful analysis of what roster he actually received, and whether it made his Grace Bros employment so untenable, that he was left with no option but to resign. I shall turn to the evidentiary difficulties of the rosters shortly.

[59]

Relevant Principles 79 The Commission's principles as to what constitutes a constructive dismissal are now well established. They emerge from a long line of precedent with the most oft quoted authority being Allison v Bega Valley Council. 80 It is appropriate to record the relevant extract from the Full Bench decision: It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning. In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment. Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue.

[64]

I also believe, in Ms Lascelles' case, that she was annoyed her management role, in dealing with such matters, had been usurped by a subordinate. 85 There is, of course, a public duty on all citizenry to report acts of alleged criminal activity. Sometimes, members of the public can be over exuberant, to the point of obsession with so doing. Others have a deep personal commitment to help in eradicating criminal activity which they find particularly abhorrent. I am satisfied that the applicant falls in the later category in respect to his understandable aversion to child pornography. 86 The applicant believes that if he did not report such activity, directly to the police, he might be held to be an accomplice to a criminal act. This is a mistaken view. So long as he reports the activity to an appropriate person, such as his supervisor or management, his public duty is, in my view, completely discharged. By taking matters into his own hands, he puts himself and other employees at personal risk. In any event, it is surely a matter of plain commonsense, that such incidents be reported, and acted upon, by management. It is management's legal and moral responsibility, stricto sensu. 87 I nevertheless accept the sincerity and conviction of the applicant's position. 88 Being aware that the applicant was so fervent, even passionate, about this matter, and because he had been the central character in the illegal incident, it would seem sensible that the company's introduction of the new policy be handled in a sensitive way, particularly as it was to be applied to the applicant. 89 I do not believe it was so handled. 90 It is trite to note that the policy was not in place when the applicant commenced employment - indeed, the policy arose directly out of, and as a result of the incident. Perhaps, with hindsight a more consultative and inclusive dialogue with employees, and in particular the applicant, might well have produced an agreed and acceptable policy. The word "commonsense" springs to mind. I hasten to add that this is not to derogate the company's ultimate responsibility for introducing reasonable policies which must be accepted by employees. 91 The applicant gave uncontested evidence that the company's solicitor, conceded the policy may be ambiguous. I would also express some concern as to what was to occur if a supervisor or manager was not in the store, or wasn't readily available. Should an employee in such circumstances, take matters into his/her own hands? 92 One further matter needs to be mentioned. Even though the applicant had said he would not abide by the company policy, he was never actually presented with a set of circumstances in which his opposition could be tested. Put another way, he never contravened a company policy. It must logically follow that any punitive action taken by the employer on a presumption he might do so, might well be regarded as unfair.

[85]

G) Even if I accept that Ms Lascelles had reduced the applicant's hours for the reasons she stated (see para 61), the applicant was never told it was because he was the least flexible, not as reliable or committed as others or that he had a second job. He was entitled to know the reasons and be given an opportunity to defend himself. This was denied to him. Mr Fisher seems to think the only reason was related to the applicant failing to attend meetings. Such an allegation had been satisfactorily rebutted by the applicant. 105 It seems the new employees, starting out as casuals and demonstrating potential, make a rapid rise in promotion. It is unfortunate, however, that promotion is not always accompanied by appropriate supervisory or management training. Mr Fisher gained rapid promotion from a casual to Operations Manager in three months. Mr Fisher's evidence was that he was not aware of the shifts worked by the applicant at Grace Bros. In my view, it was not unreasonable to expect that he should have been. The applicant's arrangements were held in an e-mail in his personal file kept at the Oxford Street store. Having assumed responsibility for the store, it was reasonable that he would acquaint himself with the history and requirements of the store. It was a small store with only a few staff. 106 There is much about the applicant, disclosed in his behaviour and from his demeanour in the witness box, which leads to a conclusion that he is a witness of credit. He is a hard working young man, juggling a number of jobs and working irregular hours. There were no performance related issues relied upon by the respondent. He has strong personal convictions which are to be applauded. There was, however, some criticism of him taking home hard copy e-mails and messages without authorisation. He acknowledged he had not sought, or received permission, to do so. In the context of his fears that his job was in jeopardy and in view of the idle and damaging gossip between Ms Lascelles and Ms Campbell, it is hardly surprising that he might seek to retain some evidence to protect his position lest it be erased from the computer system. I hasten to add, I do not condone his removal of company records; but they were not confidential and were inappropriately used as a basis for impugning his employment. 107 Similarly, Mr Scheib attacked the applicant's credibility for failing, in his first statement, to record the precise words in various crucial conversations. In my view, these are discrepancies of omission, rather than direct conflict. It does not materially affect the substance or intent of the conversations. In addition, it should be remembered that the applicant prepared his statement without legal advice or assistance. It is a little harsh to be critical of an unrepresented litigant for a failure to be technically precise.

[87]

Hurt and Humiliation 108 Ms Rudland, submitted that any compensation order, pursuant to s89(5), should take into account the "hurt and humiliation" suffered by the applicant. Presumably, I would be doing so under the wide scope of s88(f) which allows the Commission, in determining an applicant's claim, to take into account "Such other matters as the Commission considers relevant". 109 I was not provided with any authority in support of this proposition, although the Commission is aware that in a recent decision of the Australian Industrial Relations Commission in Liu and Ors v Coms 21 Ltd (Giudice P, Duncan DP, Larkin, C Dec 193/00 M Print S3571) a Full Bench of the Australian Commission, on appeal, discussed the terms of s170CH(3) to (7) of the Workplace Relations Act 1996 and a decision of the Full Court of the Industrial Relations Court in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 which permitted compensation for "shock, humiliation and distress". The Commission said: If the current Act was intended to overrule Burazin one would expect a specific indication of that, given the terms of s170CH(7), rather than the minor changes in phraseology to which Mr Constance referred. We have concluded that the relevant words in s170CH(6) should be construed to mean only that where the Commission considers that reinstatement is inappropriate it may make an order for compensation as an alternative remedy. We do not think that such a construction does any violence to the ordinary meaning of the words used. We reject the submission that the terms of s170CH(6) do not permit the Commission to order compensation for shock, humiliation and distress. 110 The Commission then discussed the extent of the evidence before the Commission at first instance, and upheld the appeal on the basis that the original matter was not approached "by reference to the evidence, such as it was, of the affect their dismissal had upon the applicants in this case". 111 It is trite to note that Liu was decided under a different legislative scheme and determined according to its own particular set of facts. 112 Ms Rudland adduced no evidence as to the nature, or extent of the "hurt and humiliation" alleged to have been suffered by the applicant.

Allison v Bega Valley Council

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Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (98 paragraphs)

Parties

Cases Cited (11)

Cited By (1)