Shiree Ann Hughes v Maria Christadoulou t-as Bayview Seafoods [2009] NSWIRComm 1051 (16 September 2009)

Last Updated: 18 September 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Shiree Ann Hughes v Maria Christadoulou t-as Bayview Seafoods [2009] NSWIRComm 1051



FILE NUMBER(S):
557

HEARING DATE(S):
11/08/09

DATE OF JUDGMENT:
16 September 2009

PARTIES:
APPLICANT
Shiree Ann Hughes

RESPONDENT
Maria Christadoulou t/as Bayview Seafoods

CORAM:
Macdonald C


CATCHWORDS: Unfair dismissal - Applicant employed as shop assistant - casual employee of about six months service - Applicant and two other employees worked according to a roster - incident at work between employer and Applicant re Applicant's rostered start time - another employee present during incident - Applicant dismissed - conciliation unsuccessful - Hearing in Batemans Bay Court House - Applicant self represented - Respondent represented by solicitor - conflicting accounts by the three witnesses as to incident - Commission prefers version of events/conversations given by Applicant - unfair dismissal claim by Applicant upheld - Commission made Orders for compensation

LEGAL REPRESENTATIVES

APPLICANT
Shiree Ann Hughes
Self Represented
RESPONDENT
Mr Elliott Wain
Solicitor

CASES CITED:
D and R Commercial Pty Ltd v Flood (2002) 113 IR 344
Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167

LEGISLATION CITED:
Industrial Relations Act 1996


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MACDONALD C

16 September, 2009

Matter No IRC 557 of 2009

Shiree Ann Hughes and Maria Christadoulou t/as Bayview Seafoods

Application by Shiree Ann Hughes re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2009] NSWIRComm 1051

1 This is an application by Shiree Ann Hughes ("the Applicant") for unfair dismissal against Maria Christadoulou t/as Bayview Seafoods ("the Respondent"), pursuant to section 84 of the Industrial Relations Act 1996 ("the Act").

2 The unfair dismissal application was filed on 20 April, 2009 in the New South Wales Industrial Registry. The Employers Reply was filed on 28 April, 2009.

3 The matter was set down for conciliation on 30 April in Sydney via teleconference facility for both parties. Conciliation was unsuccessful and the matter was programmed for a Hearing.

4 Further conciliation was initiated by the Commission after reviewing the filed material for the Hearing. At that time, only two witnesses had filed statements: the Applicant and the Respondent. That Conciliation took place on 5 August in Wollongong via teleconference facility for both parties.

5 Over the next couple of days, it became clear that the matter was not capable of settlement. A further witness statement was then put on: Maryanne Gill, who was called by the Respondent.

6 The Hearing took place in Batemans Bay Court House on 11 August, 2009.

7 At the Hearing, the Applicant was self-represented and only called herself as a witness.

8 The Respondent was represented by a solicitor, Mr Elliott Wain, who called the following witnesses:

Maria Christadoulou - the Respondent

Maryanne Gill - shop assistant

BACKGROUND

9 The Applicant was engaged as a casual employee for some six months with the Respondent, starting around September, 2008. She was employed as a shop assistant.

10 At the time of her dismissal, there were two other employees engaged as shop assistants and all three were rostered to work according to a hand-written roster, put up in the back of the shop. One of those two other employees is Maryanne Gill and she gave evidence in the proceedings.

11 The Respondent in the proceedings is Maria Christadoulou who employed the Applicant. Her place of business is in the general shopping area of Batemans Bay.

12 On Monday, 23 March, 2009, the Applicant attended for work. She said she was rostered to start work at 3.30pm and arrived about ten minutes before that time.

13 The other employee, Maryanne Gill, was already at work when the Applicant arrived.

14 A short time later, Maria Christadoulou asked the Applicant why she was late for work. The Applicant denied she was late for work. Maria Christadoulou said that because the Applicant was late for work, she made telephone contact with Maryanne Gill who then came in on short notice to fill the Applicant's position.

15 There were differing versions as to what was said and what happened after this initial conversation.

16 As the incident unfolded in the shop, Maria Christadoulou said to the Applicant that she could come back on Wednesday (two days later) and collect her pay as she no longer worked for the Respondent.

