Simons v Cordon Bleu Australia Pty Ltd [1996] IRCA 588

DECISION NO:588/96 CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether a the INITIATIVE OF THE EMPLOYER - Industrial Relations Act 1988 - s 170 EA Westen v Union Des Assurances De Paris, Industrial Relations Court of Australia, Madgwick J, 28 August 1996, NI 2819 of 1995, (unreported) Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR at 200 Bechara v Gregory Harrison Healy & Co, Industrial Relations Court of Australia, 19 April 1996 (unreported).

SIMONS -v- CORDON BLEU AUSTRALIA PTY LTD NI 1688 of 1996

Before: TOMLINSON JR Place: SYDNEY Date of Hearing: 17 October 1996 Date of Judgment: 29 NOVEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

NI 1688 of 1996

BETWEEN: Maureen SIMONS Applicant

AND CORDON BLEU AUSTRALIA PTY LTD Respondent

BEFORE: TOMLINSON JR PLACE: SYDNEY DATE: 29 NOVEMBER 1996 MINUTES OF ORDERS

THE COURT ORDERS THAT: 1. The application of Ms Maureen Simons be dismissed. Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

NI 1688 of 1996

BETWEEN: Maureen SIMONS Applicant

AND CORDON BLEU AUSTRALIA PTY LTD Respondent

BEFORE: TOMLINSON JR PLACE: SYDNEY DATE: 29 NOVEMBER 1996 REASONS FOR DECISION This is an application for reinstatement and compensation brought by Mrs Maureen Simons under the Industrial Relations Act (Cth) 1988. The respondent was engaged in the business of importing and selling specialist cookware utensils and part of its marketing plan involved direct selling and the holding of demonstration evenings to potential customers at its premises. The potential customers then partook of the food prepared. In his opening address on behalf of the applicant Mr Chamberlain of counsel stated the evidence would show that the applicant was terminated in breach of s 170DE(1) in that there was no valid reason, and that secondly the applicant was terminated in breach of s 170DF(1)(e) and that thirdly the applicant was under-paid in accordance with her award. There was no evidence placed before the Court during the evidence in chief as to what that Award was. On behalf of the applicant Mr Chamberlain stated that the applicant was harassed continually each day by the respondent. That claim was not particularised and no evidence provided so I am unable to deal with that matter. Mr Chamberlain also stated that during the course of her employment the applicant was transferred from the position of office administrator to the position of receptionist without consultation or counselling. Mr Chamberlain said the evidence would show apparently that the applicant was terminated without having been given the opportunity to deal with allegations involved with her dismissal. In her evidence in chief the applicant said in November 1995 she answered an advertisement for the position of receptionist and that on behalf of the respondent she was interviewed by Ms Esme Thornett. The applicant took her references and her resume with her to the interview and stated that she had experience as a departmental store manager and that she was familiar with staff management and staff problems generally. At the interview the applicant said Mrs Thornett offered her the job of office administrator at the Granville premises of the respondent, which she accepted. Computers were not involved with the job of office administrator, and the Court heard evidence that the duties included completion of forms for the application of finance and of photocopying driving licences of applicants for finance. There was no mention apparently that the applicant would have to wash dishes and there was no mention of paid overtime. At that initial interview it was the evidence of the applicant that Mrs Thornett told her that she was planning to retire within 3 months and that the applicant was to be trained to take over her job. I am unable to place weight on that statement as I am of the view that a person who applies for a job as a receptionist is rarely offered a senior position at the first interview. It is possible that some form of future training might have been referred to. In her evidence in chief the applicant told the Court that part of her duties included washing the dishes the respondent's customers had used the night before in cooking demonstrations. The applicant said on occasions she was asked to wash dishes used by the managing director personally for his meals the Court heard evidence of other employees washing dishes for the respondent upon being requested to do so. In April 1996 the routine in the office was changed and the upstairs staff, of which the applicant was part, were directed not to wash customer dishes any more. Accordingly I am unable to accord much weight on the statement in the application for relief that the applicant felt the reason she was terminated was that she refused to wash dishes, bearing in mind the cessation of employment took place in May, and further, it was the evidence of the applicant that she never objected to her dishwashing duties to the respondent. The applicant stated she had never seen the document filed in the Commission under s 170 EA signed by her authorised representative that stated inter alia "I believe I was terminated following my refusal to wash the employers breakfast dishes...". The applicant said sometimes she was of the view that