Green & Ambrow Pty Limited [2006] NSWIRComm 1019 (30 March 2006)

Last Updated: 30 March 2006

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Green & Ambrow Pty Limited [2006] NSWIRComm 1019

FILE NUMBER(S): 3897

HEARING DATE(S): 22/11/2005

DECISION DATE: 10/02/2006

PARTIES:

APPLICANT

Tara Green

RESPONDENT

Ambrow Pty Limited

JUDGMENT OF: Stanton C

LEGAL REPRESENTATIVES

APPLICANT

Mr J Wormington of Counsel

RESPONDENT

Mr B Evans, Industrial Agent

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Stanton C

10 February 2006

Matter No IRC 3897 of 2005

Tara Green and Ambrow Pty Limited.

Application by Tara Green re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

DECISION

[2006] NSWIRComm 1019

1 This is an application pursuant to s 84 of the Industrial Relations Act 1996 (the Act) made by Miss Tara Green (the applicant) who was dismissed by Ambrow Pty Limited (the respondent) on 13 July 2005 on the grounds of alleged redundancy.

2 The respondent operates a number of toy shops within the Newcastle and Lower Hunter Regions.

3 At the time of her dismissal, the Applicant worked as a casual shop assistant at the respondent's Toy Kingdom store located at Maitland.

4 The application was subject to conciliation proceedings on 17 August 2005. Mr J Wormington of counsel appeared for the Applicant. Mr B Evans, Industrial Agent, appeared for the respondent. As the matter could not be resolved by agreement between the parties, directions for filing and serving of statements of evidence were issued.

5 The matter was subject to arbitration proceedings on 22 October 2005. A further conciliation conference initiated by the Commission that day failed to settle the matter.

6 Mr Wormington brought evidence from the Applicant. Mr Evans brought evidence from Mr Michael Simmons, Company Manager, and Ms Vickie Gillespie, Shop Assistant.

EVIDENCE

For the applicant

Ms Tara Green

7 In the affidavit that formed the basis of her evidence in this matter, the applicant outlined the nature and history of her employment with the respondent. She commenced working two days per week at the Maitland Toy Kingdom store on 6 March 2004 selling toys to both retail and wholesale customers. Shortly thereafter, she was asked to work in the respondent's Bennetts Green warehouse accounts department where she carried out a number of secretarial duties.

8 Between May and December 2004 the applicant worked at the respondent's Cessnock World of Toys store two days per week and at the Maitland World of Toys store for four days per week. On 23 December 2004, the Cessnock store closed and she subsequently worked three and a half days per week at the Maitland Toy Kingdom store. Another employee, Ms Sue Cunningham, worked the other two days of the week at the Maitland store. On 19 February 2005, Ms Cunningham resigned and was replaced by Ms Gillespie.

9 On 4 May 2005, the applicant arrived at work and noticed that there were signs in the window of the store stating "40% off Closing Down Sale." At approximately 9.30am that day, Ms Gillespie phoned the Applicant and said

words to the effect:

Michael Simmons told me they are closing the store down and marking 40% off all stock. He asked me to ask you to take the signs down and paint it on the windows.

The applicant denied that Ms Gillespie had told her that both Ms Gillespie and herself were now employed on a week to week basis pending actual store closure.

10 The applicant maintained that at no time during the closing down sale did her immediate manager, Mr Simmons or the company owner, Mr Alan Smith inform her that the store was actually closing down, nor was she told that she was going to be dismissed or made redundant. The applicant denied being informed by Mr Simmons or Ms Gillespie that she and Ms Gillespie were working on a temporary basis following the respondent's decision to close the Maitland store.

11 It was the applicant's evidence that when she was employed by the respondent in March 2004, she was not told her position was short term nor temporary.

12 Following the announcement of the closing down sale, the applicant thought she would be transferred to the warehouse following the closure of the Maitland store and accordingly, she did not bother to question the respondent about her future employment nor, when the store may close.

13 The applicant denied telling Ms Gillespie that she would not work at the Bennetts Green warehouse or that she had applied for a position at the new Cessnock Big W store. It was the applicant's evidence that while she had told Ms Gillespie that she would have to think about going back to the warehouse to work, she "would more than likely do it." The applicant confirmed that she had not applied for a position at Big W either prior or subsequent to her dismissal.

