RYAN v ABORIGINAL GALLERY OF DREAMINGS [1997] IRCA 205

DECISION NO: 205/97 CATCHWORDS

INDUSTRIAL LAW - EMPLOYMENT CONTRACT - EMPLOYMENT RELATIONSHIP - JURISDICTION - whether TERMINATION OF EMPLOYMENT at the initiative of the employer - alleged UNLAWFUL TERMINATION - CONSTRUCTIVE DISMISSAL - BREACH OF CONTRACT - alleged DISCRIMINATION after giving evidence against employer -whether breach of implied duty to maintain trust and confidence - VALID REASON - RESIGNATION - ABANDONMENT - REMEDY - COMPENSATION .

Workplace Relations Act 1996 (Cwth) ss170CK, 170CR 170DE, 170DF, 170EA, 170EDA, 170EE; Workplace Relations & Other Legislation Amendment Act 1996 (Cwth) Sch. 16; Industrial Relations Court Rules O74. Evidence Act 1995 (Cwth) s64.

Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1995) 63 IR 1; Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200; Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154; Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370; Slifka v J W Saunders Pty Ltd (1995) 67 IR 317; Western Excavating (ECC) Ltd v Sharp [1978] ICR 221; Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666; on appeal [1982] ICR 693; Blaikie v SA Superannuation Board (1995) 64 IR 145; Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372; Russian v Woolworths (SA) Pty Ltd (1995) 64 IR 169; Brighouse Ltd v Bilderbeck [1995] 1 NZLR 158; Burazin v The Blacktown City Guardian (unreported, Industrial Relations Court of Australia, Madgwick J, 15 December 1995; supplementary reasons, 2 August 1996); on appeal (1996) 142 ALR 144; Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370. RYAN v ABORIGINAL GALLERY OF DREAMINGS VI97/1281

Before: MURPHY JR Place: MELBOURNE Date: 20 JUNE 1997

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI97/1281

BETWEEN: KATE RYAN Applicant

AND ABORIGINAL GALLERY OF DREAMINGS Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 20 JUNE 1997 MINUTES OF ORDERS

ORDER :

[1] The Court declares the respondent has breached ss170DE(1) and 170DF(1)(e) of the Act.

[2] The Court orders the respondent pay to the applicant the sum of $18,000.00.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI97/1281

BETWEEN: KATE RYAN Applicant

AND ABORIGINAL GALLERY OF DREAMINGS Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 20 JUNE `1997. REASONS FOR DECISION