the managing director stayed overnight on the premises - I am unable to place weight on that evidence. The applicant gave evidence of continual training and supervision provided to her by Mrs Esme Thornett. It seems Mrs Thornett was of the view such supervision was necessary and the applicant told the Court she did not have a good relationship with Mrs Thornett in that she felt she was accorded blame for things she had in fact not done, such as the loss of documents. The applicant expressed the view that she did not need such supervision and that she would have been better in a room working by herself. In cross examination the applicant agreed that Mrs Thornett was the national administrator and her job was recruitment and training. From the evidence of the applicant alone, it is clear that Mrs Thornett invested an enormous amount of time and effort in the applicant. The applicant stated that on one occasion Mrs Thornett said to her that the respondent would have to think about getting someone else for the position - it is clear that the applicant believed at that time that her job was in jeopardy. No time was directly ascribed to that conversation, and it probably took place within the first 3 months of employment. Exhibit 1 was a bundle of timesheets indicating that on occasion the applicant worked overtime. The applicant said nothing was said about overtime at the initial interview and further stated that during the course of her employment overtime was raised with Mrs Thornett, who advised her not to claim for this item as the managing director would not pay it. No further evidence was received on this point. I am satisfied that the applicant did not merit overtime payments, as there was evidence by the applicant that she was given time off in lieu for the times she worked overtime. In that regard I agree with the submission of Ms Figgis that the claim for overtime simply cannot be proven. Exhibit 2 was a 2 paged letter dated 7 March 1996 that stated inter alia; "Following is your 3 monthly review starting date 27/11/96. It has been over 3 months since you started with Cordon Bleu as a Branch Administration Clerk. It is Company Policy to review employee's performance from time to time, as was discussed at the initial interview. Unfortunately your performance has not been up to the standard the Company has set... Please keep this assessment for your records, as these are serious matters. We will review the situation again within one week and unless your ability to handle all aspects of our administration improves we may have to find someone else for this position." This exhibit detailed various clerical faults on behalf of the applicant and stated that on occasion the applicant had been late for work. The evidence of the applicant at this point was confusing. She said the respondent said nothing to her about being late until she received this letter and yet later said the matter was raised with her on 22 January 1996. At one stage the applicant said she always arrived early to work and then on the other hand said she began arriving late to work as she did not want to wash dishes. Again, the applicant said she did not agree with the contents of exhibit 1. Later the applicant said that the complaint concerning incorrect itemising was valid. Later again in her evidence the applicant agreed that when she was an office administrator she made mistakes with the payroll. The applicant agreed that at her initial interview for employment with the respondent she was told a 3 month review would be performed. To my mind exhibit 2 falls squarely into that category and it is noted despite criticisms, the employment of the applicant continued. I found the attitude of the applicant to be unrealistic in that somehow she thought exhibit 2 to be unfair. In that regard the applicant stated it should be remembered that she had only been actually working for the respondent some 6 or 7 weeks, allowing for Christmas, and she was still learning the job. The job was not complicated and it is my view ample time was provided prior to exhibit 2 for the applicant to have mastered the duties involved. Again, on the one hand the applicant told the Court she found the attitude of Mrs Thornton to be overbearing and that she was of the view should could work unaided and yet it was clear that she relied upon Mrs Thornton to guide her when she needed information. To my mind the two statements are not compatible. Generally I was not able to accord the evidence of the applicant much weight. From April 1996 the applicant agreed to train the receptionist Maria to be able to do the applicant's job. The reason given was that the respondent wished staff to be familiar with each other's duties in the case of absence. It was the evidence of the applicant that at the end of a 4 week period she would go back to her old position as an office administrator. The applicant suffered no loss of income and it was clear that her duties however had lessened. Exhibit 3 was a letter dated 17 April 1996 that stated inter alia: "Dear Maurine (sic) Further to letter dated 7 March 1966.... Because the volume of work in Administration was becoming a problem for you , you have now been appointed to Reception/Sales Co-0rdinater (sic). This position cannot be taken lightly. You will need to be more