14 The applicant stated that when she first worked at the warehouse, she relied on her father, who worked in the Bennetts Green area, for transport. In cross examination, she stated she had recently obtained her own transport.

15 It was the applicant's evidence that her co-worker, Ms Gillespie, was the only person who informed her that the store was closing down.

16 On 12 July 2005, the applicant received a telephone call from Ms Gillespie who said to her words to the effect:

Michael Simmons asked me to tell you that you are finishing up and don't need to come to work on Wednesday 13 July 2005.

The Applicant asked Ms Gillespie Why?

Ms Gillespie responded by stating words to the effect:

I don't know.

17 The applicant subsequently phoned the Bennetts Green warehouse and asked the secretary to put her call through to Mr Simmons. The secretary subsequently asked the applicant why she wished to speak to Mr Simmons. The applicant replied Ms Gillespie had phoned and informed her that Mr Simmons had said that she was finishing up. The secretary told the applicant Mr Simmons was downstairs in the warehouse and she would ask him to return her call.

18 As Mr Simmons had not returned her call by the afternoon, the applicant phoned the warehouse once more. The secretary informed her that Mr Simmons had confirmed her termination. Accordingly, the secretary uttered words to the effect:

That's right - you're finished and not to worry about going to work on Wednesday, 13 July 2005.

19 It was the Applicant's evidence that a few days after her dismissal, Ms Anna Little was employed by the respondent to fill the applicant's shifts at the Maitland store.

20 The applicant stated she was dismissed without notice or reason. The applicant denies she was dismissed for reason of alleged redundancy in July 2005. The Maitland store was still operating and had continued to operate for more than four months following her dismissal.

21 In cross examination, the applicant denied that Mr Simmons gave her one week's notice of her dismissal. The applicant also denied Mr Smith told her the store was closing down.

22 It was the applicant's evidence that her employment with the respondent had been continuous prior to her dismissal and she was unaware she had been employed by a company known as Caldez Pty Ltd between June and December 2004 following the closure of the Cessnock store. Further, when working at both the Maitland and Cessnock stores, she claimed she only received a single weekly pay and a single pay slip each week from the respondent.

23 It was the applicant's evidence that she had been unsuccessful in obtaining other employment since her dismissal. The applicant stated she had not applied for Centrelink benefits because " I don't like receiving money that I don't work for."

For the respondent

Mr Michael Simmons

24 Attached to Mr Simmons' affidavit were a number of annexures:

Annexure A - correspondence from RJ Wood trading as Ambrow Pty Ltd. David Haggerty, First National Real Estate giving notice that the respondent will vacate the Maitland store on 1 July 2005.

Annexure B - Diary extract 6 July 2005.

Annexure C - Copy of PAYG Group Certificate Payment Summary for the Applicant on behalf of Caldez Pty Limited for period 1 July to 31 December 2004; copy of PAYG Group Certificate Payment Summary for the applicant on behalf of Ambrow Pty Ltd for the 6 March to 24 June 2004 and the financial year ended 30 June 2005; copy of Applicant's Employment Separation Certificate issued on 19 July 2005.

25 Mr Simmons deposed he commenced employment with the respondent in the role of manager on 14 December 2004. He held extensive experience in the industry having previously owned and managed a toy store in the Lower Hunter.

26 Mr Simmons stated he visited the Maitland store on 6 July 2005 and consistent with the diary entry set out in Annexure B, he informed the applicant she had one week's notice of termination.

27 It was Mr Simmons' evidence that he believed Mr Smith had advised Ms Gillespie and the applicant of the pending store closure.

28 It was Mr Simmons' evidence that he denied the applicant had phoned him at the Bennetts Green warehouse on 12 July 2005 and left a message for him to return her call. In cross examination, Mr Simmons stated he recalled the following:

I think I got a verbal (message) from Carol, who sang out, because I was working in the warehouse, that there was, "A Tara Green on the phone who wants to know if she's required." I then turned to Carol and said, "No sorry, I gave her a week's notice, I don't have to talk to her, she's no longer required."

29 In cross examination, Mr Simmons stated he was unable to confirm whether Mr Smith had spoken to the applicant personally to advise her that the store would be closing or, that her employment would be on a "week to week" basis. It was Mr Simmons' evidence that Ms Gillespie had informed him that Mr Smith had phoned her to advise the store would be closing down. He stated he had assumed Ms Gillespie had informed the applicant.

