Donovan and Anor v Kensington Pharmacy and Newsagency

APPLICANT: Ms Lynette Donovan, for both applicants LEGAL REPRESENTATIVES: RESPONDENT: Mr Christopher Raheb, Oxford Legal

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 13 December 2004 Matter No IRC04/4061 Lynette Donovan and Kensington Pharmacy and Newsagency Application by Lynette Donovan re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No IRC04/4062 Kyrie Whitelaw and Kensington Pharmacy and Newsagency Application by Kyrie Whitelaw re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 Matter No IRC04/4911

Lynette Donovan and Kensington Pharmacy and Newsagency Application for relief from victimisation pursuant to s213 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 385

1 On 13 July 2004, Ms Lynette Donovan and her daughter, Ms Kyrie Whitelaw ('the applicants') filed claims under Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'), seeking relief in respect to their alleged unfair dismissals by Mr George Khouzame, the pharmacist and part owner of the Kensington Pharmacy and Newsagency ('the respondent'). Their dismissals were said to have been related to the same circumstances and to have taken place on, or about 5 July 2004.

2 Conciliation conferences were convened by the Commission on 29 July 2004. Both parties were unrepresented. The Commission chaired private conferences with the parties; but the claims were unable to be resolved. Directions were issued for the filing of evidence in preparation for the arbitration of both matters in October 2004.

3 However, on 13 August, Ms Donovan filed a further claim against the respondent in which she alleged that she had been victimised pursuant to s213 of the Act. That matter was listed for conciliation on 2 September. Conciliation of that claim also proved unsuccessful. As the circumstances surrounding the s213 application were relatively similar to the background to both unfair dismissal claims, all the matters were listed to be heard concurrently on the previously nominated dates.

EVIDENCE Evidence of Lynette Donovan as to her alleged unfair dismissal

4 Ms Donovan commenced employment as a casual shop assistant in July/August 2002. As a single parent, she relied on this job to supplement her income. Her hours were originally 15 to 23 hours per week, but were cut to 8 hours on a Sunday in late 2003. Ms Donovan deposed that when Mr Khouzame took over the business in late 2003 she was constantly told her hours could be reduced at any time. She was very upset by this. She believed that similar threats were made to other staff, sometimes in her presence. She recalled one specific instance when she said she had been threatened with reduced hours if she did not fill in for an absent staff member.

5 In 2004 no rosters were posted in the workplace. At this time, the shop underwent a major renovation and the hours of trading were to be extended to 24 hours a day. Ms Donovan said she was told her hours would be affected; possibly by the loss of a weekday shift. Despite her constant questioning of Mr Khouzame, she could never get a definite answer as to what was to happen with her hours. Ms Donovan deposed that, at no time, was she advised that her hours would actually increase; otherwise she would not have been so concerned.

6 On 4 July 2004, Ms Donovan said that she informed another staff member, Maria Tziotis, that she had phoned the Department of Industrial Relations to find out about her rights as a casual employee in a situation where her hours may be cut. She had been advised that if she worked the same number of hours for over six months, the hours could not be changed or reduced. When she finished her shift that day, Mr Khouzame arrived and told her that her next shift was to be Thursday from 5.00 - 9.00pm.

7 The next day after missing a mobile call from Mr Khouzame, Ms Donovan called him back. Ms Donovan claimed Mr Khouzame began a tirade of abuse. He yelled at her and accused her of threatening him. He said that three staff members had told him that she was intending to take him to "industrial relations." Ms Donovan said Mr Khouzame continued to yell at her and said, "you are never to come back here again, you are sacked." Ms Donovan said that she tried to explain that she needed her job and her existing hours. She said the phone call ended with her in tears and with Mr Khouzame promising to call her back. He never did.

8 Ms Donovan later made contact with the other partner in the business, Mr Ferras Karem, who she regarded as more rational and reasonable. He had told her that George (Mr Khouzame) had felt threatened by her. She explained that she had only made an inquiry and that another staff member had created trouble by relaying incorrect information to Mr Khouzame. Ms Donovan said she understood why Mr Khouzame had lost his temper after hearing Maria's gossip because he had to settle a recent unfair dismissal claim and WorkCover had recently been called in to the workplace. She told Mr Karem that it was not her intention to take Mr Khouzame to Court. She only wanted to retain her current hours.

9 Mr Karem had told her he couldn't understand all of this, as George had always said she was a good hard worker. He said he would arrange a meeting with Mr Khouzame at which she could apologise. She had refused to do so because she believed she had done nothing wrong. Moreover, it was Mr Khouzame who should apologise to her. Ms Donovan also told Mr Karem that as a result of her dismissal, her daughter had also been sacked by Mr Khouzame. Ms Whitelaw than spoke to Mr Karem. Mr Karem promised to get back to them both and had agreed Ms Donovan had a right to contact the Department. He never got back to them.

10 Ms Donovan said she went to the Pharmacy on 7 July to collect her and her daughter's final pay. Another employee, Ms Zeenat Chowdhury told her that she had heard all about her being "sacked."

11 Ms Donovan believed that the only reason why she was dismissed was for exercising her right to get information from the Department of Industrial Relations and for telling other employees about her inquiries.

12 Ms Donovan sought the maximum compensation. She had not applied for reinstatement, because of Mr Khouzame's aggression and malice. She said she had applied for many casual positions, but had been unsuccessful.