punctual, self motivated and reliable. Your duties will be answering all incoming calls, making sure messages are correct and passed onto correct recipient as soon as possible (sic). Generally assist the Managing Director and Sales Manager as requested and make sure the Reception area is neat and tidy. At Granville we are all part of a Team and as such you will be an important link. We will review your position in one month from the above date and will encourage any feed back you may have for us." The applicant accepted the receptionist job, and that at the end of the month she received exhibit 4, a letter dated 17 May 1996 that stated inter alia; "Dear Maureen, Your position as Reception/Sales Co-Ordinator is now under review...I am not satisfied with the work I have given you to carry out for me...my telephone messages have been incorrect...I am unhappy with your ability to comprehend directions...the position of receptionist has now become redundant.. ...if you want to continue working for this Company I am willing to give you the opportunity to become a Consultant.. we would give you another months trial in this area... We are paying you one week in lieu, which will be paid in the normal manner on Friday 24/5/96. During the whole of next week you do not have to attend work this will give you the opportunity to think about either accepting (sic) the position of a Consultant offered to you or finding another job. Please advise us of your decision by Friday 24/5/95. (sgd) John Auciello, Managing Director." The applicant stated it was her view that exhibit 4 was a letter of termination. The applicant stated she did not take up the offer outlined and that towards the end of her employment there was much less work for her to do and that things at the Granville office had slowed down. It was the evidence of the applicant that she telephoned the office and advised Maria that she would not be accepting the offer. The evidence showed the applicant was made aware of the downturn in work in the Granville office. It is clear the applicant is of the view that she was dismissed altogether and that she also agreed that the washing dishes matter and the overtime matters were not the reasons. The applicant received an Employment Separation Certificate, marked as exhibit "7" that showed the employment was terminated due to "unsuitability for this type of work". I do not agree with the implication in the submission of Mr Chamberlain, page 2 point 6 ("There are offences in relation to the correct completions (sic) of this form") that the respondent in any way knowingly inserted information designed to mislead. The words used by the respondent as for the reasons for the termination are contradictory, as the letter of 17 May 1996 could not clearly be defined as a letter of termination. Nor could the facts before the Court be clearly stated to be that the applicant was terminated. Weight can be placed on the argument that the applicant resigned. The applicant told the Court that she had commenced another job on 2 September 1996 as a telephonist assisting with accounts work. The applicant applied for a position as a receptionist and agreed to take the position of office administrator at a higher rate of pay. In re-examination the applicant stated that she had worked in a department store as a sales assistant but that on this occasion she did not want to do cookware demonstrations and sales. On behalf of the respondent the Court heard from the managing director Mr John Auciello. Mr Auciello said that some of his consultants are on a straight salary, and others are paid according to the calls they make and a third category are retained purely on a commission basis. Sales consultants have the option as to the manner in which they are paid and this option would have been available to the applicant. Mr Auciello said that all employees took turns to wash the coffee cups and saucers - that paper plates etc were used in the cooking demonstrations and that these were then discarded. From the evidence of Mr Auciello it is clear that the alteration in the applicant's working arrangements was caused by a genuine redundancy. Mr Auciello told the Court that he had advised the applicant that expenses had to be reduced and that he felt sorry for her and that he did not want to dismiss her. When the applicant was handed the letter dated 17 May 1996 (exhibit 4) he said words to the effect that he was not sacking her, but that he was giving her the opportunity to work in sales. Mr Auciello told the Court his Granville Office is now closed. In determining whether or not the applicant should be granted relief it is necessary to look at the whole of the relationship between the applicant and the respondent. The applicant was employed and at the initial interview is told after 3 months she would have a performance review. That is done by exhibit 1. The applicant at first stated that she did not agree with the contents and it is clear from her evidence that Mrs Thornton patiently went through all of the matters listed by the respondent as areas of concern. During her evidence the applicant said she did agree with some of the items that the respondent indicated were of concern. The applicant was not terminated at the end of the week as exhibit 1 perhaps suggested may happen, and so the