Yumiko Bamba v Charles F Grimes Pty Ltd [1997] FCA 1179 (4 September 1997)

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - no point of general principle

YUMIKO BAMBA v CHARLES F GRIMES PTY LTD

NI 4087 of 1995

MADGWICK J

4 SEPTEMBER 1997

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 4087 of 1995

BETWEEN:	YUMIKO BAMBA Applicant
AND:	CHARLES F GRIMES PTY LTD Respondent
JUDGE(S):	MADGWICK J
DATE OF ORDER:	4 SEPTEMBER 1997
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the judicial registrar is confirmed.

2. Within seven (7) days, the respondent is to pay into court, for payment out to the applicant, the sum of seven thousand nine hundred and eighty dollars and fifty eight cents ($7,980.58), provided that within that period there is filed and served proof of payment to the Commissioner of Taxation of any amounts bona fide believed by the respondent to be so payable on account of tax.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 4087 of 1995

BETWEEN:	YUMIKO BAMBA Applicant
AND:	CHARLES F GRIMES PTY LTD Respondent

JUDGE(S):	MADGWICK J
DATE:	4 SEPTEMBER 1997
PLACE:	SYDNEY

EX-TEMPORE REASONS FOR JUDGMENT

(Revised from transcript)

HIS HONOUR: This case has its difficulties.

The former employee, Ms Bamba, started work with the company Charles F. Grimes Proprietary Limited some time in 1994 and ceased work in mid-October 1995. Mr Grimes, the managing director, and his company have kept no proper records that will enable me to be any clearer about these dates. Mr Grimes says that he has been relying on the advice of his Adelaide accountant in relation to this matter. All I can say is that he ought to seek some New South Wales legal advice because he may be committing continuing offences.

Ms Bamba is of Japanese origin and her English, though I would think adequate for workday purposes, is to some extent limited. She is a 29 year old woman who in 1995 had some marital problems. These culminated in her separating from her husband in about July 1995. Around that time she spoke to Mr Grimes and to his retail manager, Ms Borah, about her marital difficulties and her wish to return to the bosom of her family in Japan.

They talked it over with her in a decent and kindly fashion. She decided to stay in Sydney. At that point she was a valued employee of the company. She had learned the unusually complex stock control and sales procedures in relation to her work, which was selling tourist lines including opals from two or three strategically placed shops that the company had in Sydney. She seemed to be happy enough in the work and I am sure appreciated the kindliness that Mr Grimes and Ms Borah had shown to her in talking over her marital problems with her.

Things proceeded satisfactorily until a point in late September when there was a conversation between Ms Bamba and somebody on behalf of the management of the company. Mr Grimes says that he was present at this conversation. Ms Bamba says that he was not, that she spoke only to Ms Borah. I have no way of resolving that discrepancy.

Ms Bamba's account of the conversation is that she asked for a weeks' holiday and explained that she intended to use that holiday to travel. Mr Grimes' account of it, as supported in the transcript by the evidence of Ms Borah, is that Ms Bamba indicated she intended leaving in "two to three weeks time" in order to travel with her brother around Australia, New Zealand and then to return to Japan.

Mr Grimes' evidence is that he bowed to what he regarded as the inevitable and asked Ms Bamba if she would stay on to train a person whom he intended to hire as her replacement, to which she agreed. It was thought that this would take only two or three weeks.

In early October some opals were stolen from a safe in one of the company's shops. Mr Grimes' conclusion was that one of the two employees at the shop at the relevant time, either Ms Bamba or another employee, must be responsible. He had known the other employee longer and his judgment was that she could not and would not have been responsible for the theft. He concluded in his own mind, although evidence to establish the fact was quite lacking, that Ms Bamba was to blame. Some information came to Mr Grimes that Ms Bamba and her brother were departing the country on 6 October, a scenario which would have fit his suspicions, and having already reported the matter to the police he reported the intended departure to them. The police officers and Mr Grimes went to the airport and the applicant's brother's bag was searched. In fact only the brother was going to Japan and a search of Ms Bamba's home revealed no incriminating evidence.

Mr Grimes believed that the only way in which a case against Ms Bamba might succeed was if he were willing to demand that the other longer serving employee become involved and indicate a preparedness to give evidence. As the latter was on the verge of giving birth to a baby, he did not wish to cause her that distress and he allowed the loss to fall without seeking recompense or the intervention of the criminal law. However, he was determined that Ms Bamba should go and he told her not to come back to work.