The proceeding. The proceeding commenced by application to the Australian Industrial Relations Commission under the Industrial Relations Act 1988 (Cwth). When the Commission certified that it was unable to resolve the matter by conciliation, and the parties elected not to have the matter dealt with by way of consent arbitration, it was referred to the Industrial Relations Court of Australia. Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cwth) transferred that court's jurisdiction under the Industrial Relations Act 1988 (now retitled the Workplace Relations Act 1996 (Cwth)) ("the Act"), and any proceedings where the court had not commenced the substantive hearing, to the Federal Court of Australia: items 63 and 64. Sch 16 also provided for the appointment of the judicial registrars of the Industrial Relations Court of Australia to a comparable office in the Federal Court for the balance of their respective terms: items 73 and 19. Item 67 of Sch 16 preserved as Rules of the Federal Court the rules made by the judges of the Industrial Relations Court. Those rules delegate to each judicial registrar all the powers of the court in proceedings that relate to a claim that the termination of an employee's employment was unlawful: O74 r2. As a result of these provisions, and as I have taken the relevant oath of office, this matter is properly before me. Introduction. The applicant seeks a remedy pursuant to s170EA of the Act. She contended that her employment had been terminated at the initiative of the respondent and that the circumstances contravened ss170DE and 170DF(1)(e) of the Act. The respondent's defence in the proceeding was that the Court lacked jurisdiction as the applicant had abandoned her employment. Background. The applicant was employed by the respondent as an art consultant from October 1993 until November 1996. She holds qualifications in fine arts, teaching, and graphic design. Events over the period from late September until November 1996 led to the cessation of her employment. The central issue was whether the applicant was forced to leave her employment as a result of actions by Mr Hank Ebes, the respondent's managing director. In 1996 the staff at the gallery, in addition to the applicant, consisted of Mr Ebes, his daughter Ms Tara Ebes, who was the gallery manager, a full-time art consultant Ms Mayumi Ucheda, two part-time art consultants Ms Allison McDermott and Ms Gerri Jones, and Mr Stephen Cook, a packer/cleaner. Mrs Barbara Ebes also attended the gallery from time to time. The applicant gives evidence in proceedings against her employer. On 26 September 1996 the applicant gave evidence in a civil trial in the County Court of Victoria wherein a former employee of the respondent was suing the respondent for personal injuries arising out of an accident she alleged occurred at the gallery. The applicant was a friend of the plaintiff and had been subpoenaed to attend. She was the only other employee of the gallery present when the incident occurred, however she did not witness it. The plaintiff alleged that she had injured her back when showing customers some paintings upstairs. The applicant was downstairs at the time and her evidence concerned the size of the frames used by the respondent, and matters relating to the work environment, including layout and training. At some stage in her evidence the applicant described Mr Ebes as unapproachable. The applicant did not work on 27 and 28 September. On Sunday 29 September she attended at work and performed her duties as normal. She spoke briefly to Mr Ebes in the middle of the afternoon. At 5.00 pm as the applicant was about to leave Mr Ebes stood in the doorway of the office. He raised the issue of the court proceedings, and the applicant's evidence, and handed the applicant a letter which he said contained his thoughts and feelings in relation to her evidence. He told the applicant that if she wanted to continue to work at the gallery she should consider its contents. Mr Ebes then stated that the applicant had come across as a very hostile witness, been negative, and that what she had said was not very sympathetic or loyal to the gallery. He said that the applicant and the plaintiff in the case had colluded to set him up. The applicant had replied that she had told the truth. Mr Ebes had replied that "there is the truth, and there is the truth". Mr Ebes attacked the applicant about what she had said about the way she had moved paintings and her evidence as to the size of the frames used. He alleged it was inaccurate. The conversation moved to staff relationships and Mr Ebes advised the applicant that other staff members found her difficult to work with. He raised an incident three weeks earlier when the applicant and Mrs Ebes had an argument after the applicant had arrived late. Mr Ebes said such incidents should not occur and would not be tolerated. He said that there were matters the applicant was unable to discuss with him. The applicant raised a couple of matters that she said Mr Ebes had not addressed. The applicant's evidence was that Mr Ebes raised his voice at times and was aggressive and intimidating. At some stage in the conversation the parties moved out into the body of the gallery. Mrs Ebes and Ms Ucheda were present in the gallery. The applicant was upset by what occurred. She left the gallery and proceeded to Albert Park to her boyfriend's house. She met her boyfriend, Mr David Brustmann, a barrister, near his house. He described her as distraught and crying. The applicant gave him a garbled account as to how Mr Ebes