17 Belatedly, Maryanne Gill was called as a witness, by the Respondent. Her witness statement gave more information as to the events/conversations of 23 March, than that given by the Applicant and the Respondent.

FINAL SUBMISSIONS

For the Employee

18 Shiree Hughes represented herself in the proceedings and addressed the Commission on the events of 23 March, 2009:

(a) She said that the hand-written roster attached to her witness statement was the correct roster for that time. It showed that she was to start work at 3.30pm and not earlier that day as claimed by the Respondent.

(b) She said that roster also showed that Maryanne Gill was in fact rostered to work that day as well.

(c) There were conflicting accounts given by the witnesses as to what had happened that day and the Applicant's account was truthful. There were inconsistencies, she said, between the accounts of Maria Christadoulou and Maryanne Gill.

(d) In the lead up to her dismissal, she had bumped and not intentionally swiped the stacked fish and chip boxes and which fell on the ground and could not be used for customer sales.

(e) She had not yelled or sworn at the Respondent, during the incident.

(f) The dismissal was unfair and she sought compensation of ten weeks at $410 nett per week.

For the Respondent

19 Mr Elliott Wain, solicitor for the Respondent, put the following in final submissions:

(a) The evidence of the Respondent and Maryanne Gill was that the Applicant was to start work at 3.00 pm and not 3.30 pm that day as claimed by the Applicant.

(b) The hand-written roster attached to the Applicant's witness statement, could not be the correct roster, given the evidence of Maryanne Gill.

(c) At some point during the incident, the Applicant barged or bumped Maria Christadoulou, according to Ms Gill and Ms Christadoulou.

(d) The Applicant deliberately knocked down the stacked fish and chip boxes, according to Ms Gill and Ms Christadoulou. Those boxes had to be thrown out.

(e) The Applicant had been dismissed because of her conduct - making physical contact with Maria Christadoulou, knocking down the boxes, and swearing at and abusing Maria Christadoulou.

(f) Maryanne Gill is to some extent, an independent person (albeit still employed by the Respondent) and her evidence is to be preferred.

(g) The Applicant commenced employment around mid-September and not mid August, 2008 and documentation from unrelated court proceedings involving the Respondent only supported that view. This evidence as to the correct start date of the Applicant also went to the issue of the credibility of the Applicant.

(h) The Applicant carried the burden of proof and she had not been unfairly dismissed. In the alternate, if the Commission found she had been unfairly dismissed, then any compensation awarded should be a minimum amount (perhaps one or two weeks). Further, there was no evidence from the Applicant that she had attempted to mitigate her circumstances.

(i) The evidence of Ms Gill and Ms Christadoulou was to be preferred against the Applicant's.

Employee in Reply

20 Ms Hughes said she should not be treated as a liar if she was wrong about the start date of her employment.

The accounts of Ms Gill and Ms Christadoulou as to what happened on 23 March are different, she said, and the dismissal was unfair.

CONSIDERATION

The Applicant's Remedy

21 The Applicant submitted that she had been unfairly dismissed and sought compensation only - ten (10) weeks pay.

The Preferred Evidence

22 There were conflicting accounts deposed by the three witnesses as to the events of that day. That conflict is most apparent upon a reading of the witness statement of Ms Gill. This statement was put on at the last moment.

23 Ms Gill works in the shop where the Applicant formerly worked and was present at the time of the incident leading to the Applicant's dismissal. Ms Gill was called as a witness by the Respondent. Her witness statement gave an account of the incident and that account went beyond that given by the Respondent (Ms Maria Christadoulou). So much so, that the Commission asked Ms Christadoulou as to why her witness statement did not record the extra events/conversations that Ms Gill deposed had taken place.