He was clear that, on any view, he terminated her employment. The company has not set out to prove that she was a thief. Otherwise, Ms Bamba was a valued employee, so it is clear that there was no valid reason for the termination of her employment. The real issue, on the way the evidence has fallen before me, is how much, if any, compensation should be awarded, because on Mr Grimes' version Ms Bamba was in any event going very soon and was paid up to the day when she last worked, so that her loss was either nil or minimal.

Ms Bamba's case is that she probably would have remained in Sydney where she lived and was looking to remain employed as she liked work with the respondent company, and that, apart from the jewellery theft incident, her employment would probably have continued indefinitely - Mr Grimes and Ms Borah thought well of her.

Ms Borah has not been called to give evidence before me and, on any issue where she and Ms Bamba are in conflict, I will need to prefer the evidence of Ms Bamba, since I received no adverse impression of her as a witness. But it is only fair to say that I received no adverse impression of Mr Grimes as a witness either. They both appeared to be perfectly respectable people and they both gave the impression of doing their best to assist the court, due allowance being made for the capacity of interest to determine consciousness.

So one tries to discover from the surrounding circumstances where the truth probably lay. Nothing is more common than that there can be misunderstandings, and the fact that there had got about among other employees the idea that Ms Bamba would be leaving before the jewellery incident only indicates to me, what is common ground, that there was a conversation and that, at least for some time commencing soon thereafter, Ms Bamba would not be present at work.

Neither of the employees who had this misunderstanding was called to give evidence. Technically an inference could be drawn against the respondent company for this but I am not minded to do it. They were probably thought to be difficult to track down. Both sides have conducted the case on the basis that unlimited funds should not be put into running it.

What we know is that Ms Bamba did not go to Japan, even for a holiday. She did not return to Japan permanently, even after the final separation from her husband which came in April 1996. Ms Bamba probably maintained for a long time in the back of her mind the possibility of returning to Japan. This would be natural. The fact that she did not return to Japan at all but continued to seek employment in Sydney is objective evidence, although admittedly not very strong, to point to a conclusion that if her employment had not been terminated over the jewellery incident, it likely would have continued, because I think she had no immediate plan to return to Japan.

That there was some capacity for misunderstanding is evident from the fact that it was thought (a) that she and her brother were going to Japan when the police visited the airport, and this was wrong, and (b) that her brother was going to accompany her on travels around Australia when in fact he returned to Japan and she did not travel at the relevant time in Australia. There was some effort to explore the ups and downs of Ms Bamba's relationship with her husband at the crucial times in 1995 but, not surprisingly I suppose, in the end this really did not take the matter further.

There being some evidence to support Ms Bamba's claim that she never had any firm intention to leave Australia and therefore never said so, one looks to see what, if anything, is a factor other than Mr Grimes' and/or Ms Borah's assertions which would point to a different conclusion. I think one searches in vain. I therefore think that Ms Bamba's employment would have continued for some indefinite period with the respondent company.

The work was casual although it was fairly frequent. On Ms Bamba's evidence it involved working six days a week, often working early in the morning or on a different shift late at night. That sort of work over a protracted period is not to everyone's taste. A few months later, after the parties went their separate ways, Ms Bamba obtained some work in a different field at a reduced wage. Thus there is some loss. The judicial registrar arrived at a result of $6,960. I do not feel that one can say that anywhere between, say, $6,000 and $7,500 is wrong. Looking at the matter in the broad, the nominated figure seems to me to be reasonable compensation and I think I should select that as the amount of compensation. In the result, therefore, I confirm the ultimate approach of the judicial registrar.

The orders that I would make are these: Within seven days the respondent company is to pay into court for payment out to Ms Bamba the sum of $7,980.58, provided that if within that period there is filed and served proof of payment to the taxation authorities of the amount of tax thereon bona fide thought to be payable, then the said amount may, to the extent of that payment to the Taxation Commissioner, be reduced. That amount includes $1022.58 for breach of 170DB of the Workplace Relations Act 1996 (Cth), relating to notice. The intent of my order is that, in the ordinary course, the company would deduct from the $7,980.58 the tax payable, prove that, and then pay the balance into court for payment out.

I certify that this and that preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Madgwick.

Associate:

Date:

Appearances

Counsel for the Applicant: N Rudland

Solicitor for the Applicant: Geoffrey Edwards & Co

Counsel for the Respondent: J Hyde

Solicitors for the Respondent: Tomsons Playford

Date of Hearing: 4 September 1997