30 Mr Simmons confirmed the Maitland store had continued to operate subsequent to the applicant's dismissal and was now expected to cease trading on 24 December 2005.

31 Mr Simmons confirmed Ms Little was employed about a week after the applicant "left" and was now working at the respondent's Cardiff store.

32 Mr Simmons stated the applicant was not offered the Cardiff position on the grounds that Ms Gillespie told him the applicant was not prepared to travel to Newcastle.

33 Mr Simmons conceded Ms Gillespie had been working 45 hours per week since the applicant's dismissal. He agreed that the respondent could have left the applicant in employment for the 16 or 17 weeks since her dismissal.

34 Mr Simmons stated Caldez Pty Ltd and Ambrow Pty Ltd were separate legal entities. He could not explain why the applicant received a single pay and payslip each week during the period she had worked for both companies.

Ms Vicki Gillespie

35 Ms Gillespie stated Mr Smith had advised her that the store was closing down and would operate on a weekly basis with no set close down date. He instructed her to paint closing down sale signs on the front windows that the applicant subsequently painted.

36 In cross examination, Ms Gillespie stated she had previously worked as a part-time shop assistant for Mr Simmons over the Christmas period in a separate retail toy business for some ten years.

37 It was also Ms Gillespie's evidence that prior to the applicant's dismissal, she had only worked two days per week and shortly after the applicant's dismissal she commenced working, and currently worked, five and a half days per week.

38 Ms Gillespie admitted she had read and was familiar with the applicant's affidavit prior to finalising her own affidavit on 21 September 2005. She also admitted reading the applicant's affidavit with Mr Evans immediately prior to the hearing.

39 Ms Gillespie denied the applicant's evidence that she had phoned the applicant on 12 July 2005 and said words to the effect:

Michael Simmons told me to tell you not to come into work on 13 July.

Rather, Ms Gillespie stated she phoned the applicant on 12 July 2005 at the request of Mr Simmons seeking the return of a set of keys.

40 Ms Gillespie confirmed that as far as she was concerned, there was no consultation between the respondent and herself concerning the applicant's dismissal or whether she herself would like to work additional hours:

I was asked if I wanted to work the next week and that just continued on from there.

41 In re-examination, Ms Gillespie stated that when she accepted the additional hours following the applicant's dismissal, she anticipated the store would be closing shortly thereafter.

42 Ms Gillespie contradicted her evidence given in cross examination that she had seen the applicant's affidavit prior to preparing her own evidence. Rather, she stated in re-examination that knowledge concerning aspects of the applicant's affidavit arose out of a conversation she had previously had with Mr Evans.

SUBMISSIONS

Applicant

43 Mr Wormington submitted the applicant received a single pay and pay slip each week whilst working at both the Cessnock and Maitland stores and, accordingly, it was not possible to distinguish service between the respondent and Caldez Pty Limited.

44 The respondent's evidence according to Mr Wormington concedes that Mr Smith did not tell the applicant her employment was "week to week" or, that her position may become redundant. He contended Mr Simmons was unsure what had occurred and Ms Gillespie had amended her affidavit immediately prior to giving evidence to depose that she, and not the applicant and herself, was advised by Mr Smith that the shop was closing down.

45 Mr Wormington disputed the respondent had given the applicant notice of dismissal. He submitted that in the event Mr Smith or Mr Simmons had given the applicant a week's notice, why would she have sought to contact Mr Simmons at the Bennetts Green warehouse to establish the reason why he did not wish her to come to work on 13 July 2005.

46 It was Mr Wormington's submission that the evidence of Mr Simmons was unreliable. At paragraph 8 of his affidavit, Mr Simmons denies the telephone call alleged to have been made on 12 July 2005. In cross-examination, Mr Simmons conceded a telephone call was made and the secretary had given a response consistent with the applicant's version of events that day.

47 Mr Wormington submitted the applicant's immediate response to contact Mr Simmons to establish her employment status was entirely consistent with her evidence that Ms Gillespie had phoned the applicant on 12 July 2005 to pass on the message from Mr Simmons that she was not required to work the next day.

48 Mr Wormington submitted there was no valid reason for termination. There was no redundancy. Ms Gillespie has continued to work the applicant's pre-dismissal hours of work for some 16 weeks.