13 In oral evidence, Ms Donovan absolutely rejected Mr Khouzame's version of their phone conversation on 5 July. Despite Ms Donovan constantly mentioning having been sacked, Mr Khouzame had never told her that this was not the case. He had said that they had been thinking about increasing her hours, but by this time she had been sacked.

14 Ms Donovan rejected Mr Karem's evidence that he had not asked her to apologise to George. Ms Donovan conceded that if she had reached an agreement over her hours, there would have been no problem. She said that at the time, she had wanted her job back and was waiting for Mr Karem to call her back. Mr Karem had not offered to sit down and resolve the matter. Rather, he wanted her to apologise to Mr Khouzame.

15 Further, in oral evidence, Ms Donovan said she continued to work full time 9 to 5, Monday to Friday and had applied for several part time jobs. She believed that her age had been the reason why she had not been successful.

16 Ms Donovan reiterated her evidence about contacting the Department as a result of her concerns that her hours might be reduced. She told Maria Tziotis and Ms Elizabeth Montecinos that she had done so and what advice she had received.

17 Mr Khouzame's response had been to abuse her, accuse her of threatening him and to sack her. Ms Donovan said that as a single parent she had relied on the supplement to her income of $200 to $250 per week and had intended to continue working for at least eighteen months, until her daughter completed the Higher School Certificate (HSC).

18 Ms Donovan claimed that she had been victimised by Mr Khouzame in accordance with s210(f) of the Act, in that she was dismissed for simply exercising her rights under the Act and telling other staff members about her inquiries.

19 In oral evidence, Ms Donovan said that she was seeking compensation, not reinstatement, for having been victimised. She agreed that the claim had been filed outside the 21 day time period. However, she had been waiting for Mr Karem to call her back. After making further inquiries, she had realised under what section of the Act she had been victimised under.

20 Ms Whitelaw is a sixteen year old school student who had worked as a casual shop assistant for the respondent for eighteen months. She was studying for her HSC and had worked two days a week from 3.30pm to 7.30pm.

21 Ms Whitelaw claimed that she was dismissed on 5 July by Mr Khouzame soon after her mother's dismissal on the same day. Ms Whitelaw said that around 2.00pm that day, she received a phone call from her mother who was in tears. She had told her she had just been sacked by Mr Khouzame. Her mother made her promise not to say anything when she went to work as she did not want her to get involved.

22 Ms Whitelaw arrived for work at around 3.25pm and went to the back storeroom to get changed. She said two other employees were there, Elizabeth Montecinos and Cary Gardiner. She had asked Elizabeth if she had heard what had happened to her mother. Ms Montecinos replied that she had heard she'd been sacked and that it was wrong.

23 Ms Whitelaw said she then went into the dispensary. Mr Khouzame was there and said "hi." She did not respond, because she was upset. Mr Khouzame then rudely asked "what's your problem?" Ms Whitelaw deposed that she said, "I did not like the way you spoke to Mum." Mr Khouzame yelled back "you can get out too." She then said "does that mean I'm sacked too?" Mr Khouzame replied "yes and get out of my shop now." Ms Whitelaw strongly denied Mr Khouzame's version of the conversation. Ms Whitelaw said she went back to the storeroom and sent her mother a text message saying that she had been sacked. She said that both Elizabeth and Cary were shocked at what had happened.

24 The next day, Ms Whitelaw conveyed to Mr Karem the conversation she had with Mr Khouzame. He had asked how many people were in the shop at the time. She said there were about five (including Mr Khouzame and herself), but none were close to the dispensary and could not hear the conversation which had occurred over three metres away. Mr Karem had said he would have to hear both sides of the story. He would "sleep on it" and would try and work things out. She had never heard back from Mr Karem. Ms Whitelaw later received full payment for the shift she had not completed.

25 Ms Whitelaw denied ever yelling at Mr Khouzame or calling him a dictator. She had never received any warnings for poor performance, inappropriate behaviour or attendance. In July 2003, Mr Khouzame even wrote her the following reference: " She is punctual, polite, good rapport with both customers and other staff and is of a very cheerful disposition. It is a pleasure to have her as part of the team and I have no hesitation in recommending her ."

26 Ms Whitelaw believed she was unlawfully dismissed for no other reason than Mr Khouzame was in a bad mood. Being only sixteen years of age, Ms Whitelaw said she found this experience very upsetting and distressing. She sought the maximum compensation for her unfair dismissal ($1500.53).

27 In reply to Ms Tsiotis' affidavit, Ms Whitelaw deposed that Ms Tsiotis was nowhere near the dispensary during the incident and at no time had she yelled or been abusive to Mr Khouzame. Ms Tsiotis could not have heard her voice; as Mr Khouzame was the only one yelling.

28 In cross examination Ms Whitelaw said that she had drafted all of her statements. They were her own words which had been typed by her mother. Ms Whitelaw said that at the time she started to look for work, she had been involved in a car accident. She sustained a broken collar bone and had not been to school for a month and a half. EVIDENCE

29 Mr Cary Gardiner and Ms Elizabeth Montecinos gave evidence under summons.

30 Mr Gardiner had worked for the respondent since 2001 and now worked at the Pharmacy during his university holidays. Mr Gardiner deposed that he was very grateful to Mr Khouzame for the hours he was able to offer him, and Mr Khouzame had been very supportive.

31 Mr Gardiner was at work on Monday 5 July, although he said he was not privy to any of the conversations between Ms Donovan and Mr Khouzame. Mr Gardiner deposed that around the time of this incident, staff had been constantly discussing the renovations of the Pharmacy. However no one expected much would happen.

