Mithieux and Alexa Mia Pty Ltd t/as Coogee Bay Newsagency [2004] NSWIRComm 1069 (20 August 2004)

Last Updated: 10 May 2005

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Industrial Relations Act 1996

THOMAS ROGER MITHIEUX

(applicant)

-V-

ALEXA MIA PTY LTD t/as COOGEE BAY NEWSAGENCY

(Respondent)

20 AUGUST 2004

Commissioner Macdonald

Matter No. IRC 03/6844

Application by Thomas Roger Mithieux re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

D E C I S I O N

1. This is an application by Thomas Roger Mithieux ("the Applicant") for unfair dismissal against Alexia Mia Pty Ltd t/as Coogee Bay Newsagency ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act").

2. The matter was set down for Conciliation and Directions on 15 December 2003.

The Applicant appeared unrepresented.

The Respondent was represented by Mr D English, solicitor.

The matter could not be settled and a Hearing program was put in place.

BACKGROUND

3. The Applicant is a law student who worked as a shop assistant in the Respondent's newsagency business.

He worked on a casual basis - two days per week from January 2000 until June 2003. Thereafter, to November 2003, he worked each Friday only. He said he worked on a systematic and regular basis.

4. On 31 October 2003, he worked but found his till to be short by $187 when attempting to balance his till. He advised Mr Robert Zarauz, Company Director, of the Respondent of the shortfall.

5. The Applicant worked his shift on Friday, 7 November, 2003. When he picked up his pay, he noticed it was $187 short. This was the first he knew that the previous $187 shortfall would be deducted from his pay.

He went home and there looked up the NSW Department of Industrial Relations website.

He returned to the newsagency on the same day around 5.30 pm. He spoke with Mr Zarauz about the deduction, and the latter confirmed the deduction was because of the previous shortfall. A Ms Ferraris, Director of the Respondent,

joined in the conversation. The Applicant said the $187 deduction was illegal. Mr Zarauz said he would speak to his solicitor. Allegedly Mr Zarauz said that if the Applicant was entitled to the $187, he would get it after he tendered his resignation.

6. On Thursday, 13 November 2003, the Applicant telephoned Mr Zarauz who said the advice from the solicitor was that the Applicant was not entitled to the $187.

The Applicant said he would not resign his employment and that he would be reporting for work on Friday, 21 November 2003. (He already had an arrangement to be absent for work on Friday, 14 November, as study leave, in effect). The Applicant deposed that he was told there was no shift available for him on 21 November.

7. On 18 November, the Applicant sent two letters to the Respondent for payment of the $187; seeking advice as to whether work was available for him on Friday, 28 November; and seeking certain pay slips.

8. On Friday, 28 November he received the payslips but they did not show the $187 deduction.

9. On 5 December, he received a letter from Mr Zarauz, referring to the Applicant's letter of 18 November 2003.

Mr Zarauz's letter confirmed the $187 deduction and said that it was a condition of employment that shortfalls in cash are made up from an employee's pay. The Applicant deposed he had never agreed to such a condition and that the deduction was contrary to s 184 (sic., s 118) of the Act.

Mr Zarauz's letter offered reimbursement of the $187 but only on the basis that some other form of payment was offered in lieu by the Applicant - who said he did not understand this offer.

The letter also said that the Applicant had resigned his employment on 7 November. The Applicant denied this.

The letter further said that the Applicant had not worked on 14 November because of the resignation on 7 November. The Applicant denied this. He said he had not worked on 14 November as this was a day off, agreed to by Mr Zarauz. The day was taken off for study leave purposes, said the Applicant.

THE HEARING

10. The Applicant represented himself and called himself as a witness, through his assistant, Ms Mithieux.

The Respondent was represented by Mr D English, solicitor, who called the following witnesses:

•	Mr Robert Zarauz - Director

•	Ms Silvana Ferraris - Director

The above two directors are husband and wife.

FINAL SUBMISSIONS

For the Applicant

11. The Applicant gave the following final submission:

•	He had been dismissed, rather than resigned his employment as put by the Respondent. He referred to evidence in support of this claim.

