Temesvari and Divine Image Group Pty Limited [2005] NSWIRComm 1060

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Shop Distributive and Allied Employees' Association, New South Wales Vs Librus Pty Limited trading as Dymocks Parramatta [1999] IRC 1062.

HEARING DATES: 03/04/2005 EXTEMPORE JUDGMENT DATE : 03/04/2005

APPLICANT Mr Alex Temesvari represented himself LEGAL REPRESENTATIVES: RESPONDENT Mr Fred Alam

DECISION: 17 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

ALEX GEORGE TEMESVARI AND DIVINE IMAGE GROUP PTY LIMITED.

Application by Alex George Temesvari re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is a decision given ex tempore in respect of the above matter which was heard over a single day, 4 March. The file shows the matter had been conciliated on 27 July, and a further attempted conciliation on 3 September. The matter was listed again on 17 September and finally, a further conference on 26 November. 2 The file shows the conference on 17 September vacated at the request of the respondent, as was 28 October. And on at least one occasion, there was no appearance by the respondent. There was evidence that the respondent later sent a message as to why he was not present but overall I was dissatisfied on that count of the level of the respondent's co-operation in the conciliation process. 3 More importantly, the hearing of this matter today has been blighted by the failure of the respondent, despite several requests from my assistant along the way, to provide a witness statement outlining its case in response to the applicant's witness statement which was due on 14 January and received here in the Commission on 17 January. 4 The matter proceeded today on the basis of both parties being unrepresented. The applicant, Mr Temesvari, represented himself, providing the only evidence on behalf of himself. And the respondent likewise, restricted its evidence through its representative Mr. F Alam.

