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".