Application by Earl Lee Roy Green re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

This is an application, pursuant to s84 of the Industrial Relations Act 1996 (the Act), filed by Mr Earl Lee Roy Green, seeking relief in respect to his alleged unfair dismissal by Michael Mitry trading as "Chicka's the Salon" on April 15, 1999.

At directions and conciliation proceedings on June 7, 1999, Mr Green appeared in person and the respondent was represented by Mr J Welch, Agent.

During preliminary submissions, Mr Welch offered the applicant his job back. The applicant rejected the offer and I directed the parties to confer. Upon resumption, the applicant requested, and was granted, an adjournment to seek legal advice. At a report back on June 21, the Commission was advised that an offer of re-employment or two weeks' wages, as an alternative, had been made by the respondent. The applicant now claimed underpayment of wages, access to his accrued long service leave and four weeks' wages as compensation for his dismissal.

The Commission advised the applicant of his possible rights under s84 of the Act and such other rights and obligations in respect to the other matters outside my jurisdiction. Again, at the request of the applicant, I adjourned the matter for report back on July 8.

At the report back, the applicant was assisted by his partner, Mr L Mears, who advised that the applicant wished to have his unfair dismissal application heard. The Commission thereupon issued directions for the filing and service of affidavit material and set the matter for hearing on August 31, 1999.

The applicant, Mr Earl Lee Roy Green, is twenty-five years old and has been employed by the respondent, as a hairdresser, for seven years and three months; commencing, and completing, an apprenticeship during this time.

His dismissal was said to have occurred on April 15, 1999, in circumstances where the applicant returned late from a lunchtime doctor's appointment and was angrily told by Mr Mitry to "take your things and leave". The applicant did so and phoned back the same day to clarify his situation (the time he phoned is disputed). Mr Mitry was alone in the salon and too busy to speak to him at that time. He called again the next day and was asked by Mr Mitry "where the fuck are you?" He said he was at home. The subsequent conversation is disputed, although it would appear the applicant believed, and told Mr Mitry, that it was best if he resigned.

The applicant claims he was dismissed by Mr Mitry on April 15; whereas the respondent claims he merely sent the applicant home and was expecting him back at work the next day. The applicant either, abandoned his employment, or resigned. No dismissal was effected or intended.

The applicant relied on a written statement (Exhibit "1") and gave oral evidence. He described his relationship with his employer as a friendship over many years which soured in late 1998, when the applicant revealed his homosexuality to Mr Mitry. He said that they never discussed this issue, and Mr Mitry "ignored it" (T.p19).

He gave evidence of the events on Thursday, April 15, 1999. He said he was twenty minutes late returning from a lunch time doctor's appointment. He said he was late because the doctor asked if an elderly lady, requiring a test, could go ahead of him. At the salon, a client had been kept waiting and Mr Mitry was angry. Mr Mitry said "take your things and leave" without him being able to offer an explanation. The applicant called Mr Mitry at 6.00pm, but he was too busy to talk to him. He said he phoned again at 9.00am the next day and Mr Mitry said "where the fuck are you?". The applicant said Mr Mitry was now aware of the reason why he was late (T.p20) but told him to take the weekend off to consider his position.

The applicant attested that he had never received any written warnings, but had received a verbal warning for taking two days off when Mr Mitry knew he was sick in hospital. He said he was never paid unless he worked and his hours were flexible. The applicant said he was unemployed for five weeks and worked for a week - unpaid - at another salon, but did not stay, because he did not agree with what was going on there.

The applicant claims he was underpaid by Mr Mitry. He said it was always his intention to remain employed at the salon, until he was eligible for long service leave after ten years.

In cross examination, the applicant agreed that he was intending to make a doctor's appointment on April 15, but the doctor could see him straight away; so he did. He said that Mr Mitry was annoyed, but had not said that he was sacked, or he was being terminated (T.p24).

In the conversation of April 16, he conceded that Mr Mitry had not told him that his employment was terminated, but rather take two days off to make a decision. The applicant said he "assumed" he had been fired on April 15 (T.p25) and that his own decision was to not go back.