24 Ms Christadoulou's witness statement relevantly refers to the Applicant's alleged late arrival for work and their conversation about the correct starting time for the Applicant's shift on Monday 23 March. (Ex 3 - paras 12 to 14) The Applicant allegedly barged past Ms Christadoulou, making physical contact with the latter's shoulder; and then the Applicant proceeded to knock down a stack of small fish and chip boxes as she was leaving the shop. (para 15) Ms Christadoulou told the Applicant to come back on Wednesday to collect her pay as she was no longer working there. (para 16) The Applicant then left. (para 17) The Applicant returned on Wednesday to collect her wages. (para 18)

25 The late put on witness statement of Ms Gill relevantly deposed of the following additional information to that of Ms Christadoulou:

(a) After the Applicant swiped at the fish and chip boxes, Ms Gill deposed the Applicant said: "This is fucked". (Ex 5, para 11)

(b) There were customers in the shop waiting for food they had ordered. (para 12)

(c) The Applicant then yelled at Maria Christadoulou: "Your fucked in the head Maria, you and this business, your husband's going to find out about you sleeping with all the guys in town". (para 13) (After Ms Christadoulou told the Applicant to come back on Wednesday to collect her pay, Ms Gill deposed she also told the Applicant to leave the shop).

(d) Ms Gill then deposed that the Applicant returned to the shop five minutes later with her husband who spoke very briefly to Ms Christadoulou and said that they were going to bring an unfair dismissal and make her and Billy pay for this. (para 18)

(e) Ms Gill deposed that Ms Christadoulou was shaking - appeared very upset - and she gave her a cigarette. (para 21)

(f) Ms Gill said they were sitting outside of the shop front about half an hour later, when the Applicant hopped out of a car and yelled at Maria: "You are a dumb slut, I think you need to get your head checked cause it is fucked". Ms Gill said she herself responded: "Fuck off..... can't you see she (Ms Christadoulou) is in shock". The Applicant allegedly said to Ms Gill: "That dumb bitch deserves everything she gets". Ms Gill said she herself replied: "I think you should just fucking go". (para 22)

(g) During this conversation, Ms Gill said that Ms Christadoulou did not say a word. (para 23)

(h) Ms Gill deposed that the Applicant's partner came back and said to Ms Christadoulou: "Shiree (the Applicant) said that you threatened to kill our dog". (para 25)

(i) Ms Gill deposed she got in between the partner and Ms Christadoulou and said: "enough is enough, I think you should just fuck off and leave Maria (Ms Christadoulou) alone". (para 26)

26 As already stated, none of the foregoing events/conversations, as deposed by Ms Gill, appears in the witness statement of Ms Christadoulou.

27 The Applicant was cross-examined on the substance of the foregoing events/conversations. The Applicant denied Ms Gill's substantive allegations. The Applicant agreed that she (and not her partner) had told the Respondent she would be pursuing an unfair dismissal claim - as she left the shop upon being told to come back Wednesday to pick up her pay. She had hopped out of a car in the afternoon and walked past Ms Christadoulou, who allegedly said to the Applicant: "Watch your back, because my husband will bait your dog". The Applicant told her partner of this conversation. The partner then went to the shop.

28 The cross-examination of the Applicant on the additional events/conversations raised in Ms Gill's witness statement, showed that she disagreed with virtually everything raised by Ms Gill. This meant that these additional events/conversations were matters that not only did not appear in the witness statement of the Applicant, but as well, Ms Christadoulou.

29 This discrepancy caused the Commission to ask Ms Christadoulou about why Ms Gill's witness statement contained more information about what happened on that day (23 March), than Ms Christadoulou's own witness statement. The Commission then cited as an example the allegation by Ms Gill that the Applicant had said: "Your fucked in the head Maria, you and this business, your husband's going to find out about you sleeping with all the guys in town". Ms Christadoulou responded that if the Applicant said that to her, then she had not heard it said. (The allegation, she said, was also untrue). As well, if the Applicant said that statement on the way out of the shop, then she would not have heard it "because I was in shock". (Tr 32, line 10 to 45)

30 When Ms Christadoulou took to the witness box, she was asked questions in examination in-chief by her legal representative. She recounted the content of her witness statement and gave additional information. She added that the Applicant "started yelling and going off and saying all sorts of things and I just stood there in shock.....I was in shock....I just said to her, "Shiree (the Applicant) come back and pick up your wages on Wednesday"" (Tr 20, line 30 to Tr 21, line 4)