32 Mr Gardiner said that on this day he was told by Liz (Elizabeth Montecinos) that George (Mr Khouzame) "had just fired Lyn on the phone." She had said that Maria had called Mr Khouzame and told him that Ms Donovan was "taking him to court for industrial actions (sic)."

33 Mr Gardiner further deposed that when Ms Whitelaw arrived at around 3.30pm, he had been working out the back with Liz. Ms Whitelaw didn't appear aggressive or angry, but she did mention that her mother was no longer working there. Both of them already knew this and Mr Gardiner said he told her he knew.

34 Mr Gardiner deposed that about five minutes later Ms Whitelaw returned to the storeroom and told him she had just been sacked. She appeared to be a bit shocked but wasn't angry. Mr Gardiner confirmed that he witnessed Ms Whitelaw then sending her mother a text message to tell her she had been sacked.

35 It was Mr Gardiner's further evidence that he was at work on 7 July when Ms Donovan came in to collect hers and her daughter's pay. He had given the pay to her - not, as Ms Chowdhury said, that it was her. Mr Gardiner said that Ms Chowdhury had not arrived for work at this time. Mr Gardiner said he had a chat with Ms Donovan about what had happened. He said that Ms Donovan was not angry and she had said that Mr Khouzame may have been affected by another case that was weighing on him.

36 Ms Montecinos had worked at the Pharmacy for three to four years. Mr Khouzame had asked her to make a statement for these proceedings, but she had declined to do so, because she had not wanted to get involved.

37 Ms Montecinos said that Ms Donovan had told her she had called the Department of Industrial Relations about two or three weeks before Maria had raised the matter with her. She said that Ms Donovan had not made any threats, but rather had inquired about her rights to have her hours reduced.

38 Ms Montecinos had informed Mr Khouzame that Ms Donovan had called "industrial relations" to find out about her hours of work. She could not recall anything being said about taking him to court. Ms Montecinos agreed that there was some confusion with staff about their hours because no roster was posted in the workplace.

39 It was Ms Montecinos' evidence that if an employee did not turn up for their shift , they were phoned to see what was happening. Ms Montecinos said she did not know what happened on 5 July involving Mr Khouzame and Ms Donovan. However, when Ms Whitelaw arrived later in the afternoon she told her that her mother had been sacked after a "bit of an argument" with George. It was Ms Montecinos' belief that Ms Donovan had been sacked.

40 Ms Montecinos' evidence was that Ms Whitelaw had told her that she had said to Mr Khouzame "how dare you talk to my Mum like that" and that he thought she had been screaming at him. Ms Montecinos heard no yelling herself. After Ms Whitelaw tried to phone her mother, she then sent her a text message.

41 Ms Zeenat Chowdhury gave evidence that she was employed by the respondent and, in Mr Khouzame's absence, she was responsible for distributing wages to employees. She deposed that on 7 July she was approached by Ms Donovan who asked for her and her daughters' wages. Ms Chowdhury accessed the safe and gave her the two pay envelopes. In cross examination, Ms Chowdhury said she could not recall if she gave Ms Donovan her pay on 7 July.

42 Ms Chowdhury said that Ms Donovan had asked if she had heard that Maria had told George about her inquiries to the Department of Industrial Relations and that Mr Khouzame had called her and they had a heated argument. Ms Chowdhury agreed that she had heard about a "fall out" between them. However, Ms Chowdhury said Ms Donovan never made any comments to her about having been sacked.

43 Ms Chowdhury said that Ms Donovan had then "whinged" about Maria going to George about her concerns and inquiries to the Department.

44 In oral evidence, Ms Chowdhury deposed that on 5 July she knew there was talk amongst the staff about a disagreement between Mr Khouzame and Ms Donovan. Ms Chowdhury said she could not recall if she had actually worked on 5 July. She said she may have heard from Maria in the afternoon while they were shopping and had bumped into one another.

45 Further in oral evidence Ms Chowdhury said that Mr Khouzame may have phoned her on 5 July and told her that if Ms Donovan calls for her pay, get her to pick it up. He didn't want any conversation about the matter amongst staff.

46 Mr George Khouzame said that on 5 July he learnt from Maria Tziotis that Ms Donovan was intending to take him to the Industrial Relations Commission over her cut in hours and that she would make him "pay up."

47 Mr Khouzame said he later asked Ms Montecinos if this was correct. Ms Montecinos agreed and said that Ms Donovan had told her that if her hours were cut she would take him to court.

48 Mr Khouzame claimed to have been upset by this and concerned that she might cause instability with the staff by pre-empting the changes being made to the shop. Mr Khouzame decided to contact Ms Donovan by phone in order to maintain a level of privacy. He left a message saying he had heard that she was taking him to Industrial Relations. He told her he wasn't concerned because he hadn't cut her hours, nor had he sacked her.

49 Mr Khouzame deposed to the conversation with Ms Donovan when she phoned back. She had confirmed to him that if he cut her hours she would take him to "industrial relations." Mr Khouzame accused her of threatening him. He said the hours had not been finalised and she would be given sufficient notice. She replied that she knew her rights. Mr Khouzame then said that this was about her attitude and if she was not happy, she should say so. He told her he didn't need workers talking behind his back and making threats. He asked her why she should continue working, if that was her attitude. Ms Donovan replied that she just wanted to maintain her hours to support her daughter. Mr Khouzame ended the conversation by asking her to come into the store and work it out. Mr Khouzame insisted that, at no stage, had he told Ms Donovan she was sacked or that she should not come back to work.

