Robertson v South

Mrs Robertson elected to take proceedings in this Court.

8 On 20 April 2000, when Mrs Robertson instituted proceedings against Mr South, she was not legally represented, but the application and statement of claim carried endorsements that they had been filed by the "Northern Territory Working Women's Centre." Mrs Robertson authorised Ms Jane Carrigan, who described herself as the Industrial Liaison Officer of the Northern Territory Working Women's Centre, to be her representative and to assist her in the prosecution of her application. Ms Carrigan, who is not a legal practitioner, appeared in Court with Mrs Robertson on directions hearings and has offered her assistance from time to time. However, on 1 September 2000, a notice was filed in the Registry advising that Ms Julie Franz, a solicitor in the office of Melanie J Little, was acting as Mrs Robertson's solicitor. When the case was called on for hearing, Mr McNab of counsel, instructed by Ms Franz, announced his appearance and conducted the proceedings on behalf of Mrs Robertson. 9 Mr South was originally represented by solicitors who filed an appearance on his behalf. However, at a directions hearing that was held on 4 August 2000, the Court was informed by his legal representative that her firm's instructions had been terminated. Mr South has since represented himself. 10 Section 170CR provides, inter alia, that, if the Court is satisfied that Mr South contravened s 170CK in relation to Mrs Robertson's termination, the Court may make one or more of the following orders: · it can impose a penalty up to $10,000; · it can order reinstatement; · it can award compensation to Mrs Robertson; · it can make any further order that it thinks necessary to remedy the effect of the termination; · finally, the Court can make any consequential orders that it considers to be appropriate. 11 Mrs Robertson does not seek reinstatement but she does seek a penalty and compensation together with interests and costs. She also asks, pursuant to par 356(b) of the Act, that the penalty be paid to her. On the other hand, Mrs Robertson has not alleged that Mr South was in breach of the requirements of s 170CM of the Act. That is the section that, in effect, requires an employer to give an appropriate period of notice of termination or, alternatively, compensation in lieu of notice. 12 Mrs Robertson also sought, in the alternative, declarations and orders based upon her allegation that her termination was harsh, unjust or unreasonable. Relief in those terms is not available to her. As I explained, the Commissioner's certificate under s 170CF called for an election. Mrs Robertson could have elected to take the issue of "harsh unjust or unreasonable" termination to arbitration. But instead she (or perhaps her advisers) elected to come to court seeking the orders that are available under s 170CR. A declaration that her dismissal was harsh, unjust or unreasonable is not within the jurisdiction of this Court. Mr McNab appreciated this and sought and obtained leave to amend the pleadings by withdrawing that claim. 13 Mrs Robertson's right to bring this application is to be found in s 170CP of the Act. Subsection (1) of that section provides: "(1) Subject to subsection (5), an employee may apply under this section to the Court for an order under section 170CR in respect of an alleged contravention of one or more of sections 170CK, 170CL and 170CN by his or her employer." 14 Even though Mrs Robertson has raised a s 170CK ground, she is not obliged to prove that her termination was for a proscribed reason: see par 170CQ(a). However, that same section contains the following paragraph: "(b) it is a defence in the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason …" 15 In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266ff, Northrop J considered the provisions of s 5 of the Conciliation and Arbitration Act (1904) (Cth). In many respects that was a forerunner to s 170 CQ of the Act. His Honour said at 268: "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." 16 In the practical application of those remarks to the present case, it means that it is not sufficient for Mr South to advance a valid reason for his termination of Mrs Robertson's employment. He must go further and negate the claimed existence of prohibited reasons. The provisions of S 170CQ do not, in any way, impose any restrictions on the evidence which may be lead by a party in proceedings such as these. They do, however, affect the normal evidentiary rules that, most often, impose an onus on the party who is seeking the intervention of the Court to satisfy the Court, on the balance of probabilities, that relief is justified. In proceedings under the Act where there is an allegation that an employer has breached one or more of the provisions of s 170CK, those rules are reversed. It is sufficient for an applicant to raise an allegation; it then falls to the respondent to meet that allegation and satisfy the Court that there is no foundation for the allegation. The degree of satisfaction that the Court will require is based on the balance of probabilities. However, if the applicant leads no evidence - if the applicant does no more that make the allegation - a simple denial by the respondent might, in appropriate cases, be all that is needed to satisfy the Court. The Court must have regard to the difficulty that a respondent faces when presented with an allegation that is not supported by evidence. It is what Northrop J described in Johns v Gunns Ltd (1995) 60 IR 258 at 268 as an "onus to establish a negative". 17 In this case, Mrs Robertson has alleged three proscribed reasons for her dismissal. Adapting the language of s 170CK, an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