31 Ms Christadoulou was asked by her legal representative, if the Applicant had returned later that day. Ms Christadoulou said she was sitting outside the shop and still "in shock". She saw the Applicant sitting outside in a car with Lynette (a former employee) and the Applicant "could have gotten out and walked past me, I wouldn't - wouldn't have known. I was in shock..." (Tr 22, line 14 to 26)

32 The response of being "in shock" to explain the discrepancy between her witness statement and that of Ms Gill, as to events/conversations recorded by Ms Gill, is a response that applied for those events/conversations occurring in her shop and outside the shop front. The time duration for these events/conversations, as deposed by Ms Gill, is about thirty-five minutes (see paras 18 and 22 of Ms Gill's witness statement). Thus, Ms Christadoulou was in shock for some thirty-five minutes and was unaware of the following alleged character comments from the Applicant to Ms Christadoulou:

· "Your fucked in the head Maria, you and this business, your husband's going to find out about you sleeping with all the guys in town".

· "You are a dumb slut, I think you need to get your head checked cause it is fucked".

· "That dumb bitch deserves everything she gets".

33 The Commission now turns to a consideration of some inconsistencies in the evidence given on the day of the Hearing. These inconsistencies were brought to the attention of the Commission through cross-examination carried out by the Applicant.

34 The Applicant herself raised in her cross-examination of Ms Christadoulou, an apparent inconsistency in the latter's evidence about whether the Applicant had gone into the back of the shop to view the roster. This issue in turn caused the Applicant to raise another inconsistency in the evidence as to when she had allegedly barged past and hit Ms Christadoulou's shoulder.

35 The witness statements of the Applicant and Ms Christadoulou are silent on the issue as to the Applicant going out to the back of the shop in order to view the roster, after their initial conversation as to the Applicant's start time. This issue was raised in the late put on statement of Ms Gill who deposed that she saw the Applicant "go into the back room where the roster is kept..." (Ex 5 - para 8) Related to that new claim is another incident raised by Ms Christadoulou and supported by Ms Gill in their witness statements. This incident is the claim that the Applicant barged past Ms Christadoulou and her shoulder made physical contact with the shoulder of Ms Christadoulou. (Subsequently, the Applicant is alleged to have intentionally knocked down the stack of fish and chip boxes).

36 Before dealing with the inconsistencies in the evidence about the foregoing two incidents (as brought out through the cross-examination carried out by the Applicant), the Commission notes that her reply witness statement filed on 23 July, denied she had barged past and made physical contact with the shoulder of Ms Christadoulou. (Ex 2, para 14) The Applicant also denied under cross-examination from the Respondent's legal representative, that she had gone to the back of the shop to view the roster. (Tr 9, line 34 to 39)

37 In summary of these two issues so far (before dealing with the inconsistencies in the evidence), there had only been one issue raised by Ms Christadoulou in her witness statement: the barge past/physical shoulder contact. Ms Christadoulou did not depose that she had told the Applicant to go out to the back of the shop to view the roster.

It is Ms Gill who deposed about the two issues in her late put on witness statement. It is important to note the timing sequence of the two incidents as alleged by Ms Gill, in respect of the inconsistency issue. Ms Gill has the barge past/physical shoulder contact incident take place before the Applicant allegedly went out to the back of the shop to view the roster. (Ex 5, paras 8 and 9)

38 During examination-in-chief by her legal representative, Ms Christadoulou raises for the first time that she had told the Applicant to check the roster. From the context of her evidence, it indicates that the Applicant did not go out to the back of the shop to view the roster. Rather, the Applicant is said to have "started yelling and going off" - then "brushed by me" (Ms Christadoulou) - then knocked down the boxes - and was then told to come back on Wednesday to pick up her pay. (Tr 20, line 30 to Tr 21, line 4)

39 Under cross-examination by the Applicant, Ms Christadoulou confirmed that the Applicant barged past her and then left the shop; thence her evidence was that the Applicant "could have" (brushed past Ms Christadoulou on the way to look at the roster in the back of the shop) but "I didn't see you because I was in shock"; but then added that the Applicant had not brushed past her on the way, allegedly, to see the roster in the back of the shop. (Tr 23, line 13 to 41)