5 Exhibit 1 in these proceedings was the applicant's statement, attached to which was a document prepared by his partner, which largely went to the issue of whether or not the applicant had worked regular shifts. But overall, it was not all that important and not much weight needed to be given to that attachment. 6 More important, was exhibit 2 which was provided by the respondent during proceedings, to some surprise of both the Commission and the applicant. In response to that, the applicant then provided exhibit 3 which were his diary notations, to deal in part with the propositions put by the respondent in exhibit 2. 7 It was at that point in the proceedings when I again reminded the respondent of the difficulties thrown up by his failure to provide proper witness statements, which may have alerted the parties to the need to address such issues as purported by exhibit 2. 8 The Commission overall and throughout the conduct of this case, had some difficulties in getting evidence in a properly structured way and the Commission attempted to minimise any prejudiced or disadvantage by allowing the applicant to be recalled to deal with matters raised by the respondent, and the disadvantages thrown up by the lack of witness statements. So, more than the usual difficulties of cases with unrepresented parties occurred in this case, although the Commission regularly deals with cases of unrepresented litigants which rarely runs smoothly. Jurisdictional Issues: 9 The questions for the Commission were primarily ones of jurisdiction here today, and those related to two aspects. Firstly, the fact that the application by the applicant who was dismissed on 27 April - or at least, that was his last day of duty - did not file his application until 1 July. The only evidence before the Commission was that provided in the applicant's application form which said: "I initially joined the National Union of Workers when my problems started, hoping they would help me with my situation. After being with them for approximately five weeks, in this time, they never even managed to call my employer. When I complained about their lack of help, they threw me out of their Union. So this is my last resort to get some justice, and why I haven't lodged this form earlier". 10 The applicant also gave some separate evidence of some few weeks attempting to clarify his position with the respondent, and the reason why he did not look for other employment. There was also some other allusion by the applicant as to his difficulties with having the Union represent him. 11 The Commission is conscious of the notion of representative error on the basis of the relatively short lateness of this matter, and what appears to be the failure of the Union to prosecute the matter effectively. The late application is allowed after consideration of those matters for my discretion under Section 85(2). 12 The more important jurisdictional issue then, and one which exercised the Commission's mind considerably throughout the hearing and in the period which I have been adjourned to prepare a draft for this ex tempore decision, was whether or not the applicant was exempted from the jurisdiction by virtue of Section 83 subsection (2)(c) which says: "This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes". 13 More specifically Paragraph (c) of the subsection reads: "employees engaged on a casual basis for a short period". 14 The respondent, although unrepresented, did raise the jurisdictional issue throughout these proceedings today and the issue of course, was canvassed somewhat in the conciliation conferences. 15 The applicant's employment was for some 15 weeks - short of four months, and of course, short of six months which is mentioned in the 5B regulation, which became effective on 1 October 1997. The regulation as it stood at the time of making reads as follows: "5B Other exemptions from unfair dismissal provisions". 16 Going straight to 5B(1) paragraph (d), it reads: "employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer." 17 I will deal later with the respondent's contentions as to the various aspects of the casual nature of the employment but I will first deal with this broad issue of regulation 5B, on the basis that the applicant may be excluded from jurisdiction. 18 The Full Bench of this Commission dealt with this issue in the decision in the Shop, Distributive and Allied Employees' Association, New South Wales v Librus Pty Limited trading as Dymocks Parramatta [1999] IRC 7062. Their honours Walton and Hungerford JJ and Patterson C., clarified the effect of this part of the regulation. 19 The relevant question in that decision was whether the applicant was exempt from relief because he was engaged for less than six months. I will read some brief extracts from that decision, starting at para 26 where their Honours and the Commissioner had this to say: "In our view, any regulation made to give effect to that statutory facility to exempt from coverage must be limited to casual employees engaged for 'a short period'. Put another way, any regulation made to exempt a casual employee must be restricted to that authorised by the statute, and within its terms, but not so as to extend the authorising provisions of the statute to exempt persons not included within its permitted limits". 20 There is some reference by their Honours and the Commissioner to some other relevant case law when it further observed: "In that same case, Starke J commented that 'the regulations they refer to must be regulations convenient for carrying out the purposes of the Act, that is, the transmission and receipt of wireless messages, and not the purpose of manufacturing plant'. Applying that reasoning to the instant case, a purpose of the Industrial Relations Act is to enable a casual employee to bring a claim for unfair dismissal except where a regulation be made exempting a casual employee engaged 'for a short period'. Any extension or restrictive refinement of that fundamental purpose by a regulation would result, in our view, in the regulation being invalid. So viewed, cl 5B(1)(d) may properly be construed in a manner consistent with s 83(2)(c). 21 The construction that the Full Bench put on that regulation was as follows. The first point is: "Employees engaged on a casual basis for a short period may be exempted from Pt 6 of Ch 2 by the regulations: s 83(2)(c). Employees engaged on a casual basis for a short period, except if the casual employee meets certain specified conditions, are exempt from the unfair dismissals provisions: cl 5B(1)(d). A casual employee otherwise so exempt by being engaged for a short period is nevertheless able to bring an unfair dismissal claim if two specified conditions in cl 5B(1)(d) are satisfied, namely: (i) the employee concerned is engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, if not dismissed, have had a reasonable expectation of continuing employment with that employer". 22 In the next paragraph, the Full Bench said this: "that means a casual employee engaged for 'a short period' and who would therefore be exempt is saved if the employee satisfies both subparas (i) and (ii). The essential enquiry, however, is whether the casual employee has been engaged for a short period - if not, then the specified conditions do not have to be considered as the employee concerned is not exempted from bringing a valid claim. Viewed in that way, we see no support for the proposition that the provision in the Regulation excludes a casual employee who has not been employed by an employer for a period of less than 6 months. The only exclusion contained in the Regulation, and consistent with the statute, is for a casual employee engaged for a short period unless the employee is saved by having had regular and systematic periods of employment during a period of at least 6 months (and even though such period may be 'a short period') and had a reasonable expectation of continuing employment. In other words, the executive in making the Regulation has, as we think it is entitled to do, granted a limited exemption from the benefits of the statute in relation to casual employees engaged for a short period. What the Regulation has not done, and what we do not think it could do, is to say that engagement on a casual basis for a period of less than 6 months is necessarily engagement for a short period". 23 The Bench goes on to talk about it being a mixed question of fact and law to be determined in all the circumstances of the case arising. 24 So the other elements in this regulation are the issues of sequence of periods of employment during the period and that a reasonable expectation of continuing employment is not part of what was intended by the regulation. The only requirement is for an employee to be engaged for a short period. 25 In this case then, the Commission is also mindful of the decision of Taylor v Ryde-Eastwood Leagues Club Limited, which prior to this regulation and indeed, prior to the 1996 Act, dealt with the issue of casual employment, although the decision in Dymocks case is the proper source to go to consider the jurisdictional question of casual employment. 26 The applicant in his witness statement to the Commission, talked of his engagement over a three and a half month period - it was actually 15 weeks - and receiving three to five regular shifts per week, usually on the same nights, and the same locations. And whilst there were some slight variations as to that in the respondent's evidence, the applicant's contention is not seriously challenged by the respondent's version. 27 So the question for the Commission was essentially related to the jurisdictional issue of whether the period of some 15 weeks where the applicant enjoyed a reasonably steady number of engagements which he says in his application varied slightly over shifts, and whether that escapes the exemption of this legislation. 28 In all the circumstances and the evidence before me, I believe the applicant is not exempted by regulation 5B, having regard to the Full Bench decision in the Dymocks case.