50 Mr Khouzame said that later that day Ms Whitelaw came to work and he greeted her with, "Hi Kyrie." She didn't respond. When he asked if she was okay, he said that Ms Whitelaw began yelling and said: Don't talk to me okay especially after you fired my mother! You're mean, rude and have no respect whatsoever! You don't have any morals. You act like your (sic) some dictator and can treat people the way you want. How dare you talk to my mother like that. You think you're the king and can treat people like shit.

51 Mr Khouzame claimed that he was shocked by this outburst. He said she was loud and rude and had questioned his integrity, morals and professionalism. He told her to leave the store as he would not tolerate her yelling at him in the store.

52 Mr Khouzame said that he then went back to the storeroom where Ms Whitelaw was sitting with Ms Montecinos. He didn't speak to her. Mr Khouzame said that Ms Whitelaw never returned to work and had never apologised for her outburst. He had never told her she was sacked, and in fact at the conciliation conference, he had offered to reinstate her.

53 Mr Khouzame further deposed that he advised his partner, Mr Karem about what had happened. They had agreed to arrange a meeting with Ms Donovan, but she had refused and was intending to proceed with her threat, no matter what.

54 In oral evidence, Mr Khouzame described Ms Donovan as having "bad motives" and of "holding him to ransom." He reaffirmed his version of the conversations with both applicants and denied ever sacking them.

55 Mr Ferras Karem, the other partner in the business, gave evidence of the events on 5 and 6 July. He confirmed that Mr Khouzame had informed him that Ms Donovan intended to go to "industrial relations" and that she had been confrontational and quite threatening. Mr Khouzame also told him that Ms Whitelaw had yelled abuse in front of customers and he had told her to leave the store.

56 They both agreed to arrange a "conciliation to clear the air." Mr Karem later spoke to Ms Donovan and asked for her version of events. She had explained that she would not accept a cut in her hours and that she had made inquiries with "industrial relations." Mr Khouzame said he had told her that they had no problem with her making inquiries. However there was never any intention to cut her hours. Mr Ferras informed the applicant that Mr Khouzame was upset as he felt he was being threatened and held to ransom.

57 Mr Karem then spoke to Ms Whitelaw. She told him that she believed she had been sacked. He told her that this was not the case, and that Mr Khouzame had only asked her to leave the store because of her abrupt and discourteous behaviour.

58 Mr Karem said he then proposed a meeting to discuss the matter. He had expected Ms Donovan to attend with an open mind. However, she refused and said she was going to proceed to the Industrial Relations Commission. Mr Karem said he had asked her to re-consider and not to go to court. Mr Karem said that he had endeavoured to resolve the situation, but Ms Donovan had been unwilling to co-operate.

59 In oral evidence, Mr Karem could not recall if he had asked Ms Donovan to apologise to Mr Khouzame. He denied saying to her that he would think about it over night. Rather, he said that "the ball was in her court" and to contact him.

60 Mr Karem emphasised that, at the time of the phone conversation, it was his belief that neither applicant had been sacked. He knew that there was tension and merely wanted to organise a resolution. Mr Karem agreed that he had paid Ms Whitelaw for the full shift even though she had only been there for five minutes. He said he did so because he only wanted to keep everyone happy.

61 Ms Maria Tziotis deposed that on 5 July 2004, she heard shouting coming from the dispensary and had turned to hear Ms Whitelaw yelling at Mr Khouzame. Ms Whitelaw had said "how dare you speak to my mother like that. Who do you think you are. You think that you are some kind of king and you treat people like shit." Mr Khouzame had then told Ms Whitelaw to leave the shop, as he was not going to tolerate her yelling and speaking to him in that fashion.

62 Ms Tziotis claimed she was shocked about what had gone on. Ms Whitelaw had been loud and abusive and the customers had looked shocked and dismayed. Ms Tziotis said Mr Khouzame was quite calm and, at no stage, had he said that Ms Whitelaw was sacked, fired or not to come back to work.

63 In oral evidence, Ms Tziotis said she believed that Ms Montecinos was also in the shop at the time. Ms Tziotis said that when she told Ms Khouzame about Ms Donovan going to "industrial relations" she had not used the expression that she was "going to make him pay up."

64 Ms Donovan submitted that these three applications all stem from the fact that Mr Khouzame had been told by Ms Tziotis about the phone call to "industrial relations." Two witnesses had given evidence that around 5 July they had believed that the applicant had been sacked. Ms Donovan said that if she hadn't been sacked, she would have turned up for work on the next day shift as she needed the income. All she wanted to do was to keep her job. Ms Donovan put that her fifteen year old daughter had been left disillusioned in her first job.

65 Ms Donovan stressed that she had made no threats. Even Ms Tziotis didn't see her inquiries to the Department as a threat. Ms Donovan claimed to have been separately victimised for making a phone call to inquire about her rights. As there was no award posted in the workplace, she did not know her Award entitlements. She said she had always acted professionally and was a good worker. Ms Donovan put that there was confusion and uncertainty over her hours of work and Mr Khouzame had not reassured her.

66 As to her daughter's case, Ms Donovan said she had been dismissed because of what had happened between herself and Mr Khouzame. Ms Donovan said that Ms Tziotis' evidence was lies. It was Mr Khouzame who had been yelling and he who had instigated the incident. All her daughter had said was "I did not like the way you spoke to mum." Ms Donovan submitted that her daughter did not use the words Mr Khouzame ascribed to her. Further, it was clear she had been sacked because her pay had been made up for the last shift. Ms Donovan denied writing her daughter's statements - they were all her own words.