had been abusive and aggressive towards her. He read the letter and advised the applicant to write down what she remembered. The applicant then proceeded to record what happened. Mr Brustmann's evidence of what the applicant told him at the time, and the applicant's notes (Exhibit A6) are admissible as first-hand hearsay under s64 of the Evidence Act 1995 (Cwth), even though their admissibility offends the common law rule against self-corroboration. The letter Mr Ebes handed to the applicant on 29 September (Exhibit A1) commences: "Your evidence as given during last weeks legal proceedings against us were [sic] to say the least surprising, and an indication of your feelings and attitude towards me and the Gallery you have worked with over the past three years. Your inability to discuss issues about your work environment with me or Tara in the past is now a matter of record but one to be forgotten for the good of the morale and atmosphere in the Gallery where we all choose to work and be not only safe and secure, but enthusiastic and loyal. In the past I have mistakenly ignored negative feedback about your behaviour and attitude at work from fellow employees and management for the sake of harmony. From recent discussions with them it seems to be a particular problem associated with you. Through lack of communication and on my part, more specific direction, an unpleasant atmosphere has developed to be resolved as soon as possible for the good of us all........" The letter goes on to state that the mistakes of the past should now be corrected and that the incident with Mrs Ebes should not have occurred. The letter also refers to the applicant as accessing company files not related to her work and states that this is detrimental to "our future work relationship". The letter concludes with a request that the applicant commence her outstanding annual leave from the previous year on the next day, Monday 30 September 1996, returning Monday 7 October 1996. She is then required to commence the current year's annual leave on 17 October for a period of four weeks. That evening the applicant telephoned Ms Mayumi Ucheda to discuss the events of the afternoon. Under cross-examination she admitted that she may have admitted to Ms Ucheda that her boyfriend was a lawyer and that the respondent may have had some tax problems. This was a reference to an amount the applicant was aware the respondent had entered in its records as a payment to Ms Ucheda for an airfare to Japan. Ms Ucheda had told the applicant that Mr Ebes had not paid for the airfare. Ms Ucheda gave evidence that in fact the airfare had been paid by Mr Ebes, but she had declined to advise other staff members that this was the position. On 1 October 1996 Mr Ebes wrote a further letter (Exhibit A2) to the applicant referring to the telephone call to Ms Ucheda. It read: "After our discussion on Sunday, Sept.28th (sic) during which I gave you a letter with my express wishes for a future work relationship based on trust, understanding and open dialogue I did not quite appreciate your reaction. Your phone call to Mayumi which greatly up set her was reported to me immediately. You were way out of line. I did not want to bother Mayumi on her day off so I waited until today for her explanation. A transcript of the call and your remarks about "not returning to work", "an argument we supposedly had other than the discussion witnessed by both Mayumi and Barbara", mention of your boyfriend "who is a lawyer" and "possible problems with my tax" are hardly in keeping with your claims of loyalty. These and other matters will be discussed at work next week and I suggest you refrain from contacting Mayumi or Gerri (to who you spoke today) until then. If you have anything thing (sic) you want to discuss you can contact me anytime." The applicant replies. On 4 October 1996 the applicant had a four page letter (Exhibit A3) hand delivered to the respondent's premises. In it she notes that prior to giving evidence in the County Court, except for one matter a year after she commenced, there had not been any negative feedback as to her behaviour and attitude. The letter goes on to provide a defence to the matters raised by Mr Ebes in his letter of 28 September. In particular it notes that the incident with Mrs Ebes was an over-reaction on her part, and she denies wrongly accessing the company files. The letter states that Mr Ebes was seeking to punish her for giving evidence and "to manoeuvre [the applicant] into a position where it is impossible for[her] to continue to work in the Gallery". The letter states this was the first time annual leave was the subject of dictation by Mr Ebes, as distinct from negotiation. The letter concludes: "I should be most grateful if you could, at an early date, indicate to me whether my desire to continue in work I love can be done in an environment which is safe and secure and where I will have the loyalty of my employer and respect for my work. In the meantime, to allow you to reconsider the steps you are obviously taking to force me to resign, I wonder whether it would not be better for my annual leave for the current year to commence on Monday the 7th October, 1996. Clearly whilst you are in such a distressed state about my evidence in the case, it is dangerous for you or me to be making decisions about my future with your Company. I would, therefore, appreciate you ringing me urgently to tell me whether I might commence my annual leave on the 7th October, 1996." On 4 or 5 October 1996 Ms McDermott left a message on the applicant's answering machine