1. Par 170CK(2)(e) - Complaint (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;

2. Par 170CK(2)(f) - Family Responsibilities (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;

3. Par 170CK(2)(g) - A Workplace Agreement (g) refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA; 18 Mr South in his defence, which appears to have been prepared by his legal advisers before their instructions were terminated, has denied the basic allegations of the existence of proscribed reasons, asserting that Mrs Robertson's employment was terminated "due to an operational requirement of the Respondent". That meaningless phrase (or a derivative of it) appears in pars 15(a), 20 and 24 of his defence. It became clear, however, during the course of the hearing, that Mr South's defence was that Mrs Robertson's employment was terminated at the same time as the employment of other members of the staff because of financial difficulties that Mr South's business was then experiencing. 19 On 5 July 2000, Mrs Robertson filed an amended application and an amended statement of claim, and on the morning of the trial Mr McNab filed, with leave, a further amended statement of claim alleging that the Court had jurisdiction because Mrs Robertson was employed in a Territory and deleting all claims that were based on an alleged harsh, unjust or unreasonable termination. In describing her complaints and the remedies that she seeks, I have referred and will continue to refer only to the final version of the amended pleadings. 20 Before I proceed to discuss the evidence, I set out my assessment of Mrs Robertson and Mr South as witnesses. In all aspects of his evidence, I regarded Mr South as a witness of truth. He is a man who is quick to anger and it was apparent from observing him, as he gave his evidence, that he has a volatile personality. These aspects of his personality caused him, at times, to rush his answers, to express himself carelessly and to be argumentative. I have made allowance for these factors in coming to my decision that I accept his evidence. 21 My assessment of Mrs Robertson was different. I do not suggest that she was an untruthful witness but she presented as a person who regarded herself as one who had been unfairly treated. As I will endeavour to explain, when told of her retrenchment, she instantly rejected Mr South's explanation that his business' financial difficulties were the reason; she jumped to the false conclusion that she had been dismissed because she had made a report to the authorities about the conditions of the toilets at her place of work. Her inaccurate perception of the reason for her dismissal has coloured her whole approach to this matter. Where her evidence is in conflict with Mr South and his witnesses I accept theirs in preference to hers. 22 I turn now to consider, in turn, each of the three alleged breaches of subs 170CK(2).

PAR 170CK(2)(e) - COMPLAINT 23 Paragraph 170CK(2)(e) prohibits termination because an employee may have filed a complaint or participated in proceedings against his or her employer. 24 Mrs Robertson claimed that in August 1999 she spoke to Mr South about the condition of the employees' toilet. She alleged that there was only one toilet for approximately 20 male and female employees; she said that although Mr South was rude to her at the time when she raised the subject, he did undertake "to start improving the situation". Mr South, who agreed that Mrs Robertson approached him about toilets, said that he had earlier made plans to erect improvements on his business site which would include amenities but that he had been unable to complete them due to financial restrictions. He went on to say that other members of staff, in addition to Mrs Robertson, had approached him in 1999 about the toilets. It was clear to me that he was aware that the toilet facilities were inadequate and that his staff's complaints, although a source of irritation, were nevertheless justified. 25 Mrs Robertson said that although Mr South started to do some work on the toilet, he failed to complete the necessary work. As a result, she took it upon herself to ring the Work Health Authority to complain. That call was made on about 2 February 2000 and it lead to officers of the Authority inspecting Mr South's business premises on 8 February. The Authority issued an improvement notice requiring specified works to be carried out by 27 February 2000 with respect to the toilet facilities. Mr South said that he was not then aware that Mrs Robertson had contacted the Work Health Authority. He said that the visit of the inspectors was an occurrence that occurred from time to time. He did not know that Mrs Robertson had contacted them and he did not connect her approach to him in August 1999, some six months earlier, with the inspectors' visit in February 2000. This passage in Mr South's evidence was not seriously challenged. In fact, Mrs Robertson conceded that she had asked the Work Health Authority officer not to disclose her as the person who had made the report and the Authority's file, which was tendered in evidence, contained no record of Mrs Robertson's name or her involvement in the matter. 26 I do not consider that this ground is open to Mrs Robertson. The conjunction of the words "complaint" and "proceedings" suggests, in my opinion, that the "complaint" must be more than an unrecorded telephone call. It is not, however, necessary to come to a concluded view on this subject. Although I am satisfied that Mrs Robertson rang the Work Health Authority about the situation concerning the toilet facilities at her employer's premises, I am also satisfied that Mr South did not know that she had made this contact. Accepting Mr South's evidence that he did not know that Mrs Robertson had approached the Work Health Authority, it follows that her approach (assuming without deciding that it amounted to a "complaint") did not constitute a reason for her dismissal. Mr South has therefore proved to my satisfaction that her termination was not for the reason that Mrs Robertson had filed a complaint against him with the Work Health Authority.