•

In the alternate, he submitted he had been constructively dismissed. In that regard, he referred to a conversation between himself and Mr Zarauz where the latter allegedly said he would send a cheque for $187 when the Applicant resigned his employment. The Applicant agreed he responded, "Fine", to this offer but submitted it constituted a constructive dismissal.

•	The Applicant said his dismissal was harsh, unreasonable or unjust and arose because he sought to enforce his legal entitlement to the $187.

The Applicant denied there was a company policy on shortfalls which required an employee to make up such shortfalls. But even if there was, the Applicant had not consented to any such deduction from his pay.

•	He had been employed for three years and nine months.

He submitted that reinstatement was impracticable.

He sought compensation of $800 gross and gave as his gross weekly pay, the sum of $108.

For the Respondent

12. Mr English made the following points on behalf of the Respondent:

•	There was no dismissal. The Applicant resigned his employment.

•	The Applicant gave evidence about his knowledge of the shortfall policy, but this evidence was at odds with what he asserted in his unfair dismissal application.

•	Although there was an "identicality" with the witness statements of the two directors (the husband and wife), the Commission should accept their accounts of conversations with the Applicant - that is, that he had resigned.

•

There was no constructive dismissal. The Applicant had not put to the husband or wife for testing of his assertion, that he had been told to resign or else he would not get his $187. Further, it was submitted that the Applicant had resigned his position on 7 November and six days later, came back to the shop on 13 November to say he was not resigning.

CONSIDERATION

13. The Commission had before it conflicting claims as to whether there was a dismissal/constructive dismissal as asserted by the Applicant or a resignation as asserted by the Respondent.

In assessing these competing claims, the Commission firstly addresses the issue of the credibility of the Respondent's witnesses.

The Respondent's Credibility

14. The Respondent's case was put by the two directors, being husband and wife - Mr Zarauz and Ms Ferraris. Their witness statements are respectively, exhibits 3 and 4.

15. The Applicant raised and the Commission pursued an issue being the identical nature of the witness statements of the husband and wife. Specifically their witness statements are virtually word perfect - including the use of punctuation - for the critical conversation of 7 November. This conversation was between

the Applicant and the husband in one of the two back rooms of the shop. The wife was either in the other back room or present and says she overheard their conversation. She recounts their conversation, verbatim as to her husband's account - including use of punctuation.

The conversation is critical because it goes to whether the Applicant resigned his employment. The husband/wife conversation puts the Applicant as resigning his employment.

The husband's account of the conversation is at exhibit 3 - paragraph 22. His wife's account is at exhibit 4 - paragraph 4. Both of their accounts are in the style of "he said - I said", but the wife's account is "my husband said".

Both of their accounts have six lots of speeches in quotation (3 for the Applicant and 3 for the husband). The entire six lots of speeches, in quotation marks, are repeated word perfect in the wife's account of the conversation - as for her husband's account of the conversation.

Further, the husband's six lots of speeches in quotation marks, conclude with a full stop for the 2^nd, 4^th, 5^th and 6^th lot of quoted speeches - but no full stop appears for the 1^st and 3^rd lots. The wife's account has exactly the same full stop and no full stop format.

Again, the same punctuation format is followed by the wife when using the colon (:) and semi-colon (;) - in her reporting of the conversation - as for her husband's account of the conversation.

16. When questioned by the Commission, the husband (who gave evidence before the wife) said he and his wife had probably discussed the conversation (not the contents of the witness statements, he said), "30 or 40 times. We work together, we live together, you know" - (transcript, page 23).

The wife then took to the witness stand. She was questioned by her own solicitor on her witness statement. He asked if she had conferred with her husband in the preparation of these statements. She said, "Yes". Under cross-examination, she said she had given an independent account in her statement despite a remarkable similarity.

She was then questioned by the Commission as to the verbatim conversation and use of punctuation. She said she could not explain this verbatim nature of her account of the Applicant/husband conversation. She denied she had recorded his witness statement verbatim. She did not know why her use of punctuation marks exactly mirrored that of her husband's statement.