67 Ms Donovan said she had originally sought reinstatement from Mr Khouzame, but believed that was now impossible. Mr Khouzame was aggressive and rude, and as a result she would not feel it was a safe and comfortable workplace for herself or her daughter.

68 Ms Donovan sought twelve months' remuneration as compensation for her victimisation claim and six months for her unfair dismissal claim. Ms Whitelaw sought six months compensation for her unfair dismissal claim.

69 Mr Raheb submitted that there was no breach of s210 of the Act as there was no victimisation. Ms Donovan did not have her hours cut, nor was she sacked.

70 Mr Raheb said that all of the witnesses who had believed the applicants had been sacked, never actually heard Mr Khouzame say so. The applicants did not want to resolve the situation after being invited to by Mr Karem. There was no evidence of either of the applicants seeking to mitigate their losses. In particular, Ms Donovan was "double dipping" by seeking compensation for unfair dismissal and victimisation.

71 The first question to be considered in this case is whether both applicants were, in fact, dismissed from their employment. If there was no dismissal it is axiomatic that there can be no unfair dismissal such as to enliven the Commission's jurisdiction to entertain the applicants' claims. An answer to this question can be easily distilled by reference to the evidence adduced in the case. This case does not require a consideration of the principles of constructive dismissal.

72 The most relevant difference in the evidentiary cases advanced by the parties was whether both applicants were told by Mr Khouzame on 5 July 2004 that they were sacked. Mr Khouzame denied absolutely that he had done so. The evidence of the applicants is directly contrary to this.

73 There is other evidence, however which is strongly supportive of both applicants' understanding that Mr Khouzame had dismissed them. That evidence included: 1. Ms Whitelaw's text message to her mother shortly after her conversation with Mr Khouzame in which she expressly said she had been sacked. 2. Mr Gardiner's evidence that he was told by Ms Montecinos on 5 July that Ms Donovan had been sacked. Mr Gardiner was a subpoenaed witness whose evidence I accept as both reasonable and credible.

3. Ms Montecinos' evidence that Ms Whitelaw had told her on 5 July that her mother didn't have a job and she didn't either. 4. Ms Montecinos' evidence that she believed Ms Donovan had been sacked. Ms Montecinos was a subpoenaed witness who had not wished to be involved and declined to give a statement in support of either party. 5. Both employees were paid up their wages for the shifts they had commenced, but not worked - strongly suggesting that their last pay was their final pay. 6. Ms Donovan did not attend for work on her next rostered shift. It was usual practice for the employee to be phoned if they didn't turn up. Ms Donovan wasn't phoned. This also suggests that she had been dismissed.

74 The Commission is therefore satisfied that both Ms Donovan and Ms Whitelaw had been dismissed on 5 July 2004. Their claims of unfair dismissal are competently before the Commission and will be determined as to their merits.

Were the applicants' dismissals harsh, unreasonable or unjust?

75 Neither party referred to any authorities of the Commission in support of their respective cases. I do however, believe it is necessary to place the applicants' dismissals in the appropriate legal context by reference to the legislative instruction of the meaning of harsh, unreasonable and unjust. This context can be gleaned from the following authorities.

76 In Byrne v Australian Airlines Limited (1995) 185 CLR 410 the expression 'harsh, unreasonable or unjust' was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: 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. 77 The expression was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power.

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made.

78 A Full Bench authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

79 I turn now to discuss the question of procedural fairness in the context of an unfair dismissal.

80 A recent Full Bench decision of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss the employee following allegations of serious misconduct. In Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 the Full Bench said at para 118: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. Indeed, in this case it is unlikely the matter would have traveled as far as it has if the records had been provided at an appropriate time during the interview process or at any other reasonable time prior to the hearing of the matter. In this context, we consider the denial of access to the actual documents forming the substance of the allegations to be most serious.

81 These observations reflect the statutory instruction found at s88 of the Act and the relevant authorities identifying the matters the Commission may take into account when determining an unfair dismissal claim. These matters include, but are not limited to, whether: (i) a reason for dismissal was given.

(iii) the employee was given an opportunity to make out a defense or give an explanation of his or her behaviour.

(iv) any warning of unsatisfactory performance was given.

(v) the employee sought, but was refused reinstatement or reemployment.

It is relevant to note that the Commission may take other matters into account which it considers relevant (s88(f)).

82 In Byrne & Anor v Australian Airlines, the High Court concluded that "it is clear that the use of an unfair procedure may result in a dismissal being harsh, unreasonable or unjust." To this authority may be added the weight of a number of Full Bench decisions of this Commission. In Antonakopoulos v State Bank (1999) 91 IR 385, the Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust .

83 The above reference to Buckman is Buckman v Burdekin (1998) 85 IR 415. In that case, the Full Bench said at p418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness. See also Wilson v Department of Education and Training (2000) 100 IR 1; Burke v McGirr (1995) 87 IR 54; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344.

84 At this juncture, I should say something about the credibility of the witnesses. In my opinion, the applicants' evidence is to be preferred where it conflicts with that of Mr Khouzame, Mr Karem and Ms Chowdhury. In particular, I regard Mr Khouzame's evidence as simply unbelievable. I do not accept him as a credible witness. I shall return to his evidence and its lack of credibility shortly.