Refusing to Negotiate an AWA 27 The next reason that has been advanced by Mrs Robertson is that her termination breached paragraph 170CK(2)(g). 28 That paragraph prohibits termination as a result of: " … refusing to negotiate in connection with, make, sign, extend, vary or terminate an AWA." 29 Mrs Robertson claimed that she made three approaches to Ms Marie Saunders, Mr South's secretary, seeking a "Workplace Agreement". She claimed that she was told that the matter would be investigated but nothing came of it. Mr South said that he knew nothing of this; Ms Saunders had never relayed Mrs Robertson's complaint or inquiry to him. Ms Saunders did not give evidence in the trial. In this area of the evidence, I have no cause to question the evidence that Mrs Robertson has given. In my opinion, the evidence justifies the following findings: · Mrs Robertson did approach Ms Saunders on three occasions about a Workplace Agreement but never approached Mr South on the subject; · Ms Saunders never gave Mrs Robertson a satisfactory answer to her inquiries; · Ms Saunders never relayed Mrs Robertson's requests to Mr South; · Mr South never knew that Mrs Robertson had requested a Workplace Agreement. 30 As Mr South did not know of Mrs Robertson's requests (and it was not suggested that her approaches to Ms Saunders amounted to constructive notice to Mr South), he has satisfied me that her inquiries about a Workplace Agreement were not a reason for her dismissal. Mrs Robertson has, in my opinion, an additional problem. I do not believe that Mrs Robertson can obtain any assistance from this paragraph. The prohibitions in subs 170CK(2) are against an employer terminating an employee's employment for various reasons, one of which is (as I read the provision) the employee refusing to enter into an AWA agreement. The construction of the language would be strained if it meant that an employer cannot terminate an employee's employment because of the employer's refusal to enter into the agreement. It must be the employee's refusal that is the proscribed event. This conclusion is strengthened when one has regard to the eight prohibited reasons that are set out in subs 170CK(2). Each of them deals with an activity of the employee. Thus par (a) states that an employee's employment cannot be terminated because of the employee's temporary absence from work because of illness or injury. Paragraphs (b) and (c) deal with an employee's membership or non-membership of a trade union - they cannot be reasons for termination. Seeking office as a representative of employees is also a proscribed reason - see par (d). The filing of a complaint also deals with the conduct of an employee - that act of making the complaint cannot be used as a ground for termination: par (e). Paragraphs (f) and (h) dealing, as they do, with the personal circumstances of employees such as "race, colour, sex, sexual preferences" and other discriminatory factors such as "family responsibilities" are all prohibited reasons. 31 When one stands back and assesses these prohibitions, it is easy to accept that the reference in par (g) to: "… refusing to negotiate in connection with, make, sign, extend, vary or terminate are AWA."

is a reference which comfortably sits with the other prohibitions when it is read as meaning that an employee cannot be dismissed for refusing to do one of those things. To read the paragraph as also applying to an employer's refusal to negotiate in connection with an AWA is wholly inconsistent with the contents of the eight paragraphs.

32 In my opinion, any failure on the part of Mr South to give Mrs Robertson a Workplace Agreement is not covered by the provisions of par 170CK(2)(g).

