Galvin v Renito Pty Ltd

· the applicant's assurance that he was keen to accept the challenge of putting the Richmond branch back on the road to success after a less than acceptable performance by the previous manager

· Ms D'Enett's reliance on the applicant's ability to ensure sales figures that met the required standard

· the standard had not been met and as a result the applicant's position as business manager was under review

· it was apparent from "two unfavourable branch visitor's reports .... that the effective business control and business development functions are not being performed, resulting in poor sales performance"

· ineffective control, direction and co-ordination of staff

· failure to make required quota of daily telemarketing calls

· problems in maintaining staff harmony and motivation

· current customer service level at Richmond branch "will not be tolerated".

18 The memorandum suggested a variety of solutions to the problems identified including

· making the required quota of daily telemarketing calls

· developing target area of salons within twenty minute radius of warehouse

· monitoring performance and reviewing progress of sales team

· promoting tele-sales as a positive business creator

· delegating showroom and storeroom cleanliness and stock placement

· maintaining adequate records, including "outstanding" file, delivery sheet file and equipment repair/return register

· demonstrating to staff company policies and procedures.

19 On 25 and 26 July 1998 the applicant attended a conference at the Novotel Hotel in Pyrmont. After the conference Ms D'Enett said to him words to the following effect: "What's wrong? You look terrible." 20 On 28 July at the request of Ms D'Enett the applicant attended head office and Ms D'Enett again expressed concern about the applicant's appearance. In paragraph 17 of his affidavit the applicant describes this as follows: "She asked me why the profit at the Richmond branch was not as high as the respondent would like it to be, why I looked so terrible and whether I had any personal problems." 21 On 11 September 1998 Ms D'Enett attended at the Richmond office and at her suggestion the applicant signed an employee resignation form. 22 Termination at the initiative of the employer The respondent asserts that the applicant resigned and denies termination at the initiative of the employer. Nevertheless, Mr Simmons admits he directed Ms D'Enett to extract a resignation or dismiss the applicant and it is clear that Ms D'Enett obtained a signed resignation in circumstances which I am satisfied amount to a termination of employment at the initiative of the employer. The applicant filled out three employee resignation forms. The first form was endorsed by the applicant with the words "forced resignation". It was rejected. The second form was endorsed by the applicant with the words "conditions agreed is 4 weeks and holidays and 1 week worked." It too was rejected. The third form gave reason for leaving as "personal". It was "accepted". 23 I am satisfied · "the action of the employer (was) the principal contributing factor which (led) to the termination of the employment relationship":Mohazab -v- Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205 · ".... the act of the (respondents) (resulted) directly or consequentially in the termination of the employment and the employment relationship (was) not left voluntarily by the employee": Rheinberger -v- Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160. 24 I find that the decision and direction of Lewis Simmons and the extraction of an involuntary resignation by Victoria D'Enett from the applicant on 11 September was a termination of employment at the initiative of the respondent, Renito Pty Ltd. 25 Onus of proof Provisions similar to s170CK have long existed in employment law. In Australia s5 of the Conciliation and Arbitration Act (1904) (Cth) made it a criminal offence for an employer to dismiss an employee by reason of specified circumstances. In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266 - 271 Northrop J discussed at length those provisions and earlier authorities relating to them. He set out a passage which he held later (in Johns v Gunns Ltd (1995) 60 IR 258 at 267) had equal application in cases where the predecessor of s170CK(2)(a) applied. In Heidt at 268 he said: "The provisions of s.5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge." 26 In Johns at 268 Northrop J also commented on s170EDA, the predecessor of s170CQ, and on s170DF, the predecessor of s170CK, as follows: "Under subsection 170EDA(2), where that subsection is to be applied, the termination is taken to have contravened subsection 170DF(1) unless the employer proves: "(c) the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or" It is because of this provision that the passage quoted from Heidt is of such importance. On the facts of this case, on the assumption that subsection 170EDA(2) applies, it would not be sufficient for the respondent to establish the reasons for dismissal as set out in the affidavit of the respondent and that they constituted valid reasons for termination under subsection 170DE(1). The respondent has to establish a negative namely that the reasons for dismissal did not include the reason that Mr Johns was temporarily absent from work because of injury. A mere denial may not be sufficient. All the facts and circumstances of the case have to be considered." 27 Moore J also considered the onus on the employer under s170DF and s170EDA of the Industrial Relations Act 1988 in Stojanovic -v- The Commonwealth Club Ltd (Industrial Relations Court of Australia, unreported, 8 December 1995). At 20, referring to the proscribed reasons in s170DF(1) which are the proscribed reasons in s170CK(2) of the Workplace Relations Act 1996 he said: "Thus the proscribed reason need not be the only reason. Section 170EDA requires the employer to establish either that if a proscribed reason is alleged, that was not the reason, or if a number of reasons are alleged, including a proscribed reason, the proscribed reason was not one of the reasons." 28 His Honor adopted a formulation of the onus on the employer approved by the High Court of Australia in General Motors Holden Pty Ltd -v- Bowling (1976) 12 ALR 605 and expressed by Mason J when addressing s5(4) of the Conciliation and Arbitration Act 1904, an earlier predecessor s170DF and s170CK. At 617 Mason J referred to the onus on the employer of establishing affirmatively that it was not actuated by the reason alleged in that case in the charge laid under s5. He held that the consequence was that the employee, in order to succeed, was not bound to adduce evidence that the employer was actuated by that reason, a matter peculiarly within the knowledge of the employer. He found the employee was entitled to succeed if the evidence was consistent with the hypothesis that the employer was so actuated and that hypothesis was not displaced by the employer. He said: "To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge." 29 In this case the applicant seeks penalty and compensation under s170CK(2)(f). His hypothesis is that the employer, through Mr Simmons and Ms D'Enett, was actuated in dismissing him by his physical or mental disability. His counsel has asserted that the evidence is consistent with the hypothesis and that the hypothesis has not been displaced by the respondent. 30 Submissions on disability. There is no evidence that the person who indisputably made the decision to terminate the employment, the managing director, Mr Lewis Simmons, or the person who indisputably put the termination into effect, Ms D'Enett, knew that the applicant was HIV positive. Richard Moore, a medial practitioner and clinical assistant and consultant to the Infectious Diseases Centre, Alfred Hospital, the Melbourne Sexual Health Clinic and the Carlton Clinic gave evidence that he had treated the applicant from June 1998 and that tests conducted on 14 June 1998 led him to form the opinion that "Mr Galvin is infected with HIV". 31 There seems to be an inference in the applicant's case that the respondent and specifically Mr Simmons and Ms D'Enett may have or are likely to have heard that the applicant was HIV positive and that either of them or both of them terminated his employment because of his condition which the applicant asserts is a physical or mental disability which was within the purview of s170CK(2)(f). I do not accept that such an inference can be reasonably drawn from the evidence, and more particularly I do not accept that such an inference is open from the findings I propose to make in respect of the evidence. 