85 Another aspect of the evidence craves comment. I found Ms Chowdhury's evidence to be unreliable. A number of examples serve to make this point. She said in her statement that she handed Ms Donovan her pay on 7 July, but later could not recall if she had actually done so. Mr Gardiner's evidence was that it was he who had done so. She also testified that there was staff talk on 5 July about a disagreement between Mr Khouzame and Ms Donovan. However, in oral evidence she couldn't recall if she was even at work that day.

86 Ms Chowdhury also said in her statement that, prior to Ms Donovan coming in to collect her pay she had not been "confronted by" Mr Khouzame or Mr Karem about the matter. Her later oral evidence was that Mr Khouzame phoned her to tell her he had prepared the pays and to get Ms Donovan to come in to collect them. He had added that there was to be no gossiping about the matter. In my judgement, Ms Chowdhury was far too willing to be an advocate in Mr Khouzame's cause and that her evidence became confused and contradictory as a result. As a consequence, I do not accept it.

87 I am comfortably satisfied that Mr Khouzame was rude, belligerent and aggressive in his dealings with both applicants on 5 July. His conduct, in my view, was appalling. To suggest that he felt threatened by Ms Donovan or that a sixteen year old girl would be abusive or aggressive to a mature aged man in a position of authority over her, was utterly implausible. I do not accept Mr Khouzame's version of the words used by Ms Whitelaw and believe she only said "I did not like the way you spoke to Mum." I am fortified to this conclusion by Mr Khouzame's reference for her in July 2003, in which he described her as polite and cheerful.

88 In my opinion, there can be no doubt that Ms Donovan and Ms Whitelaw were summarily and unfairly dismissed by Mr Khouzame in the following circumstances: Firstly, neither employee were given any notice of their dismissal. Secondly, I believe Ms Donovan was dismissed for inquiring with the Department of Industrial Relations about her legal entitlements under the Award. Thirdly, Ms Donovan was dismissed over the phone. Fourthly, Ms Whitelaw was dismissed for defending her mother when she said to Mr Khouzame, " I did not like the way you spoke to Mum ." Fifthly, neither employee was given any opportunity to defend themselves, nor given any opportunity to explain their conduct. Sixthly, Mr Khouzame relied on information provided by other employees, and twisted that information, without ever seeking any explanation from the dismissed employees themselves.

89 Both applicants had otherwise unblemished records of employment. Mr Karem, the other partner described Ms Donovan as "a good worker." I earlier referred to Mr Khouzame's glowing reference for Ms Whitelaw.

90 On any view of it, the dismissals of Ms Whitelaw and Ms Donovan were patently unfair, both substantively and procedurally, and as a consequence, were harsh, unreasonable and unjust within the meaning of Pt 6 ch 2 of the Act. I find accordingly. I will return shortly to the orders I propose to make in both matters.

VICTIMISATION CLAIM Out of Time Application

91 An application made under s213 of the Act must be made within 21 days of the alleged contravention of s210; that is within 21 days of the alleged victimisation: See s213(3).

92 The Commission may exercise its discretion to accept an application out of time. That discretion is exercisable under s213(4), which I quote: (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought.

93 Obviously, there is no doubt that Ms Donovan's application for relief from victimisation was filed out of time. She was dismissed on 5 July 2004 and the s213 application was filed on 13 August - 39 days later. The applicant sought to have the Commission exercise its discretion to accept her application out of time. I shall return to her reasons for the late filing shortly. Not surprisingly, the respondent opposed the application being accepted out of time.

94 As I apprehend it, there are no authorities of this Commission which have considered s213(4) of the Act and the Commission's discretion to accept an out of time victimisation application. It will be readily apparent, however, that s213(4) is in almost identical terms, and relevantly so for present purposes, to s85(3) of the Act - the provision dealing with out of time unfair dismissal applications.

95 That being so, and bearing in mind the synergy between the unfair dismissal provisions and the victimisation provisions of the Act (to which I later refer), I am of the view that consideration of s213(4) may be had by reference to the authorities on the general powers of courts to accept out of time applications and, more particularly, the powers of this Commission to accept an unfair dismissal application out of time.

96 There are, of course, general principles established by the Courts in respect to time limits and in particular the Commission's discretion to waive time limits. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J said at p551: The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates"… and at p552: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost (26). Second, it is oppressive, even "cruel", to a defendant to allow an action to be bought long after the circumstances, which gave rise to it, have passed (27). Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them (28). Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period (29), as the New South Wales Law Reform Commission has pointed out (30)… and at p553 …In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s. 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced". (35) But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires the extension.

97 More recently, a Full Bench of this Commission said in Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139: 12] Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the Act may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way: Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a "sufficient reason". Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a "sufficient reason": see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view. 13] Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".

98 Like in an unfair dismissal application, the onus is on the applicant to satisfy the Commission that there is a sufficient reason or reasons for an application to be accepted out of time. Ms Donovan gave the following reasons. Firstly, that after her dismissal she had been waiting for Mr Karem to contact her to discuss the matter, as he had promised. He did not do so. Secondly, she was unrepresented and was making inquiries about the appropriate section of the Act that such a claim should be filed under.

99 I now turn to each of the discrete provisions of s213(4) in the context of these reasons.

100 In my opinion, Ms Donovan's explanation that she was waiting for Mr Karem to contact her is a reasonable basis for concluding that a sufficient reason for the delay in filing has been established. I accept that Mr Karem had promised to get back to her and that he didn't do so.