agreeing she could commence her annual leave immediately. The applicant then went on a week's holiday and returned looking for work. On 1st and 8th November the applicant did emergency teaching. She was due to resume work after her annual leave on about 11 November, but did not do so, nor did she contact the respondent. On 18 November Mr Ebes wrote to the applicant (Exhibit A4) stating that: "your failure to return to work following your annual leave and your failure to contact me by telephone or in writing .......constitutes abandonment of your employment." The applicant issued this proceeding on 25 November 1996. The respondent's attack on the applicant's credit. The only substantive evidence by the respondent in the proceeding was from Ms Mayumi Ucheda. She was present in the gallery on 29 September but said she did not listen to what was said. She said Mr Ebes did not raise his voice. Mr Ebes and Mrs Ebes are apparently in Europe curating a travelling art exhibition. Ms Tara Ebes works in Sydney. The present manager of the gallery, Ms Alison McDermott, gave evidence confirming that she made a telephone call to the applicant advising that it was in order for her to commence her current year's annual leave from 7th October. She gave no evidence that she had read the applicant's letter of 4 October. It was put to the applicant that her letter had not in fact been delivered, but I am satisfied it was received by the respondent. Findings: applicant's court evidence essentially uncontradicted. The applicant was the subject of intense cross-examination as to her relationship with the plaintiff and the evidence she gave in the County Court. She admitted she was friendly with the plaintiff but denied she knew that the plaintiff had not sustained an injury at work but rather, as apparently alleged by the respondent in the proceeding, had sustained the injury while moving house one weekend. I am satisfied that the applicant's credit survived the attack made on her in cross-examination. Importantly the respondent, which must be fixed with knowledge of her evidence in the County Court, did not seek in any serious way to contradict that evidence in order to make good what was in effect Mr Ebes' allegation that the applicant had breached her duty of fidelity by giving a false or deliberately inaccurate account in the County Court. The inference I draw from this is that the applicant's account was substantially correct. Indeed, the comment of Mr Ebes - "there is the truth and there is the truth" essentially accepts that. The meaning of "termination of employment at the initiative of the employer". The applicant carries the onus of proof that she is within the jurisdiction of the Court. It was the respondent's case that the applicant had abandoned her employment and thus there was no termination of employment at the initiative of the employer. The solicitor for the applicant submitted that the actions of the respondent amounted to termination of employment at the initiative of the respondent. He relied principally on Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200. That case dealt with what was an ultimatum: resign or the police will be called in. At 205 the court said: "It accords with the purpose of the Convention to treat the expression "termination at the initiative of the employer" as a reference to a termination that is brought about an employer which is not agreed to by the employee...... In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship". These passages were adopted by Moore J in Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154. At 160 he went on: "However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct." The implied term of confidence and trust. These authorities on the meaning of termination of employment at the initiative of the employer must be read in the light of the recently articulated recognition in Australia of an implied term in a contract of employment that the employer should not conduct itself in a manner that was likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee. In Slifka v J W Saunders Pty Ltd (1995) 67 IR 316, North J applied Mohazab (above). At 318 and 325 he also considered an alternative "contract" test derived from Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 where at 226 Lord Denning MR said: "If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed." North J at 319 noted the different background to the two tests and noted that the statutory formulation: "may well apply where the contract of employment was terminated by the employee as a result of conduct of the employer which fell short of evincing an intention not to be bound by the contract of employment". The "contract" test espoused in Western Excavating (above) has been modified and the modern law derives from the judgment of Browne-Wilkinson J in Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666, the principles of which were summarised by Olsson J in Blaikie v SA Superannuation Board (1995) 64 IR 145 at 165 as follows: " · there is implied in a contract of employment a term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence or trust between employer and employee. · to constitute a breach of that type it is not necessary to show that the employer intended any repudiation of the contract - it is a matter of looking at the employer's conduct as a whole and determining whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it. " The Woods (above) formulation, or the alternative test used by Lord Denning MR on appeal [1982] ICR 693 at 698, of a duty that an employer be "good and considerate", now has extensive Australasian support: Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372; Russian v Woolworths (SA) Pty Ltd (1995) 64 IR 169; Brighouse Ltd v Bilderbeck [1995] 1 NZLR 158; Burazin v The Blacktown City Guardian (unreported, Industrial Relations Court of Australia, Madgwick J, 15 December 1995; supplementary reasons, 2 August 1996); on appeal (1996) 142 ALR 144; Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370; and Carrigan v Darwin City Council (unreported, Industrial Relations Court of Australia, von Doussa J, 20 March 1997); cf Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99. In Burazin (above) the trial judge held that the employer had been in breach of such a term. This finding was not challenged on appeal. One issue on appeal was whether there could be a claim for damages for breach of such an implied term. The court declined to directly decide whether to refuse to follow English Court of Appeal decisions to the effect that damages could not be recovered for breach. The court noted at 152 however that "the very purpose of the implied term is to protect the employee from oppression, harassment and loss of job satisfaction." In considering the question whether damages could be recovered for breach, the court at 154 further elaborated the importance of the term within the contract: "Although it might seem strange to concede the existence of an implied contractual term but deny its capacity to give rise to a liability in damages, it must be remembered that the term is intended to bolster an ongoing employment relationship. To permit an action for damages during the currency of the employment relationship, it might be argued, would be antithetical to the reason for implying the term; the action itself would presumably cause a further deterioration in the relationship. That argument does not apply in a case like Malik [Malik v Bank of Credit & Commerce International SA [1995] IRLR 375], where the relationship had already come to an end. But in some such cases, the implied term will have played its part in enabling the employee to improve his or her legal position by placing responsibility for the termination on the employer." These comments are important here in characterising the conduct of the respective parties within the tests in Mohazab (above), or within the contract test discussed above, to determine who was responsible for terminating the employment. Who really terminated the employment? In order to determine who really terminated the contract here, it is necessary to make findings as to the state of the employment relationship prior to 29 September. I am satisfied that in the months prior to that date Mr Ebes had not raised with the applicant any matters in relation to her conduct, performance or attitude. I am satisfied that there was a minor incident with Mrs Ebes approximately three weeks before that date but the matter was not taken any further. I accept the applicant's account that both parties over-reacted to a minor incident of lateness. On 26 September the applicant gave evidence for the plaintiff in the County Court. I am satisfied that on 29 September Mr Ebes confronted the applicant as she was leaving work that day, and I accept the applicant's account of that conversation. In particular I am satisfied that Mr Ebes accused the applicant of disloyalty and of colluding with the plaintiff in her evidence. She denied this and said she told the truth. I am also satisfied that he stated to her that "there is the truth and there is the truth". I am satisfied at that point Mr Ebes then sought to raise matters relating to the applicant's attitude that he had not previously raised in any formal manner with her. Finally, and inexplicably as a busy period with other staff taking leave was approaching, Mr Ebes then unilaterally directed the applicant to take one week's outstanding annual leave, and then from 17 October 1996 to commence four weeks annual leave, which was her entitlement for the year commencing on that day. This was contrary to past practice. I am further satisfied that in her letter of 4 October the applicant indicated that from Mr Ebes' remarks on 29 September she drew the conclusion that he wished her to cease employment with the respondent. She invited Mr Ebes to address that matter with her. I am satisfied that Mr Ebes failed to do that and then when the applicant did not return from her annual leave, proceeded to write to her and advise her that she had abandoned her employment. I am satisfied that this was not an abandonment of employment but a termination of employment at the initiative of the respondent. The initiating actions were the accusations made by Mr Ebes after the applicant gave evidence in the County Court. I am satisfied that the applicant did not give false evidence in that case and therefore there was no basis for the accusation that the applicant had been disloyal to her employer. Further the respondent, consistent with the actions of a "good and considerate" employer, was not entitled, in confrontational circumstances, to dredge up matters from the past. The applicant was entitled to consider her position after the incident and to elect to accept what was a repudiation of the employment agreement by Mr Ebes. She did this by not returning to work at the end of her annual leave. She in effect resigned, but that resignation was initiated by the respondent's actions. The respondent's actions were intended to achieve that outcome. It has initiated the termination of the applicant's employment. Breach of