Mr Michael Mitry gave oral evidence. He said that while the applicant had been a good apprentice, his performance had deteriorated in the few months prior to the termination of employment. He was turning up late for work and taking long lunches (T.p27).

On April 15, he returned from a 1.00pm lunch at 2.45pm and a client had been booked at 2.00pm.

He conceded he was annoyed and that the applicant told him he couldn't work on Saturday. Mr Mitry said his words were "Okay, well you might as well just take your bag and you can go home now" (T.p28). The applicant gave no reason why he couldn't work on the busy day - Saturday.

Mr Mitry gave evidence that the applicant called him about 3.30pm (not 6.00pm) but he couldn't talk to him and said to call back in half an hour. He never did.

He expected him back at work on Friday, April 16 but the applicant rang at 10.30am (not 9.00am). Mr Mitry's reaction was "Earl, where the fuck are you?". The applicant said he was at home - Mr Mitry said he was supposed to be at work. The applicant then said "I'm not coming back, I've decided to resign" (T.p29).

He denied telling him to take a couple of days off to think about it. The applicant gave no notice of resignation (T.p29).

In cross examination, Mr Mitry described the applicant as a friend, who he often advanced money to when he was in financial difficulty. He said that he, and the clients, were happy with the applicant and together they had both built up a "successful little business" (T.p31).

Mr Mitry said that a friend of the applicant's had told him that the applicant was homosexual. It didn't bother him as there were "a lot of gay people in hairdressing" (T.p32).

In re-examination, Mr Mitry reiterated that the applicant's work deteriorated in the last year of employment and the incident of April 15 was the "final straw".

Mr Mears submitted that the experience of "coming out" to his family, and Mr Mitry, concerning his sexuality had been distressing for the applicant. While the applicant may have been occasionally late for work, he worked many unpaid hours. Mr Mitry had acted on "a split second decision", had changed his mind and then put the onus on the applicant as to whether he was to come back.

Mr Welch, for the respondent, described the situation as unfortunate - a good and long standing working relationship had now deteriorated and broken down.

He submitted that the applicant was not dismissed, but had either resigned, or abandoned his employment. There was evidence of unsatisfactory performance and on April 15, the applicant's late return was the "last straw".

Mr Welch submitted that the application should be dismissed and costs awarded in favour of the respondent. Costs of $1750 were sought on grounds that the application was frivolous and the applicant was offered re-employment on two occasions. In the alternative, if compensation is considered appropriate, the alternative employment, secured by the applicant, should be taken into account.

Not unexpectedly, this case exposed the common difficulties encountered where a litigant is unrepresented. The courts (including this Commission) have adopted a general guiding principle in proceedings where a party is unrepresented. This principle is to ensure all parties - both represented and unrepresented - are given the benefits of the rules of natural justice. While this principle has been more often espoused in the criminal jurisdiction, it is, to my mind, no less relevant and apposite to proceedings before this Commission under Chapter 2, Part 6 of the Act.

In Regina v Gidley[1] the Court of Criminal Appeal said:

"The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should extend those rights or how he should conduct his case".

In Regina v Zorad[2] the New South Wales Court of Appeal held that:

"1 An accused who elects to be unrepresented is not entitled because of that election to be given any advantage not enjoyed by a represented person.

2 The duty of a trial judge to give an unrepresented accused such information and advice as is necessary to ensure that he has a fair trial:

a) would include, if it became necessary, an explanation as to the form in which questions should be asked, but it is not to put the question in that form for the accused.

b) would include the giving of advice that, notwithstanding a ruling on the voire dire as to the voluntariness of admissions, the accused is permitted to raise the same factual matters before the jury: such advice is necessary to ensure that the unrepresented accused is put in a position where he can make an effective choice as to the exercise of his rights but does not extend to advising him how this may be done.

c) would include, where comment was going to be made in relation to the accused's failure to comply with the rule in Browne v Dunn, advice of the existence to that rule".