par 170ck(2)(f) - family responsibilities 33 The last allegation that Mr South faced was that he terminated Mrs Robertson's employment because of her "family responsibilities". 34 In about December 1999, Mrs Robertson's husband was diagnosed with cancer of the kidney. As a consequence, she asked Mr South for time off work so that she could care for her husband. According to Mrs Robertson, Mr South said words to the effect that "health and family come first", telling her to take time off as needed. Mrs Robertson said that, as a consequence, she was absent from work for most of December 1999 and the first half of January 2000. The substance of that evidence was accepted by Mr South. 35 Mrs Robertson has now alleged that, as a result of the time that she took off to care for her sick husband, her employment was terminated. There are several aspects about this claim that create substantial evidentiary difficulties for Mrs Robertson. There is no doubt that her husband suffered life threatening cancer of the kidney in early December 1999 from which he appears to have made a recovery. But the evidence that was presented in the case, both by Mrs Robertson and by Mr South, pointed to a caring, concerned employer, who supported his employee and her sick husband most generously. 36 To make good that conclusion it is necessary to refer in some detail to Mrs Robertson's work history. She commenced her casual employment in the propagation section on Monday 4 January 1999 and was made permanent on 28 April. In the following July, long before she had any entitlement to annual leave, but by prior arrangement with Mr South, she was given three weeks leave to visit interstate. Four days, representing her accrued annual leave, were taken with pay and the balance of that period was taken without pay. Then in December 1999, because of her husband's illness Mrs Robertson was permitted to take more annual leave with pay (before it was due) and additional leave without pay. She agreed that Mr South had said words to the effect that family are more important. Mrs Robertson was absent from work during this period from 1 December 1999 to Tuesday 11 January 2000, returning to work on Wednesday 12 January. Her dismissal did not occur until Monday 21 February 2000, some six weeks later. 37 I accept that Mrs Robertson was very upset when Mr South have her notice of termination of her employment. Even though she agreed that he gave as his reason that he was having financial difficulties, she said that she did not believe him. Instead, she acknowledged that she had concluded that she had been sacked because she had earlier that month made contact with the Work Health Authority about the toilet facilities. When she was asked why she had come to that conclusion, she said that it was because she had questioned Mr South about the toilet in the preceding August - some six months ago. Therein lies the tragedy of this case. Mrs Robertson, showed during the course of her evidence that she is a very determined - some might even say, aggressive woman. Mr South is what many would call a "hot-head". There was a recipe for disaster. Instead of suffering her pain and accepting her misfortune and accepting, as the truth, Mr South's explanation about his financial difficulties, Mrs Robertson saw herself as a victim of some act of revenge; her evidence revealed that her assessment of that revenge was, however, limited to the issue of the toilets. The allegations concerning her husband's health and the Workplace Agreement obviously came as after-thoughts as she endeavoured to build a case against Mr South. Sadly, she jumped to a false conclusion and that false conclusion poisoned her mind against Mr South. 38 On Thursday 17 February 2000, Mr South held a staff meeting with members of his senior staff. The financial crisis that his business was facing had to be addressed. The business had an overdraft limit of $50,000 but that overdraft had blown out from $3,924 on 1 January to $67,515 on 19 January when a big deposit reduced it to $49,163. However, the overdraft continued to grow, exceeding the limit for the balance of the month. A substantial deposit of about $40,000 on 4 February 2000 reduced the overdraft to $39,469 but on the following day it was back over the limit and stayed over the limit for the next week. The overdraft hovered between $30,000 and $40,000 until 17 February when the fortnightly wages cheque of $11,457 pushed the limit to $47,447 and subsequent transactions increased the overdraft to $68,629 on 21 February. That was the financial climate in which Mr South met with his senior staff and told them that retrenchments would have to occur. 39 At the Thursday meeting, the decision was taken that there had to be cutbacks across all sections other than the important section of "Orders". A decision was made that five members of staff would have to be retrenched: Mrs Robertson was one of them. The unfortunate members of staff were told of this decision on the next day, the Friday, save that Mrs Robertson, being absent that day, was told on Monday. In addition to those dismissals, another member was dismissed a week or so later, and shortly after that, two other members of staff resigned and were not replaced. The huge significance of this reduction in the workforce of the business is more readily appreciated when regard is had to the fact that the total workforce before the dismissals was only slightly in excess of twenty permanent and casual staff. Such heavy retrenchments give some idea of the seriousness of the situation. Mrs Robertson was therefore one of eight staff reductions out of the total workforce. 40 Mr South called two members of his staff to support critical areas of his evidence. Ms Element was and is the manager of the section of the business that she described as "Maintenance and Production". Ms George was the manager of the Propagation section and the supervisor of Mrs Robertson who worked in that area. 41 Both these witnesses attended the meeting on Thursday 17 February; both agreed that the purpose of the meeting was to discuss the necessity for staff retrenchments. They confirmed Mr South's evidence that he had explained that it was necessary to retrench in several areas. Ms Element said that the personal circumstances of Mrs Robertson were discussed at the meeting; she, for her part, offered no assistance to Mrs Robertson as she made it clear that she would not consider Mrs Robertson as a suitable person to work in her division. Ms George said that she was told that her workforce of three in the Propagation section had to be reduced by two. She decided that the two would have to be Mrs Robertson and Janet. There was a position for one additional person who could be transferred to "Orders". Unfortunately for Mrs Robertson, however, the decision was made that Janet would be the more suitable person. Mrs Robertson was not dismissed because of her absences from work but her absences did mean that Janet was preferred over her when the time came to decide who would be the member of staff who would be offered a position in "Orders". 42 Mr South, despite his irascibility told a story during his evidence that I found convincing. He explained that Mrs Robertson had a lot of time off, predominantly because of her husband but also because of her eight year old daughter and her own occasional sick days. There was no question of unauthorised absences from work but it was a fact that she took a lot of time off. Mr South said, however, that these absences could be covered in the Propagation section of the business but not in any other division. For example, in the "Orders" section, it was most important to have staff readily and consistently available because that was the section that generated the cash flow for the business. Work for Mrs Robertson was not available in other sections because the workload was either too heavy for a woman or, in the case of production, because of a personality conflict between Mrs Robertson and Ms Element, the supervisor of the section. But, as I have said, these issues were not reasons for her dismissal. They were reasons why she was not offered the opportunity (to the detriment of another retrenched employee) to take a transfer to a vacancy in another section of the business. 43 The many prohibited reasons for terminating an employee's employment include" "(a) temporary absence from work because of illness or injury … and (b) absence from work during … parental leave." 44 However, none of those reasons were advanced by Mrs Robertson and need not be taken into consideration. 45 Mr South said, and I accepted his evidence, that he decided to terminate Mrs Robertson's employment with regret; he knew that her husband was unable to work but there was no other division in his business where he could place her. There had to be cut backs. However, his attitude towards her changed within a few days when he found out that she had immediately gone to the authorities to complain about her dismissal. He felt that, by giving her early holidays and extensive time off to care for her sick husband, he had showed that he cared for her as one of his employees. He felt, and I think that he was justified, that she had treated him unfairly. If, as Mrs Robertson has claimed, Mr South dismissed her because of her absence from work, due to her husband's illness, two questions remain unanswered: why did he give her time off in the first place? And why did he wait for six weeks after her return before dismissing her? There is no obligation on Mrs Robertson to answer either of these questions. The obligation is on Mr South to prove that he did not dismiss her for a proscribed reason. However, it remains a fact that after reviewing all the evidence and considering those two factors, I am satisfied that Mr South was telling me the truth. He did not dismiss Mrs Robertson because of her "family responsibilities".