32 It is not necessary for me to rule on the submission of counsel for the respondent that "knowledge by the respondent of the existence and nature of the alleged disability must be established by the applicant" (paragraph 5 of Reply). If I had to rule on that submission I would be likely to find that an applicant has no onus to "establish ... knowledge by the respondent" but could sometimes succeed in cases in which the employer did not know of the existence and nature of the disability and where no disability in fact existed provided that the employer included as a reason for termination a reason of disability. For reasons which follow, it is also not necessary for me to rule on the respondent's alternative submission (paragraph 5 of the Reply) that "it is a defence to the proceeding that the respondent may establish that it has no knowledge of the existence of the alleged disability". I observe that a lack of knowledge of an actual or alleged disability is likely to constitute a significant factor in a successful defence because it will assist the employer prove that the reasons for termination did not include a proscribed reason of physical or mental disability. 33 Performance as a reason for termination Both parties spent a great deal of time at trial in assessing documentation including activity reports, sale incentive programs, group sales figures and visitor's reports. Given my assessment of evidence and my findings on evidence the documents are of far less significance than attached to them by the parties. Nevertheless, the documents were of some importance in terms of assessing whether performance was a reason for termination. 34 Performance as a reason for termination is in itself only important in that a termination allegedly based on performance, be that a legitimate or unjustified basis, has that reason as a reason for termination. If that is a valid or invalid reason for termination, it is at least a reason. In some circumstances, a termination which includes a reason of performance may assist an employer establish a defence that, whatever the reason or reasons for termination, the reasons did not include a proscribed reason. At the end of the day that is as far as such evidence can extend. 35 If the employer has terminated the employment, and I have found that to be so, and if an application is made under s170CK and the allegation of termination for a proscribed reason is maintained, the employer must prove that a proscribed reason was not a reason of termination and no amount of evidence, weak or strong, of termination on grounds of performance, will of itself avoid the onus or the test of proving that termination was not for a proscribed reason. Strong evidence of a performance-based termination may assist the employer but the employer must meet the test. Weak evidence of a performance-based termination might assist the applicant in that it might make it less likely that the employer will discharge the onus. Either way, and separate from evidence of performance, the respondent still must prove the termination did not include a proscribed reason. 36 In this case there is substantial evidence that a reason for termination, firmly entertained and expressed by the respondent as the reason for termination of the employment, was inadequate performance following warning, counselling and assistance. It is not part of this Court's function to rule on whether the employment was validly terminated on the grounds of performance. It is not part of the Court's function to consider whether the termination was in any way harsh, unjust or unreasonable. However, given the election exercised by the applicant, it is for this Court to determine whether the termination was unlawful because the reasons for termination included a proscribed reason of physical or mental disability. 37 Conclusion and Findings I have concluded that the respondent has discharged the onus and has proved on a balance of probability that the reasons for termination did not include a reason of the applicant's physical or mental disability. Ms D'Enett concedes that she did comment on the applicant's appearance and apparent illness at the conference in Pyrmont and at the respondent's office in Rushcutter's Bay. She denies that at Richmond on 11 September 1998 she commented on his appearance or gave his state of health or his appearance as a reason for termination to the applicant or to Sally Arthurton or Andrew Murray. 38 While I find the applicant generally a fairly impressive witness who answered most questions directly and made a number of direct and open concessions not necessarily in his interest, I found Ms Arthurton and Mr Murray much less impressive in their evidence and at times inconsistent in that evidence. I was impressed with the evidence of Ms D'Enett and Leanne Kawaji, the respondent's business co-ordinator, and with relevant evidence from Mr Simmons. I was not impressed with some of his evidence but I accept without hesitation that · he decided and indeed directed that the applicant's employment be terminated · he sent Ms D'Enett to Richmond for that purpose · he instructed Ms D'Enett to extract a resignation from the applicant and to dismiss the applicant if that did not occur · he rejected the second written resignation as insufficient and directed Ms D'Enett to obtain the third resignation which identified the reason of resignation as "personal" · he issued directions which led to a resignation which was involuntary and was no effective resignation but a dismissal at the initiative of the employer · he did not know of the applicant's HIV status until this was revealed or asserted at a conference in the Australian Industrial Relations Commission in November 1998 · he did not have and did not entertain in any way a reason of the applicant's disability as a reason for termination. 39 I am not satisfied on a balance of probably that Ms D'Enett said to the applicant at termination what the applicant asserts she said, namely "We're worried about your health. You look unwell." 40 I am not satisfied on a balance of probability that Ms D'Enett said to Sally Arthurton later that day words to the effect of those in Ms Arthurton's affidavit at paragraph 11.1 and 11.2.: "11.1 The reason the Applicant was leaving was because the Respondent was concerned about his health. 11.2 The applicant was not looking the way he used to." 41 I am not satisfied on a balance of probability that Ms D'Enett said to Ms Arthurton what the latter, in cross-examination (T63) claimed Ms D'Enett said, namely: "The reason why we are letting Joshua go is because of his ill-health." 42 I am not satisfied on a balance of probability that Ms D'Enett responded to Mr Murray as he asserts she did in paragraph 9 of his affidavit that "the respondent was worried about the applicant's health" or that she said what Mr Murray asserts she said (XXN T82) "we are worried about his health". 43 In my view, it is inherently improbable that Ms D'Enett would have referred to the applicant's health when seeking to extract a resignation on grounds of performance or, if she did, that an expression of concern about the applicant's health amounted to disability as a reason for termination. Certainly, the words "We're worried about your health. You look unwell" do not of themselves amount to an expression of termination on the ground of physical or mental disability. 44 In my view, it is inherently improbable that Ms D'Enett would have volunteered such information to the applicant, or to Ms Arthurton and Mr Murray, even if she had said it to the applicant. 45 I note there is no evidence that the applicant told Ms Arthurton or Mr Murray on the afternoon of 11 September 1998 that Ms D'Enett mentioned concern or worry about his health or that she said he was unwell. Indeed, although Ms Arthurton said she had a chat of perhaps half an hour with the applicant on that afternoon she gave evidence that (T60) "the only thing he told me was he was forced to resign". 46 I observe that affidavits sworn by Ms Arthurton and Mr Murray were drawn up by a solicitor after telephone discussions with the solicitor and in circumstances in which both witnesses refer to specific paragraphs in Ms D'Enett's affidavit but in neither case was either witness given an opportunity to actually read and consider Ms D'Enett's affidavit. Ms Arthurton and Mr Murray both gave evidence that the solicitor told them by telephone what was in specific parts of the D'Enett affidavit and that they responded by telephone and in their affidavits with references to what they understood to be in the D'Enett affidavit and with their expressions of disagreement as to what they had been told was in the affidavit.