40 It seems then from the evidence of Ms Christadoulou, that the Applicant had barged past/made physical contact with Ms Christadoulou after allegedly going out to the back of the shop to view the roster. Ms Gill, however, deposed it was the other way around. For the record, the Applicant denied she had gone out to view the roster because it no longer existed. She deposed she asked to see the roster but was told by Ms Christadoulou that it had been torn up. (Ex 1, para 13)

41 As to viewing the roster in the back of the shop, Ms Christadoulou deposed nothing of this in her statement. In the witness box, she was challenged by the Applicant as to Ms Christadoulou's version of going to see the roster: did the Applicant go by herself to view the roster or did they view it together? Initially, Ms Christadoulou testified they both went to view the roster; thence it was either the Applicant only or both; thence Ms Christadoulou asked the Applicant from the witness box if the Applicant had looked at the roster and the Applicant respondent: "No, I didn't, Maria (Ms Christadoulou)". To which, the latter responded: "Okay". (Tr 33, line 50 to Tr 34, line 36)

42 Under cross-examination on this issue of allegedly viewing the roster out the back, Ms Christadoulou has changed her evidence from they both viewed the roster; to maybe only the Applicant viewed the roster; to accepting that the Applicant had not viewed the roster. Ms Gill deposed that the Applicant had viewed the roster.

43 The Commission has had conflicting accounts of events/conversations and evidentiary inconsistencies for 23 March, 2009, to consider. Having considered the foregoing events/conversations and evidentiary inconsistencies, the Commission has decided to prefer the account of the events/conversations of 23 March, as given by the Applicant.

44 The Commission set out above the additional information as to what occurred that day and as claimed by Ms Gill. That additional information contained allegations of negative character comments being made by the Applicant against Ms Christadoulou who claimed to be unaware of these adverse comments about her because she was in shock from the Applicant's behaviour.

45 The Commission finds that it is not plausible that Ms Christadoulou could have been unaware of such adverse attacks on her character. The Commission rejects the defence of shock to explain why she was unaware of such alleged adverse character comments upon herself. No where in her witness statement, does Ms Christadoulou say that she was in a shocked state as a result of the conversation between her and the Applicant. Nor does she depose that she was in a state of shock but cannot recall why she was in that state as a result of the Applicant's behaviour.

46 The Commission finds that the failure of Ms Christadoulou to make any reference in her witness statement to these adverse character allegations, or that she was in a state of shock from the Applicant's behaviour but could not remember why, suggests that these allegations contained in the witness statement of Ms Gill, did not take place at all.

47 The Commission also found the evidence of Ms Christadoulou unreliable when she asserted on the one hand that she and the Applicant had viewed the roster together but then agreed with the Applicant that they had not viewed it together. This change in the evidence came across unsatisfactory as to reliability to the Commission when viewed in the context of the shock defence to the serious adverse character allegations made by Ms Gill. This change in her evidence assisted the Applicant's claim that she had not viewed the roster in the back of the shop. But it also contradicted the evidence of Ms Gill who claimed that the Applicant had gone into the back of the shop to view the roster.

48 In summary, the Commission prefers the evidence of the Applicant as to what occurred that day and will now consider her claim that she was unfairly dismissed, in light of her version of the events of that day.

The Unfair Dismissal Claim

49 The Applicant claimed that she had been unfairly dismissed on 23 March, 2009. Her version of the events (and the Commission's preferred version) of that day is that she had gone to work, for a shift start of 3.30pm. The Applicant attached to her witness statement a copy of what she said was the roster for that week. Ms Gill and Ms Christadoulou both said that that was not a copy of the roster for that week. Ms Christadoulou (the Respondent/employer in the proceedings), did not produce in evidence a copy of what she claimed was the correct roster. She did not do so, because she had thrown away the roster. (Tr 33, line 15 to 33)

50 The evidence from Ms Christadoulou was that this roster was thrown away as it had to be replaced by a new roster in light of the Applicant no longer being employed. But in any event, it was thrown away after the termination of the Applicant and hence after the Applicant gave evidence that she had told Ms Christadoulou in the shop on 23 March, that she would be taking the Respondent for unfair dismissal. (Tr 11, line 28 to 31) In light of the Applicant advising of an unfair dismissal action, which had arisen out of a dispute about the starting time of the Applicant as allegedly shown on the roster, then why would Ms Christadoulou not hold onto that roster sheet as evidence that the Applicant had arrived late for work?