101 Ms Donovan had hoped for a satisfactory resolution of her difficulties with Mr Khouzame through Mr Karem's intervention and was, at that stage, hoping to be reinstated. I would add that I believe it was not up to Ms Donovan to apologise to Mr Khouzame; but rather the reverse. I accept Ms Donovan's version of their conversation and, in doing so, find that his conduct and behaviour on 5 July was reprehensible and threatening. He had no right to conduct himself in such a fashion.

102 I note that the application was eighteen days late. This delay could not be regarded as unduly excessive and must be seen in the context of the overall dynamic of the circumstances at the time, including a less then satisfactory outcome to a conciliation conference before the Commission on 14 July.

103 In my view, the applicant's hardship, should her application not be accepted, is self evident. She is a single parent who relied on a second job to supplement her income to support her school aged daughter. She has not been able to secure alternative secondary employment. The fact that she lost her job through victimisation would of itself, I think, demonstrate that her hardship will be severe and profound.

104 On the other hand, there can be no hardship on the employer by accepting the application out of time as it was listed for hearing concurrently with the applicant's unfair dismissal application. The employer would have not suffered any significant additional costs by having to meet and defend the victimisation leg of this case.

105 For the aforementioned reasons, I find that the applicant has established a sufficient reason for the Commission to be satisfied that its discretion should be exercised such as to accept the application out of time pursuant to s213(4) of the Act. I find accordingly.

106 Ms Donovan's application for relief from alleged victimisation was made under Pt 1 ch 5 of the Act. For the purposes of this decision the relevant sections of the Act are found in ss210 and 213: 210 Freedom from victimisation

(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2002 , or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000, or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned.

107 It is plain that the processing of a victimisation application is a two staged exercise. Firstly, the Commission must make a finding as to the alleged contravention of s210 and secondly, if a contravention is established the Commission may, in the exercise of its discretion, make an order or orders for relief under one or more of the subsections in s213(2).

108 Two Full Bench decisions of this Commission have discussed, in some detail, the provisions of ss210 and 213 of the Act and the meaning of the term "victimisation." In Public Service Association of New South Wales v Teterycz (1998) 82 IR 172 the Full Bench adopted the reasoning in Davis v Amalgamated Television Services Pty Limited (1998) 81 IR 364 and said: The Full Bench of the Industrial Relations Commission of New South Wales ( Cahill J., Vice President, Hill, Maidment JJ. and Redman C.) considered these provisions in its decision in Graham Davis v Amalgamated Television Services Pty. Limited (IRC7028 of 1997, 22 June 1998, Unreported). The Full Bench said: "The word "victimise" is not defined in the section nor anywhere else in the Act. This is in contradistinction to the precursor provisions of the 1991 Act. The relevant provisions of the 1991 Act were contained in s 481 which relevantly provided: Victimisation: offence 481(1) An employer, or an organisation, must not victimise a person because: (a) the person does not belong to an organisation of employees; or (b) the person has refused to engage in industrial action; or (c) the person is a member of an organisation of employees or is an officer or delegate of an organisation of employees or is otherwise an elected representative of employees; or (d) the person is a member of a Conciliation Committee; or (e) the person claims a benefit of an award or agreement to which the person is entitled; or (f) the person has informed any person that a breach or a suspected breach of an award or agreement has been committed by the employer; or (g) the person has appeared as a witness or has given evidence in proceedings, relating to an industrial matter; or (h) the person has engaged in, or contemplates engaging in, any public or political activity (not being an activity that interferes with the performance of duties as an employee); or (i) the person, after applying for (and being unreasonably refused) leave without pay for the purpose, is absent from work through being engaged in duties as a member of an organisation of employees in respect of a matter affecting the industry in which the employee is working or in other duties as a member of a Conciliation Committee. (2) An employer victimises a person if the employer: (a) dismisses or threatens to dismiss the person from employment with the employer; or (b) alters or threatens to alter the position of the person in his or her employment with the employer to the person's prejudice; or (c) otherwise injures or threatens to injure the person in his or her employment with the employer; or (d) refuses to employ the person. Victimisation by an organisation (3) An organisation victimises a person if the organisation: (a) advises, encourages or incites an employer to victimise the person; or (b) takes or threatens to take industrial action or any other action against an employer with intent to coerce the employer to victimise the person; or (c) takes or threatens to take action having the effect directly or indirectly of injuring the person in his or her employment. . . . We observe in passing that the ambit of the 1940 Act was narrower than that of the 1991 Act. In our opinion, the failure to define "victimise" or "victimisation" in the 1996 Act does not have the result of narrowing the definition in the 1991 Act. Indeed, the omission probably has the effect of extending the former meaning so as to comprehend any act of victimisation within the meaning of that word as ordinarily understood. The words "victim" and "victimise" are defined in the Shorter Oxford English Dictionary (Vol 2) as: Victim

1. A living creature killed and offered as a sacrifice to some deity or supernatural power.

2. A person who is put to death or subjected to torture by another; one who suffers severely in body or property through cruel or oppressive treatment.

b. One who is reduced or destined to suffer under some oppressive or destructive agency.

c. One who perishes or suffers in health, etc from some enterprise or pursuit voluntarily undertaken. d. In weaker sense: one who suffers some injury, hardship, or loss, is badly treated or taken advantage of, or the like. Victimise 1. To make a victim of; to cause to suffer discomfort, inconvenience, etc; to cheat, swindle, or defraud.