the duty to maintain trust and confidence. An alternative approach is to consider whether the respondent's conduct as a whole can be characterised as amounting to action that was likely to destroy or damage the relationship of trust and confidence between the parties: Burazin (above). On this issue the absence of Mr Ebes and Ms Tara Ebes assumes importance. An employment contract is often dynamic and whether any particular event fractures the relationship can often depend on an assessment of the demeanour of the parties in playing out the events. Here the evidence of the applicant's reaction to Mr Ebes' conduct is essentially unchallenged. While his letters sound moderate and consistent with an ongoing relationship of confidence and trust, they were not accepted as genuine in this respect by the applicant in her letter of 4 October. She described his conduct on 29 September as abusive and I accept her evidence on this point. The applicant invited Mr Ebes to take a step to assure her that she would have a secure work environment. Mr Ebes responded with silence. He made no effort to allay the applicant's concerns even though it is implied in his letter of 1 October (Exhibit A2) that he would be in touch with her. Neither he nor Ms Tara Ebes, who is referred to in his letter of 29 September, have come to court to seek to contradict the applicant's account of the fracturing of the employment relationship. I am satisfied that the respondent's accusations regarding the applicant's evidence, the raising of matters previously passed over at the time, the unilateral imposition of a requirement that she immediately take all her annual leave, and the failure to respond to the letter of 4 October, fall squarely within the Woods (above) test as conduct that in all the circumstances, the applicant was not "expected to put up with". Application of the Act. The applicant has satisfied me that the Court has jurisdiction under s170EA of the Act. The respondent carries the onus of proof that it had a valid reason to terminate the applicant's employment: ss170DE(1) and 170EDA(1). The applicant also alleged that a reason for the termination of her employment was because of her participation in the County Court proceedings. This is a reason for termination that is proscribed under the Act and the respondent carries the onus of proof that the reason for termination did not include such a reason: ss170DF(1)(e) and 170EDA(2). The respondent did not attempt to discharge its onus of proof on either of these matters. I am satisfied that the respondent has breached ss170DE(1) and 170DF(1)(e) of the Act and I so declare. Remedy. The applicant did not seek reinstatement to her position. It was clear from her evidence that she now wishes to close this chapter of her life. She sought compensation based on the losses she had sustained as a result of the unlawful termination of her employment. At the time she was terminated her annual salary was $34,500. In addition her employer was liable for statutory superannuation contributions, making her total remuneration $36,000. Under s170EE(3) of the Act the limit of compensation is thus $18,000. Despite a wide search for alternative full-time positions since she was terminated, the applicant has only been able to obtain a part-time position. She is currently working two days per week at a private school. Taking into account her earnings, to the date of trial her financial losses are $11,100 and are continuing at the rate of $350 per week. I am satisfied that it is highly probable that the applicant's losses will at least exceed the statutory limit under s170EE(3). No reasons were put by counsel for the respondent why the applicant's employment would not have continued had the unlawful termination not occurred. She had been employed for some three years in a position which she said she enjoyed. There is no reason why her employment would not have continued had Mr Ebes not unjustifiably taken offence at the evidence she gave in the County Court proceedings. The actions of Mr Ebes infringed s170DF(1)(e) of the Act. This provision recognises the important public right of the applicant to give evidence in proceedings against her employer without recrimination. The importance of that public right, which is described in the literature as protection against an abusive dismissal, is recognised in the onus of proof provision: s170EDA(2). It is also recognised in the recently enacted s170CR of the Act which empowers the court to impose a penalty where an employer has contravened s170CK, the successor provision to s170DF of the Act. These matters are relevant on the issue of compensation: Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1995) 63 IR 1 at 9. I am satisfied that the applicant's losses to date and in the future will exceed the statutory limit of compensation and I see no discretionary reasons why she should not be compensated for those losses. I propose to order that the respondent pay the applicant the sum of $18,000. ORDER : [1] The Court declares the respondent has breached ss170DE(1) and 170DF(1)(e) of the Act. [2] The Court orders the respondent pay to the applicant the sum of $18,000.

I certify that this and the preceding fifteen (15) pages are a true copy of the reasons for decision of Murphy JR.

Associate: KAREN HALSE Dated: 20 JUNE 1997

APPEARANCES

Solicitor appearing for the applicant: MR CHRIS MUIR Solicitors for the applicant: TANYA CIRKOVIC & ASSOCIATES

Counsel appearing for the respondent: MR DENNIS CONNELL Date of Hearing: 28 & 29 MAY 1997 Date of Judgment: 20 JUNE 1997