Within the bounds of judicial propriety, and to ensure justice to all parties, the Commission is satisfied that the applicant was appropriately advised of his rights under the Act, and his obligations in pursuing such rights. Despite their understandable limitations, the Commission was able to draw, from the applicant and Mr Mears, those issues which were relevant to my determination of the facts and the law in this case. I am bound to comment that Mr Welch displayed commendable compassion and restraint during the proceedings. His sympathetic conduct ensured smooth and largely uncomplicated proceedings - for which he is to be praised. The Commission appreciated his professionalism.

The undoubted question for the Commission to determine in this case is whether the applicant was dismissed, or whether he resigned, or abandoned his employment? It is axiomatic that, if I find in favour of the latter, there is no jurisdiction for the Commission to entertain a claim for relief pursuant to s84 of the Act. I note also that, even if I find that a dismissal had occurred, such dismissal might not necessarily be found to be "harsh, unjust or unreasonable" within the meaning of Chapter 2, Part 6 of the Act.

Such considerations would inevitably flow from the events of April 15 and whether this incident, together with the allegations of poor performance, justified dismissal. For obvious reasons, Mr Mears did not describe the applicant's termination of employment as a constructive dismissal. However, I am in no doubt that this was what was being alleged. This being so, it is helpful to briefly refer to the authorities which have discussed the concept of constructive dismissal. A useful and contemporary starting point is Allison v Bega Valley Council where a Full Bench of the Commission said:

"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".[3]

Macken, J. speaks of a resignation without "hint of pressure or threat". In Bayley Trading Co and NSW Sales Representatives and Commercial Travellers Guild:

"Just as it is a fundamental requirement for an employment contract to be entered into by the genuine consent of both parties to the contract - a consent untainted by any hint of pressure or threat - so too, it must be terminated by a resignation equally untainted by any such threat. Where a contract is terminated otherwise, it amounts to constructive dismissal".[4]

I have also relied on the developed principles for establishing a constructive dismissal in decided cases over the last twenty years. Such lead cases include Western Excavating (ECC) Ltd v Sharp[5] and St Vincents Hospital Sydney Pty Ltd v Harris[6], Mohazab v Dick Smith Electronics[7], Claric 218 Pty Ltd t/as Sanity Music v Meldrum[8] and Lorna Britton v Riverstone Public School[9].

It appears to me to be largely irrelevant that the resignation of the employee was given one day after the applicant claims he was dismissed. Even so, the authorities make it clear, a resignation must be given freely, without taint or coercion. It is plainly evident that the resignation was offered in the context of the unpleasant events of Thursday, April 15. In arriving at this conclusion, I can put the test in an alternative way - Would the resignation have been offered if the Thursday and Friday incidents had not occurred. I think not. The applicant had no motivation for resigning; indeed, he had every reason not to; including his admitted financial difficulties and his desire to ensure ten years service for the purposes of long service leave.

In these circumstances, it is hard to imagine that the resignation was given freely and untainted.

Having so found I return to the events of Thursday and Friday, April 15 and 16. In my mind, the test of whether the employee had been dismissed is able to be gleaned from both the ordinary meaning of the words used on April 15 and the genuinely held understanding by the applicant of what the words were intended to convey. The answer to both these propositions might, but not necessarily be, strengthened by consequential conversations or incidents.

My approach, as discussed in Yopp and Advanx Motors[10], is to apply a test of what any reasonable person might regard as the ordinary meaning of the words used and the intention they were meant to convey.

Like its predecessors, the 1996 Act does not define the term "dismissal". However, under the 1991 Act in Smith v Director General of School Education[11] a Full Bench of the then Industrial Court of New South Wales, looked to the ordinary meaning, as defined in the Oxford English Dictionary. The Court said at p219:

"The Industrial Relations Act does not define 'dismissal', but, as we have said, s245(5) includes the concept the Crown's dispensing with the services of an employee. It is to the ordinary meaning of 'dismiss' that assistance may be obtained; the Oxford English Dictionary, 2nd ed (1989) defines the word in appropriate respects as follows:

2 a. ... To send away (a person); to give permission to go; to bid depart.