employment contract continued. No evidence was received from the respondent that termination at that point for poor performance was an option. Mr Chamberlain in his submissions referred to the Memorandum of 7 March 1996 and states that it had the effect of terminating her form her previously contracted position. It is my view that in fact he was referring to the letter dated 17 April 1996 marked as exhibit 3. The facts of this case are, on each professional move, the applicant accepted the changes and there was no diminution of salary or status. Initially the applicant applied for a position as a receptionist and agreed to take the better paying position of office administrator. After a time the respondent approaches the applicant and suggests that he would like the applicant and Maria to be able to do each other's jobs, in case of holiday leave or sickness. There was no evidence that there was other staff available to perform the jobs of receptionist or office administrator. Mr Chamberlain on behalf of the applicant argued that the applicant did not agree to exchanging positions with Maria. I can find no evidence to support that submission and do not find it was lower in status in that the position of receptionist was somehow of a lower order and of less importance than the position of office administrator. In support of that argument Mr Chamberlain relied upon Yetton v Eastwood Froy (1967) 1 WIR 104. To the contrary, there was no drop in salary and the Court heard no alteration of conditions of work. To agree to become multi-skilled within an office with no alteration of pay or conditions cannot be argued to be a termination. In that regard the decision of Madgwick J in Gerard Westen v Union Des Assurances De Paris Industrial Relations Court of Australia, NI 2819 of 1995, 28 August 1996 is relevant. There his Honour stated; "The applicant perceived, and in my view correctly perceived, that there was a considerable change in the nature of the new position he was being offered. He was, in effect, to become a senior specialist claims clerk, whose considerable experience and expertise might be available to other people, outside his team, dealing with claims, but it would be at the option of those other people to consult him or not. Continuing to call him a Claims Manager did not make him one. He was thus offered new and different employment from what he had contracted for. He declined it, as was his contractual right. The respondent by its officers made clear that it would not continue to employ him to do his previously-contracted work. He was entitled to, and did, treat the contract of employment as breached in a fundamental way by the respondent and to regard it as terminated at the instance of the employer. I agree, subject to a gloss, with the learned authors of The Law of Employment (3rd Ed.) (Law Book Company 1990), Macken, McCarry and Sappideen: 'In the absence of a contract allowing it, the employer cannot force changes [of job or regrading] on an employee. An attempt to do so will involve the employer in breach of contract if the [employee] presses her or his requirements..."(p 188) The gloss is that this must not be taken to propound undesirable inflexibility: there must be some reasonable give and take. In a rapidly changing world, it would be uncommon for the parties to a contract of employment to envisage no change in aspects of the job. But employers' perceptions as to what are the important aspects of jobs they have promised employees and later wish to change may not coincide with the perceptions of the employees, nor of independent observers, such as courts two which the employees might, in due course repair. Serious, non- consensual intrusions upon the status or responsibilities, as well as upon the remuneration, attaching to a job may well be held to amount to a repudiation of the contract of employment, and their actuality will not be denied merely by the retention of the job's title. That is the drift and the tenor of cases such as Beck v Darling Downs Institute of Advanced Education (Supreme Court of Queensland, No 3865 of 1988, Dowsett J, 20 April 1990, unreported) and Quinn v Jack Chia (Australia) Ltd (1992) 43 IR 91. So it is here. Mr Westen's employment was terminated by the respondent's having indicated that it would not continue to be bound by the contract it had with him as to his employment." I do not agree with the submission of Mr Chamberlain that the exchange of positions with Maria occurred without the consent of the applicant and find that the applicant was fully aware of what was occurring, as she agreed to learn to do Maria's job and that Maria was to learn to do her job. Mr Chamberlain stated "by moving the applicant to the position of receptionist and subsequently making the position redundant, the applicant was not given the opportunity to perform her contracted duties." I cannot deal with this submission as it is not clear to which set of contracted duties Mr Chamberlain refers - those of office administrator or those of receptionist. In the intervening period, the respondent experienced a downturn in work, and the applicant's position became redundant. I rely on the oral evidence of Mr Auciello that the Granville office is now closed and he has been forced to reduce overheads. I found Mr Auciello to