The Commission then asked her about her earlier response to her solicitor, that she had conferred with her husband in the preparation of these statements. By this, she said, she meant that they had had discussions about that 7 November conversation. When she was given a line of questioning leading up to how many discussions she had had with her husband about the case (the events before, on or after 7 November), she responded "Briefly" - (transcript, page 29).

Her husband by contrast said they had had 30 to 40 discussions on the conversation of 7 November, because they are after all, husband and wife, and live together.

The Commission finds on the issue of credibility of the Respondent's case (arising out of an assessment of the critical conversation above), that where there is a conflict between the evidence of the Applicant and the Respondent (the husband and wife), then the Commission prefers the account of the Applicant.

Dismissal or Resignation?

17. The Applicant claimed he was dismissed or in the alternate - constructively dismissed. The Respondent claimed that the Applicant resigned his employment.

The conflicting claims arise out of a conversation between Mr Zarauz (the husband) and the Applicant. The conversation took place in a backroom of the shop - around 5.30 pm on 7 November. The conversation concerned the deduction of the $187 shortfall out of the till of 31 October.

18. The Applicant's account is that Mr Zarauz said that he would give the Applicant the $187 as long as Mr Zarauz never had to see the Applicant's face again. The Applicant responded: "Fine". The wife then stepped into the conversation and advised her husband not to pay the money, as the Applicant had not been paying attention on the day in question and cited two un-opened cigarette packets found in a bin located in the shop that day, as an example.

19. Under cross-examination, the Applicant said that his response of, "Fine" meant he understood he was being fired.

Again under cross-examination, Mr English, solicitor, for the Respondent, questioned this account of the conversation, along the lines that there was no cause to explain the Respondent (the husband) from all of a sudden saying to the Applicant that the latter could have his $187 but the Respondent did not want to see the face of the Applicant again. Mr English highlighted the lack of a cause by having the Applicant agree there had been no dispute in the past between the Respondent and the Applicant.

But there was a preamble that could have caused the Respondent to act the way he did, as deposed by the Applicant. This preamble was that after discovering there was a large sum of money missing from his pay packet, the Applicant went home and looked up the Department of Industrial Relations website. He returned to the shop to have the conversation now under consideration. The Applicant deposed that he had said to the Respondent that the law did not allow employers to deduct pay in order to make up shortfalls.

This statement by the Applicant came before the Applicant's version that had the Respondent offer the payment of $187 in return for not seeing the face of the Applicant again.

It is possible that this preamble is the provocation for the Respondent to react the way the Applicant contends.

The Commission so finds.

20. The Commission finds that the events of 7 November and the subsequent events lead to the conclusion that the Respondent terminated the services of the Applicant.

On 7 November, the Respondent told the Applicant he would be paid his $187 provided he resigned his employment. Subsequently, given that the Applicant had not resigned his employment, the Respondent did not offer any further regular rostered work to the Applicant. This brought the contract of employment to an end at the initiative of the Respondent.

CONCLUSION

21. The Commission has formed the view that the Applicant was dismissed.

The termination of his services was unjust and unreasonable: Outboard World Pty Ltd (t/as Budget Waste Control Sydney) v Muir (1993) 51 IR 167.

In assessing the quantum of compensation that is appropriate, the Commission has had regard to the Applicant's length of employment and the events surrounding his termination of employment.

His gross pay was $108 per week. The Applicant sought compensation of $800 gross.

O R D E R S

22. Pursuant to ss 89(5) and (6) of the Act, the Commission orders that:

(a) The Respondent (Alexia Mia Pty Ltd t/as Coogee Bay Newsagency), shall pay to the Applicant an amount of $800. This amount is a gross figure and appropriate taxation treatment is a matter for the parties.

(b) The amount ordered in (a) above, shall be paid within 28 days of the taking of effect of this Order.

(c) This Order shall take effect on and from 20 August 2004.

A Macdonald

Commissioner