3 a. ... To send away or remove from office, employment, or position; to

4. To deprive or disappoint of or from some advantage"

We apprehend no real issue may be taken with the ordinary meaning of the word 'dismissal' as so applied to s245, and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned. The terms of s245 of the Industrial Relations Act would suggest no latent ordinary meaning of 'dismissal' suggested by Brereton J in Ex parte Wurth as being 'the termination of services by the employer without the employee's consent'; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal: see Willis (at 136, 137), Ex parte Wurth (at 59,60), Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild Re Dismissal [1979] AR (NSW) 392 at 393 and Western Excavating (ECC) Ltd v Sharp [1978] 1 CR 221 at 225,226)."

It is evident that the words "take your things and leave" (or words to that effect) are not seriously disputed. In my view, these words convey a similar meaning and intent as the definition earlier cited, namely "to send away from employment". It is further not contested that they were uttered in an angry tone. I am satisfied that it is open for a reasonable person to conclude that these words were intended to end the employment relationship at the employer's initiative.

* no follow up inquiry was initiated by the employer. Whether the applicant called at 3.30pm or 6.00pm is immaterial. He did call that day, but Mr Mitry was unable to speak to him;

* the respondent seems to have become more conciliatory in the call on April 16;

* why would he be sent home without being given an opportunity to explain his conduct? The respondent was clearly angry and acted precipitously in sending him home;

* the respondent's own evidence, that this was "the last straw", can only mean that he was intending to act in a conclusive and final way - as distinct from tolerating or giving a warning about the conduct.

For these reasons I am able to find that the actions of the employer on April 15, 1999, constituted a constructive dismissal.

In arriving at this conclusion I consider apposite the factors taken into account by Hall, CIC, in Achal v Electrolux Pty Ltd[12], when finding that a resignation given by an employee in an emotional state was not fatal to a finding of constructive dismissal. The Chief Commissioner further said at p240-241:

"In my view whether the dismissal occurred on 3 February in the circumstances which I have outlined above or by the Respondent's refusal to recognise the withdrawal of the resignation, the dismissal was unfair. The factors to which I have had regard in coming to that view are

(c) the circumstance that Messrs Smith and Davis, who appear not to have entered upon their discussions with the Applicant with a view to dismissing her, seem to me to have seized on the "resignation as a convenient means of freeing themselves of a situation with which they could not cope,

(d) the consequences of the dismissal to the Applicant".

I am also similarly satisfied that the applicant genuinely believed he had been dismissed. He tried to talk to Mr Mitry but wasn't able to. This left him with the clear impression that his services were no longer required.

I consider this question set against the following factual matrix:

* had over seven years' service with the respondent;

* was regarded as a good employee, who was liked and appreciated by the clients - See the very favourable reference from the Principal of the Sacred Heart School, Cabramatta (Attached to Exhibit "1");

* had, in Mr Mitry's words, helped build "a successful little business" (T.p31);

* was experiencing a stressful and difficult personal situation;

* is a young man, with little work experience outside of the seven years' of employment with the respondent;

* had received no written or formal warnings of poor performance;

* was given no opportunity to explain his late return from lunch on April 15.

I note also that there is no evidence that the employer's business reputation was damaged or the business suffered financially as a consequence of the applicant's behaviour. In my view, a two person business, with one not pulling his weight, would hardly last very long, or at the very least, show signs of decline. No such evidence was advanced on this aspect.

On any view of it, I am persuaded that the actions of the employer were unreasonable in the circumstances. While I accept, Mr Mitry was entitled to be annoyed, it was a decision (defined by me as a constructive dismissal) which was hastily made, unwarranted and disproportionate to the gravity of the offence committed. It can therefore be also characterised as "harsh" within the contemplation of the Act.

In judging the circumstances here disclosed, I am assisted by the definitions of the terms "harsh, unjust and unreasonable", found in decisions of members of this Commission and the Australian Industrial Relations Commission.