the employment separation certificate 46 It remains necessary for me to say something about the contents of the Employment Separation Certificate that was issued to Mrs Robertson. On 1 March 2000 Mrs Robertson received her Certificate. It was Ms Saunders who signed the Certificate which, in addition to citing "shortage of work or redundancy" as a cause for termination, also referred to unsatisfactory work performance in these terms: "Attendance very poor and very slow and slow down in business." 47 I accept Mr South's evidence that this document was prepared by Ms Saunders and that she did not consult with him about its contents. In one sense Mr South is bound by its contents. Thus he cannot back away from the fact that an authorised employee issued that Certificate. However, the critical issue that must be investigated is Mr South's state of mind up to and at the time when he terminated Mrs Robertson's employment. He said that he was not involved in the preparation of the Employment Separation Certificate; he said that what his secretary, Ms Saunders wrote in the Certificate were her ideas and not his. It must be remembered that Mrs Robertson wasted no time in telling her supervisor that she had reported Mr South to the Industrial Relations Commission; news of that conduct would have travelled quickly throughout the workforce. Mr South treated it as a declaration of war. Such a climate could easily have built up a groundswell of animosity towards Mrs Robertson - not only from Mr South but also from members of his staff, such as Ms Saunders. In any event, the matter of greater importance is to assess Mr South's conduct on the day that he dismissed Mrs Robertson. Having regard to his generous support of her in early times, it would be inconsistent to use her absence as a reason for dismissing her. I accept his explanation that Ms Saunders was wrong in writing in the Certificate that unreliability was a cause of Mrs Robertson's dismissal. 48 As Mr South has satisfied me that he did not terminate Mrs Robertson's employment for a proscribed reason, her application must be dismissed. I have considered whether a costs order should be made against Mrs Robertson. Her attitude was, in my opinion, unreasonable and unjustified. Mr South complained that he was forced to defend himself because he could not afford his solicitor's fees. He has been put to a great deal of unnecessary trouble. However, I do not think that Mrs Robertson proceeded in bad faith. I consider that hers is an unfortunate case of convincing herself that she was in the right. I will not make a costs order against her. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Date of Hearing: 12 and 13 September 2000