47 I also observe that there is uncontradicted evidence that

· Mr Simmons and Ms D'Enett knew the applicant was gay

· the respondent employed other men and women who were openly gay

· the respondent did not discriminate in employment for or against gay persons.

48 My assessment of the overall evidence given by all witnesses over three days leads me to the conclusion that · Ms D'Enett is unlikely to have mentioned the applicant's health in the termination interview on 11 September · if she did mention a concern about his health (and I have found this unlikely) this did not in any way constitute a reason for termination based on disability and did not constitute a reason which included a reason of disability · if she did mention a concern about the applicant's health (and I have found this unlikely) Mr Simmons did not authorise a termination based in any part on the physical or mental disability of the applicant and did not have any disability of the applicant as a reason actuating him in directing termination · Mr Simmons did not authorise Ms D'Enett as an agent or employee of the respondent to terminate the applicant for reasons which included a reason of disability of the applicant · Mr Simmons could not have authorised Ms D'Enett to so act because he did not consider disability as a ground for ending the employment and disability could not have been and was not a reason for the termination of the applicant. 49 The effect of my conclusion and findings is a finding that the respondent has proved that the termination was for a reason or reasons which did not include the proscribed reason of physical or mental disability. The application and claim of unlawful termination of employment must be dismissed. ORDER

1. The application and claim of unlawful termination of the employment be dismissed. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of Judicial Registrar RYAN.

Associate: Dated: 26 July 1999 Counsel for the Applicant: MR MARK IRVING

Solicitor for the Respondent: COHEN WOOLF & WEINBERG

Date of Hearing: 14, 15 & 16 JULY 1999