2. To put to death as, or in the manner of, a sacrificial victim; to slaughter;

b. To spoil or destroy (plants) completely. In our opinion, it is consistent with the objectives of the section and the statutory changes in 1996, that the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". So far as a prospective employee is concerned the word "victimise" must be construed in the context of the word "prospective". In this respect s213(2)(d) comprehends the remedy of an order requiring the employer to employ the "prospective" employee, so that "victimise" must also encompass, at the lowest, a refusal to employ. Furthermore, section 213(2)(e) comprehends the remedy of an order requiring the employer not to carry out a "threat" to victimise an employee and for that to have any application and effect "victimise" must be taken to comprise conduct involving threats to victimise by the employer. However, it is unnecessary in this case to decide the full ambit of the word "victimise"." We would, with respect, adopt that reasoning for present purposes.

109 I would respectfully adopt the reasoning and conclusions of these decisions and would make these additional observations.

110 It seems to me that in a particular set of circumstances, there may be features of an unfair dismissal case which are similar to, and raise similar considerations, to a case prosecuted by an employee under Pt1 ch5 of the Act. For example a dismissal might be found to be unfair based, inter alia, on the victimisation of the employee. Conversely, the ultimate victimisation of an employee might well be said to be his/her dismissal.

111 That there is some overlap between the two statutory provisions is self evident by the reinstatement, reemployment and compensatory remedies available under both sections.

112 As a result of some research, I have found no decisions which deal directly with concurrent proceedings for victimisation and unfair dismissal and how the remedies under both sections might be determined in the event of findings in favour of an applicant. That being said, it would seem beyond doubt that the remedies available under both sections can be pursued concurrently by an applicant against the same respondent.

113 The corresponding provisions in the 1991 Act, (which are not relevantly different to the 1996 Act) were considered by Schmidt J, in Nisbett v Kilfoyle t/as Kilfoyle Earthmoving (1996) 67 IR 214. Her Honour said at p 218: Both sections 246 and 482 of the Act provide for remedies of reinstatement and compensation. That the circumstances of an alleged dismissal may properly give rise to proceedings under either or both section 246 or section 284 of the Act is obvious, (see Entertainment Distributors). It is of course the case that the Act provides both remedies and does not require an individual to make any election between them. Both may be pursued.

114 It follows therefore that Ms Donovan is, not only entitled to bring proceedings under both sections, but is entitled to seek relief under both sections in the same set of circumstances, should she establish a case of victimisation. As I have already observed the act of unfair dismissal might well be said to be the ultimate act of victimisation. I do not see how it could not be so construed.

115 At this juncture, I would reject Mr Raheb's contention that the application was incompetent because these was no victimisation. That is so, the submission went, because the applicant had not had her hours reduced or been dismissed. With respect, Mr Raheb misunderstood how the allegation of victimisation arose. It was not about having her hours reduced, but rather the applicant suffered some detriment as a consequence of her phoning the Department to inquire about her rights and for then having been dismissed for informing other employees of what she had done.

116 The Commission has already made two findings concerning the dismissal of Ms Donovan. Firstly, that she was unfairly dismissed by Mr Khouzame on 5 July 2004 and secondly, the reason for her dismissal was that she had inquired about her rights as an employee and told others of these rights.

117 From these findings, it seems inescapable, that there has been a contravention of the Act under subclause (f) of s210. I find therefore that Ms Donovan was victimised for the purposes of subcl(f) of s210 of the Act when she was dismissed by Mr Khouzame on 5 July 2004 for informing Ms Montecinos and Ms Tziotis of an alleged breach by the employer, of an industrial instrument, being the hours provisions of the relevant Award.

118 The applicants do not seek reinstatement. In view of the conduct of the respondent and the breakdown in the relationship between him and the applicants, I do not believe it would be in anyone's interests to restore the employment relationships. I find therefore that reinstatement would be impractical in both cases.

119 In deliberating on what orders the Commission should make in this case, I have had regard to both applicants' unblemished records of employment, their periods of service, their ages and the degree of loss suffered by them. I also accept that both applicants have sought to mitigate their losses - albeit unsuccessfully to this point: see s89(6) of the Act.

120 I propose to make an order pursuant to both ss89(5)(6) and 213(2)(c) of the Act in the sum of 32 weeks' pay at $260.00 per week being the average weekly pay for the last six months of the applicant's employment.

121 I make this order without apportioning any specific amount for the relief sought in the two claims. This is so for two main reasons. Firstly, as earlier discussed, in my judgement there is an overlap in the factors to be taken into account in an unfair dismissal case and a victimisation case of this type. Secondly, this overlap makes it impossible to strictly delineate the relief that is available under both sections of the Act in the event an applicant succeeds under both headings.

122 Even if I be wrong about this approach, I believe that as a matter of the proper administration of justice, that an order of the amount so determined is appropriate and justified in the particular circumstances of this case.

123 I propose to make an order in Ms Whitelaw's favour of $1500.53 being the uncontested amount earned by her in the previous six months prior to her dismissal on 5 July 2004.

Orders 1. Pursuant to ss89(5)(6) and 213(2)(c) of the Industrial Relations Act 1996 the Commission orders that the respondent, Kensington Pharmacy and Newsagency, shall pay to the applicant, Ms Lynette Donovan, an amount of $8320.00. 2. Pursuant to s89(5)(6) of the Industrial Relations Act 1996, the Commission orders that the respondent, Kensington Pharmacy and Newsagency shall pay to the applicant, Ms Kyrie Whitelaw, an amount of $1500.53. 3. The amounts so ordered in 1 and 2 above are to be paid within 21 days of today. 4. These proceedings are now concluded.

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.