49 Mr Wormington submitted there was no consultation. Further, the respondent had an opportunity to offer the applicant a full time position at Cardiff that became available around the time of her dismissal. The applicant was not offered the position at the Cardiff store on the notion that Mr Simmons had heard via Ms Gillespie that the applicant would not travel to Cardiff, when it was Ms Gillespie's evidence the applicant had only intimated she would not travel to Bennetts Green.

50 Mr Wormington submitted the applicant neither sought re-instatement nor re-employment with the respondent. The Commission should take into consideration that had the applicant not been dismissed, she would have been afforded an opportunity to work a further 16 or 17 weeks with the respondent.

Respondent

51 Mr Evans submitted the applicant was aware the store was closing down for some considerable time. He quite properly conceded there was conflicting evidence concerning the employing entity over the period of the applicant's employment with the respondent and Caldez Pty Ltd:

... this is a classic case where nobody bothered to take the time to sit down and write out the fact that someone is employed at a particular business, terminates, is re-employed again and so, there is no documentation.

However, for her part, Mr Evans submitted the applicant had failed to submit payroll evidence to support the contention she was only paid by one company when in fact for a time she had worked for two companies simultaneously.

52 When Ms Gillespie was asked by the respondent to work additional hours, Mr Evans submitted her expectation was that the store would be closing down shortly thereafter. The fact that the store had continued to trade was irrelevant and the store should have closed and, would have closed, had the real estate agent found a new tenant for the store.

53 Mr Evans submitted the applicant had informed Ms Gillespie that she would not travel to Bennetts Green and on that advice, Mr Simmons took the view the applicant would not travel from her home in Cessnock to the Cardiff store. Accordingly, the applicant was not considered a candidate for the Cardiff position.

54 Despite the store continuing to trade, it was Mr Evans' submission that there was no onus on the respondent to re-engage or re-employ the applicant at any subsequent time. It was simply an unfortunate circumstance that the store continued to trade and liquidate stock.

55 Mr Evans submitted there was no mitigation and the applicant had failed to provide evidence of her search for employment. The respondent had met its obligations as an employer having previously given the applicant notice in excess of the applicable award obligation.

Consideration

56 Section 88 of Industrial Relations Act 1996 ("the Act") sets out the issues to be determined in an application pursuant to s 84:

88 Matters to be considered in determining a claim

In determining the applicant’s claim, the Commission may, if appropriate take into account:

(a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and

(b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and

(c) whether a warning of unsatisfactory performance was given before the dismissal, and

(d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and

(e) whether or not the applicant requested reinstatement or re-employment with the employer, and

(f) such other matters as the Commission considers relevant.

57 It is regrettable that neither Mr Smith nor the Bennetts Green warehouse secretary were called to give evidence on the respondent's behalf. There is a degree of uncertainty with the evidence of both Mr Simmons and Ms Gillespie. On balance, and in the absence of additional evidence from the respondent, I prefer the applicant's evidence overall.

58 In consideration of the matters identified and having considered the evidence and submissions of the parties, I have formed the view that Ms Green's dismissal was harsh, unreasonable and unjust and, that a case has been established warranting an order for compensation. There was no redundancy.

59 When the factual matrix surrounding the applicant's dismissal is considered, the breaches of procedural fairness, the manner of her dismissal, particularly the respondent’s failure to consult with her personally, the absence of any selection criteria whatsoever and the lack of adequate notice are sufficient in themselves to require a finding the dismissal was harsh and procedurally unfair.

60 This finding may have been averted had the respondent's management given reasonable notice to the applicant, canvassed possible alternatives that may have either mitigated the impact of dismissal or avoided dismissal entirely, such as relocation to the Cardiff store or Bennett's Green warehouse.

61 Neither re-instatement nor re-employment are practical. Having regard to all of the circumstances of the matter and the earnings of the applicant in the six months prior to dismissal, I am satisfied that it is appropriate to order the respondent to pay to Ms Green an amount of $4000 as compensation, payable within 21 days.

62 Matter No IRC 3897 of 2005 is so concluded.

oo0oo

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Stanton C

10 February 2006

Matter No IRC 3897 of 2005

Tara Green and Ambrow Pty Limited.

Application by Tara Green re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

ORDERS

Pursuant to s89(5) of the Industrial Relations Act 1996 Ambrow Pty Limited is ordered to pay the amount of $4000 ( four thousand dollars) to Ms Tara Green within 21 days of the date of this decision.

I so order.

J D Stanton

Commissioner

LAST UPDATED: 10/02/2006