In a recent decision of Ross, VP in the Australian Industrial Relations Commission, his Honour in Rose v Telstra Corp Ltd[13] said at p7:

"In my view, for the purpose of s.170CG, a termination of employment may be: HARSH, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct; UNJUST, because the employee was not guilty of the misconduct on which the employer acted; and/or UNREASONABLE, because it was decided on inferences which would not reasonably have been drawn from the material before the employer."(9)

Connor, C. in Parker v Capital Painters & Decorators Pty Ltd[14] defined the terms thus:

"harsh - too severe, having regard to all the circumstances.

unreasonable - immoderate, excessive or extravagant.

unjust - unfair, inequitable, undeserved or biased."

I am therefore able to properly conclude that the applicant's termination of employment was "harsh and unreasonable" and consideration should be given to compensatory relief.

Before doing so, there is one other aspect of this case which deserves consideration. I do so, to ensure no misunderstanding and to comply with my statutory task of ensuring justice is afforded to all parties. The matter concerns a claim by the applicant that he was dismissed because of his declared homosexuality. Strictly speaking, it is unnecessary for me to make a finding on this claim, as I have already found in favour of the applicant on another basis.

Nevertheless, in ensuring that justice is afforded to both parties, Mr Mitry's position, and the claim against him, requires consideration and repudiation.

There is no doubt that dismissal as a result of an employee's sexual preference is unlawful and would, of itself, be likely found to be "unjust" within the meaning of Chapter 2, Part 6 of the Act. Such a proposition is founded on the theme and legislative intention of the Act to prevent and eliminate discrimination in the workplace. Nothing could be clearer from object (e) of the Act:

"f) to prevent and eliminate discrimination in the workplace and in particular to ensure equal remuneration for men and women doing work of equal or comparable value".

There is also a general mandatory instruction in s169. The Commission, in the exercise of any of its functions is to take account of issues of discrimination:

"SECTION 169 ANTI-DISCRIMINATION MATTERS

The Commission must, in the exercise of its functions, take

into account the principles contained in the Anti-

s169 is not limited to discrete matters before the Commission. It is all encompassing. Ipso facto, it must apply to proceedings under Chapter 2, Part 6.

In addition, scattered throughout the Act, are particular references to the Commission dealing with issues of discrimination:

See s19(3)(e) Review of Awards; s35(d) Requirements for approval of enterprise agreements; s158 Particular Deputy President to deal with discrimination in the workplace; s167(2) Intervention by President of the Anti Discrimination Board.

In drawing the linkage to the Anti Discrimination Act, it is appropriate to consider one of the definitions of discrimination under that Act and which is apposite to these proceedings:

It is unlawful for an employer to discriminate against an employee on the ground of homosexuality:

a) in the terms or conditions of employment which the employer affords he employees,

b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

c) by dismissing the employee or subjecting the employee to any other detriment (my emphasis).

In my view, a dismissal based on a prohibited ground of discrimination under the Anti Discrimination Act, would almost invariably be a dismissal found to be "harsh or unjust or unreasonable" within the meaning of the Industrial Relations Act 1996.

Was the applicant dismissed because of his homosexuality?

In reviewing this case, I find no evidence that the applicant's homosexuality was a factor, let alone a primary factor, for his dismissal. While he may genuinely believe it to be so, I am confident it was an unfounded and unwarranted belief. There is no doubt the applicant was experiencing considerable stress and emotional upheaval following his decision to declare his homosexuality to his family and employer. Mr Mitry had earlier recognised that something was wrong - but the applicant wouldn't discuss it.

The applicant's response and emotions are perfectly understandable.

Nevertheless, I accept the evidence of Mr Mitry, as honestly given, when he said the applicant's homosexuality didn't bother him. Indeed, this seems in accord with his evidence that he already knew about it, having heard from a friend of the applicant's (T.p32). It is also consistent with his evidence that, he and the clients, were happy with the applicant's work (T.p31).

At worst, Mr Mitry's reaction to the applicant's sexuality was indifference. However, I am more inclined to the view that it made no difference and that Mr Mitry was entirely comfortable with it.