51 As already stated, the Commission prefers the evidence of the Applicant and accepts that she was due to start work at 3.30 pm on that day and not 3.00pm

52 The conversation that took place, mainly between the Applicant and Ms Christadoulou, was not amicable. The Applicant deposed that Ms Christadoulou yelled at her for being late. (Ex 1, para 13) Ms Christadoulou gave evidence in the witness box, under examination-in-chief, that it was the Applicant who yelled at her. (Tr 20, line 30 to Tr 21, line4)

The Commission prefers the evidence of the Applicant and accepts that it was Ms Christadoulou who was agitated against the Applicant for her alleged lateness for duty.

53 The Applicant did not barge past and make shoulder contact with the shoulder of Ms Christadoulou, according to the Applicant and the Commission prefers her account. The Commission has already pointed out that Ms Christadoulou and Ms Gill gave inconsistent evidence about this alleged barges past/physical shoulder contact. Ms Christadoulou had the barges past/physical shoulder contact taking place after the Applicant allegedly went out to the back of the shop to view the roster. Ms Gill, however, had the incident the other way around (paras 33 to 40 above)

54 The Commission accepts the Applicant's evidence that she did not go out to the back of the shop to view the roster. Ms Christadoulou's evidence in the witness box on this issue changed from alleging that the Applicant had gone out to the back of the shop to accepting that she had not. (see para 41 above)

55 The next incident that occurred was the Applicant knocking over a stack of fish and chip boxes. The Commission accepts the Applicant's version that she knocked the boxes with her elbow whilst stepping backwards and that this was an accident. (Ex 2, para 14)

56 The Applicant was then orally dismissed by Ms Christadoulou who advised the Applicant to come back on Wednesday to collect her pay as she was no longer working there.

CONCLUSION

57 Having considered all of the evidence, the Commission finds that the dismissal of the Applicant was unjust and harsh: Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183.

58 The dismissal was unjust because the Commission has found that the Applicant was not late for work and therefore Ms Christadoulou was in error in holding that the Applicant was late for work. That wrong assessment by Ms Christadoulou caused the incident to get out of hand. Ms Christadoulou made a further error in judgement when she assessed that the Applicant had intentionally swiped at the fish and chip boxes. That wrong assessment caused Ms Christadoulou to dismiss the Applicant when there was no foundation for doing so.

59 The dismissal was harsh because of the personal and financial situation that the Applicant found herself in because of the dismissal. The Applicant was employed in a coastal town where the availability of employment is more limited than in the Sydney and metropolitan area. The Applicant gave evidence on her attempts to seek employment.

60 The Applicant seeks compensation for her unfair dismissal. Having found the dismissal to be unfair, the Commission shall make Orders in favour of the Applicant for compensation. The awarding of compensation is not the outcome of a mathematical approach: D and R Commercial Pty Ltd v Flood (2002) 113 IR 344

The Applicant's unfair dismissal application gave her gross pay as $410.70 per week.

ORDERS

In this matter for reasons outlined herein, I have determined that the dismissal was harsh and unjust and I make the following orders:

(a) The Commission orders that the Respondent (Maria Christadoulou t/as Bayview Seafoods) pay to the Applicant (Shiree Ann Hughes) an amount of compensation of $4,000 gross.

(b) The amount of compensation specified above has been determined, having regard to section 89(5) and 89(6) of the Industrial Relations Act 1996.

(c) The amount of compensation specified above is to be paid by the Respondent to the Applicant within twenty-one (21) days from the date of this Decision.

A Macdonald
Commissioner

LAST UPDATED:
18 September 2009