29 Dealing with the merits of this claim, the question to be determined was whether the respondent's failure to provide the applicant with any further shifts unfair in the circumstances, otherwise revealed by the evidence. On one side, the applicant gave evidence of having no knowledge of a particular manual, which the respondent insisted made clear that he was engaged for a particular campaign in respect to Toohey's alcohol. The applicant for his part, said that he was neither informed of this orally or in writing. 30 The Commission observed of course that it was significant that nowhere in the exchange of words between the applicant and the respondent around the time of the cessation of his employment (which was effectively his dismissal), was the question raised - that is, that the actual words were never used by the respondent, going to the main contention, i.e. that the particular campaign was what he was essentially engaged for and that campaign was at an end. The Commission found that somewhat curious that Mr Alam did not simply refer the applicant to that simple condition if it was the basis of the applicant's employment as now claimed when he was denied further shifts. 31 The applicant in his witness statement says that his dismissal was caused by his refusal, (done politely according to him), to be able to work a particular extra shift on Thursday, 22 April; that was for an additional shift to be worked on top of an existing rostered one on that day that he was requested to work. When requested on 21 April - the day before, Wednesday -he declined that shift, but found that he was also excluded from working the shift that he had been rostered for on the Thursday 22nd - that is, the shift that he was originally rostered to work, but removed after he was unable to work the additional shift that day asked of him. 32 He says in his witness statement that the employer tried to blackmail him into working the shift saying that, "He should remain on his good side". "After this, my usual rostered shifts started being cancelled. When I questioned my employer on this he said, since I am a casual employee, he could do whatever he wanted and I had no rights. My employer told me we had to discuss the matter so I could carry on my employment" 33 The applicant claimed to have worked hard for the respondent and done a good job for the company and this was not contested in the evidence by the respondent. His dismissal therefore, was a shock to him, this job being his only source of income at the time. 34 He goes on to talk about the financial impact upon the household which he and his partner shared at the time. He talks about the numerous attempts he made to contact the respondent to try and rectify the situation, and then finally to resort to legal challenge. 35 As already mentioned, the respondent's case was that the campaign in respect to Toohey's alcohol was to conclude on 30 April and that this was a natural cut-off point for the applicant's employment. He further postulated that the applicant indeed had never been dismissed, and that he was still on the books. And to reinforce that point, claimed that he had been advised that he was required by law - and I am not too sure what law Mr Alam might be relying upon - that all records of casual employees are to be destroyed. In the case of the applicant, his records were not destroyed and therefore this is an indication that he was never dismissed according to Mr Alam. 36 This was another issue of credit in respect to the respondent's evidence, although not the most important. 37 There was some dispute by the respondent as to exactly what shifts the applicant was rostered for. The respondent maintained that the applicant's dismissal date was according to exhibit 2, which showed the applicant's last shift to have been 27 April. The respondent's exhibit showed him not being rostered on 1 and 2 May but later the respondent appeared to shift his position on that, suggesting that perhaps that day he was rostered, but that on the Sunday the applicant never worked. 38 The applicant, in his evidence, insisted that he did occasionally work a special programme outside of the larger programme, for Toohey's, in contradiction to the respondent. 39 The applicant also gave evidence that on 22 April when he was asked to work the additional shift, it was in respect again, of a different client by the name of James Squires. 40 The respondent relied also upon a long history of employing some 700-odd different casual staff over that time - six and a half years - and asked the Commission a rhetorical question as to why he had not had any difficulties in the past and why the applicant was the only one to disagree with the treatment he had received. The essential characteristic of that treatment, according to Mr Alam, was the engagement had simply run out. That is, the particular campaign of Toohey's. 41 The respondent also relied upon the nature of casual employment as a reason to firstly justify the dismissal and secondly, to claim the lack of jurisdiction for the Commission in this case. 42 The respondent pointed to the fact that up to 35 extra staff who were engaged throughout New South Wales on this campaign are in the same boat as the applicant, and no other one complained. The respondent relied upon oral evidence to establish this point. 43 Both parties made brief final submissions. The applicant declined to make initial submissions. The respondent, in his final submissions, again said that his organisation looked after their staff, held the value of staff very highly, and developed their skills. He then referred again to the very nature of casual employment as he relied upon to justify what happened to Mr Temesvari. 44 The applicant gave a brief response to the final submissions.