The applicant did not seek reinstatement. I am satisfied, particularly with the breakdown in the long term relationship evidenced in these proceedings, that reinstatement would be impractical and inappropriate.

Despite having seven years' service, the applicant only sought seven weeks' compensation. He was advised of the maximum compensation that might be awarded - but declined to claim it. He sought only the period he was unemployed. I have also taken into account the fact that the applicant was not entirely without fault on April 15. As earlier discussed, I am also of the view that his belief that he had been dismissed because of his homosexuality was mistaken and a view not reasonably open to him.

Accordingly, and in light of the circumstances earlier dicussed, I propose to order compensation equivalent to four weeks' wages at $465.20 a week (as disclosed in the application).

1. The words used by the employer to the applicant on April 15 "take your things and leave" are open to a conclusion that the applicant was dismissed;

2. The applicant genuinely believed he was dismissed;

3. The termination of employment was a constructive dismissal within the contemplation of the authorities which have considered the concept, in particular Allison v Bega Valley Council[15];

4. The dismissal was harsh and unreasonable within the meaning of Chapter 2, Part 6 of the Act;

5. The applicant was not dismissed for a prohibited reason of discrimination under the Anti Discrimination Act, 1977;

6. Reinstatement is inappropriate and impractical;

8. It follows that the respondent's application for costs is dismissed.

Pursuant to s89(3) of the Industrial Relations Act, 1996, the Commission orders:

1. Michael Mitry, trading as Chicka's the Salon, shall pay to the applicant, Earl Lee Roy Green, an amount of $1,860.80 representing four weeks' salary at $465.20 a week.

2. The above payment shall be made within twenty one days' of today.

Court of Criminal Appeal (1984) 3 NSWLR 168

Court of Criminal Appeal (1990) 19 NSWLR 91

Bayley Trading Co and NSW Sales Representatives

Macken, J. 1979 AR 392

Lee, Moore and Marshall, JJ. 28 November 1995 (62 IR 200)

Claric 218 Pty Ltd t/as Sanity Music v Meldrum

Hall, CIC: 25 May 1993 (50 IR 236)

Vol 45 AILR 3-966

Parker v Capitol Painters & Decorators Pty Ltd

Connor, C. 12 September 1996 (68 IR 100 at 104)

[1] Regina v Gidley - Court of Criminal Appeal (1984) 3 NSWLR 168.

[2] Regina v Zorad - Court of Criminal Appeal (1990) 19 NSWLR 91

[3] Allison v Bega Valley Council - Appeal: Peterson, Marks, JJ., Connor, CC. 63 IR 68

[4] Bayley Trading Co and NSW Sales Representatives and Commercial Travellers Guild - Macken, J.

[5] Western Excavating (ECC) Ltd v Sharp - Lord Denning (1978) ICR2213

[6] St Vincents Hospital Sydney Pty Ltd v Harris - 28 May 1998 (unreported)

[7] Mohazab v Dick Smith Electronics - Lee, Moore and Marshall, JJ. 28 November 1995 (62 IR 200)

[8] Claric 218 Pty Ltd t/as Sanity Music v Meldrum - 23 July 1998 (unreported)

[9] Lorna Britton vRiverstone Public School - Appeal: Schmidt, J. Sams, DP. McLeay, C. Matter

[10] Eileen Maria Yopp and Advanx Motors Pty Ltd - Sams, DP. Matter IRC 98/4592 - 7 May 1999

[11] Smith v Director General of School Education - Fisher, CJ. Bauer and Hungerford, JJ (51 IR 204)

[12] Achal v Electrolux Pty Ltd - Hall, CIC: 25 May 1993 (50 IR 236)

[13] Rose v Telstra Corp Ltd - AIRC: Ross, VP. 4 December 1998 - Print Q9292 Vol 45 AILR 3-966

[14] Parker v Capitol Painters & Decorators Pty Ltd - Connor, C. 12 September 1996 (68 IR 100 at 104)