be a credible and reliable witness who genuinely tried to do his best for the applicant. Although there were issues of performance of the applicant throughout the hearing of the matter, there were no issues of performance to my mind that were taken into consideration when the position of receptionist was made redundant. In that regard one again has to look at the entirety of the relationship between the applicant and the respondent and throughout the respondent refers to issues of performance which are capable of being interpreted that the employee should try harder and take more care. In submission Mr Chamberlain stated "The allegation of lateness for work is a sham by reason that the staff time sheets are not consistent with the allegations of lateness and even if they are, the time sheets indicated the applicant commenced work earlier than 9 a.m....". I disregard that submission in light of the oral evidence of the applicant that she began to come to work late "in order to avoid doing the dishes." Mr Chamberlain submitted the letter of 17 May 1996 was a letter of termination causing a constructive dismissal. However having heard both the applicant and the respondent give evidence it is a finding of this Court that that letter was not a notice of dismissal - it was in fact an opportunity for the applicant to consider whether or not she again wished to change direction within the scope of her employment. Such a change had occurred before and each time the applicant had not been disadvantaged. There was no evidence the applicant would be disadvantaged again. It is a finding of this Court that the redundancy of the position of receptionist was genuine - the job no longer exists - the respondent does not require that work to be done at all - and the Granville premises have been given up. It was the evidence of the applicant that she did not contact Mr Auciello again - and given that it is a finding of this Court the letter of 17 May 1995 fell more into the category of a letter advising of the redundancy than an actual termination per se, it will never be known what the outcome of further discussions may have been if the applicant had contacted her employer as suggested. The applicant was given a week to think about things, in other words given a week to digest the fact that her job and been made redundant and that the respondent was giving her the opportunity to put her point of view forward. The applicant never put her point of view forward and chose to classify the letter as a termination simpliciter. It could be argued if the applicant did not wish to accept the sales job then the alternative was that she should resign. There is merit in the argument that the letter falls into the category of being a constructive dismissal but the overriding consideration has to be that the respondent did leave the door open and that the respondent did ask the applicant to get back to him. The fact that the applicant did not like or approve of the alternate employment then under offer by the respondent does not invalidate the effort the respondent made to consult with his employee. In that regard see Bechara v Gregory Harrison Healy & Co, Industrial Relations Court of Australia, 19 April 1996 (unreported). In relation to exhibit 4, the case of Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR at 200 is relevant. That was a decision of Lee, Moore and Marshall JJ, considering an appeal. In considering the phrase "termination at the initiative of the employer" the court held that Mr Mohazab had no real choice other than to resign. That was not the case with Mrs Simons. She did have a choice as to what she could do and she chose not to return to the respondent and discuss the matter. The Court said; "In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance the entire process." I agree with the submission of Ms Figgis on behalf of the respondent that the respondent is right to dispute that there was a termination by the employer, and correctly in my view, the employer offers the applicant a month's trial as a consultant. In light of the previous history of the relationship between the parties in no way can it be said the act of the respondent in forwarding exhibit 4 to the applicant was in substance the entire process of a termination. It is a finding of this Court that there was no termination at the initiative of the employer within the meaning of the Act and therefor the application of Mrs Simons is dismissed. I agree with the submission of Ms Figgis that all the submissions of Mr Chamberlain as to Jones v Dunkel (1959) 101 CLR 298, must be disregarded as after the evidence of Mr Auciello the Court indicated that it did not wish to hear further evidence. It is noted that Ms Figgis submitted that counsel for the applicant would have been aware of the further witnesses for the respondent, they being Mrs Esme Thornett and M/s Maria Mesic. I certify that the preceding paragraphs are a true copy of the reasons for decision of Tomlinson JR.

Associate: Dated: 29 November 1996

APPEARANCES

Counsel appearing for the applicant: Mr K Chamberlain

Counsel appearing for the respondent: Ms Dianna Figgis Solicitors for the respondent: Adelsteins Solicitors

Date of hearing: 17 October 1996 Date of submissions: 19 November 1996 Date of Judgment: 29 November 1996