45 Both jurisdictional issues of lateness and of the length of the applicant's casual employment have been determined by the Commission in favour of the applicant for the reasons enunciated above - the late application because of the representative error involved and in respect of the casual employment, in view of the reasonable period over which steady employment occurred. 46 I have to now deal with the assessment of credit - the comparison of the credibility of the witnesses, and what that does to the evidence put by both sides, in order to assess the merits of the claim. 47 In this case, I must say I had reason to be concerned about the respondent's tendency to slip away from issues initially put. The respondent's credit was exposed mostly in respect of exhibit three, which was tendered by the applicant in response to exhibit two lodged by Mr Alam. Exhibit three was the diary entries. 48 Having regard to the acknowledgement by the respondent of some vital parts of those diary entries, amongst which was the 29 April diary entry and the text message sent to the applicant, I believe the respondent's credibility was shown to be somewhat vulnerable in his otherwise stout contentions in respect of what happened to the applicant's 22 April shift and other shifts. 49 The applicant produced in these proceedings, a preserved mobile telephone text message which was dated 29 April and relates to the diary entry set out later, but firstly let me read the text message sent by the respondent, and dated 29 April. It reads as follows: "Have been trying to call you all morning. Have cancelled your shifts for this week. Received your email and we have to resolve before any more work is completed". 50 Obviously from the text message there, it supports the complaint by the applicant as to the cancellation of the 22 April shift. The respondent in this text message goes on to include other shifts as being cancelled that week, which again is consistent with what the applicant contended. The supporting diary entry reads as follows: "Today Fred texted me and cancelled my shifts for Saturday and Sunday, telling me he had received my email and that we had to resolve before work was to be completed. I called him straight away to get to the bottom of this. He was caught off-guard and didn't know what to say, so he asked me to call back in ten minutes. I did, and he still didn't know what to say and he said he would call me back. He never did". 51 The respondent acknowledged that that message was sent. A little more in dispute was the next diary entry, dated 30 April and I read that also on the record: "I called Fred again around noon to sort out what was going on. He asked me to call back in an hour so I did. I asked him why I had shifts taken off me for no reason. He then started to tell me he wasn't happy with the paperwork I filled out a month or so earlier when I was supervising. I asked him what this had to do with now and why he hadn't talked to me about that a month ago. He proceeded to tell me, he had talked to me, and basically lied about things that he knew were not true. Fred was very abusive and yelled a lot. When I mentioned the Union to Fred, he laughed and said that as casual promotional staff, I'm not protected by any Union". 52 May I say that that and the other diary entries seemed extremely plausible to me, despite the denial from the respondent of some of those aspects, particularly the one I just read. On 5 May, there was another diary entry: "I emailed Fred today as he asked me to do when we last spoke, and outlined the things I was not happy about. I let him know that I thought I was being treated unfairly and that I enjoyed working for Divine Image, and wanted to keep working there, so I wished to resolve any problems and move on". 53 On 10 May, the applicant's diary says: "I haven't heard from Fred. Tried calling him; no reply". 54 On 11 May: "Called Fred today; left message but he did not call me back". 55 Underneath that is, "Ian signed me up today. Hope to get help with work situation". On 14 May:

"I tried calling Fred yet again today but was still unable to get hold of him. Left a message at Divine Image and his mobile. He didn't return my call". 56 I should have also mentioned an important earlier entry, the very first, which is dated 22 April: "Fred texted me at 6pm this evening and cancelled my shift, starting at 8pm and gave it to someone else because I couldn't do the extra shift he asked me to do for earlier today. Not very happy about this". 57 Again I say, the diary entries are very plausible and I have no reason not to accept them as legitimate evidence of the course of events. 58 In respect of the disagreements in the diary entries of 30 April, I found the respondent's explanation in respect of the claim by the applicant that he had referred to some unhappiness with paperwork filled out a month previously when the applicant was supervising, as being very unconvincing. Mr Alam's account was simply that the client had told the applicant that the client preferred someone else because of their ability to do paperwork. 59 The applicant was unable to provide real details as to what the respondent referred to in this message, but in particular, he had been abusive. 60 The applicant explained the difference in respect of the Union's comment that the respondent had said that as a casual, the applicant was not protected by any Union, on the basis that his more general statement in his application of having no rights under unfair dismissal provisions was an effort by him to summarise the situation and amounted to the same thing. 61 All in all, I do have preference for the applicant's evidence in this matter. The text message and diaries show to me that the applicant suffered the cancellation on 22 April of an earlier shift for which he was already rostered when he advised that the was unable to work an additional shift that day, but the respondent also, as shown in the text message, and in the diary entry of the 29th, went ahead and cancelled other shifts that week. When approached, the respondent made no mention of the alleged fact, as he did in the Commission here today, that the campaign for the Toohey's alcohol was supposed to finish on 30 April as a reason for dispensing with the applicant's services. Indeed, the applicant appears to have been rostered on 1 May at the very least, if not 2 May - after the alleged finalisation of the Toohey's campaign. 62 Also shown in evidence here was that the respondent very likely, with 300 staff, had other work available for the applicant even if the Toohey's campaign had in fact finished. It was more than curious that the respondent did not back up his own version of events in these diary entries, which I have found to be genuine. There was no reference and neither was there any reference by him in evidence before the Commission that he was saying to the applicant that his employment was really all about the Toohey's campaign - that led me to conclude that the so-called campaign was a convenient but fallacious excuse to disguise the fact that the applicant's services were dispensed with in a reprisal for not putting himself out to work the additional shift on 22nd April, 2004. 63 I find that the respondent should have offered further employment which the applicant was in a position to receive. Whether that employment was as steady as the other, is not necessary to be found by me. The applicant gave evidence of being a good employee which was not refuted and indeed, to some extent, conceded by the respondent. Again, this supports the issue that he could have been given further shifts. 64 I have taken into account the lack of predictability and given the circumstances, the lack of clarity, in that I appreciate that it was not possible for the applicant to have established what shifts he might have received had he not been dismissed from 27 April. 65 The respondent alluded earlier to the fact that the respondent relied upon the applicant still being technically employed because his records were not destroyed. Whilst that is not a major issue of credit, I must say it did not assist the respondent's credibility to rely on such a thin line of argument, based upon a supposed technicality of still being "on the books", so to speak. Whether he might have been offered more shifts later down the track if he had not lodged this application appears highly unlikely. It appears to be simply the position that there were certainly no further offers to employ the applicant at any stage, in any other work and that it's clearly a dismissal in the context of what messages were exchanged at the time as outlined earlier. 66 In respect of the charge that the applicant had on one occasion not attended by reason of accompanying his partner who suffered serious illness in hospital, the claim missed its target and I found the respondent's attempts to show that as a reason for the applicant's unfair treatment as not reflecting very well on the respondent.

67 I believe the applicant's version of events in respect to that incident, given my general assessment of credit, and that there was no detriment to the respondent at the time anyway, apart from the fact that the applicant not being able to fax some information on that occasion. 68 The sudden change of shift on 22 April is not something which any Award would usually countenance even if there was such an Award provision. The sudden change and cancellation, given the relative systematic nature of the applicant's shifts was wrong in principle at the very least and should not have resulted in the applicant's dismissal. 69 All in all, I have come to the conclusion that the applicant's dismissal was within the jurisdiction of this Commission, and that his dismissal was harsh, unjust and unreasonable. The orders I make have had to take into account the particulars given to me in evidence by the applicant of his efforts to procure other employment which were fairly successful, and the earnings he received in that other employment. I have done some calculations and I have also taken into account the fact that the applicant may not have been guaranteed the same sort of shifts as he had before dismissal. 70 But all in all, the figure that I have arrived at, coincides with the claim he made to this Commission of the payment of $2,000 to be made within 21 days of the release of this decision.

ORDER 71 Devine Image Group Pty Limited is to pay to the applicant, Mr Alex George Temesvari in Matter No. IRC 3860 of 2004 an amount of $2,000 within 21 days of the release of this decision, i.e. from 22nd April, 2005.

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