Department of Industrial Relations (on behalf of Bartholomew) v Larbound Pty Ltd [2001] QIRC 152 (2001) 168 QGIG 113

113 Vol. 168 FRIDAY, 12 OCTOBER, 2001 No. 6 ########################################################################################################################## # QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 278 – unpaid wages Department of Industrial Relations (on behalf of Dianne Bartholomew) AND Larbound Pty Ltd (No. W125 of 2001) COMMISSIONER BLOOMFIELD 27 September 2001 Unpaid Wages – Claim for payment of five weeks’ notice – Applicant claimed she had been granted six months’ leave of absence – Respondent claimed that Applicant’s employment had ended prior to leave commencing – Arbitrated Matter – Witness evidence – Witness credibility – Certain aspects of Respondent’s evidence not accepted – Applicant’s evidence and version of events preferred – Applicant terminated when she attempted to resume work – Payment in lieu of notice not made – Respondent ordered to pay $3,871.35 in lieu of notice. -- 1 of 3 -- 114 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 October, 2001 DECISION Mr Dru Elliott Powell, of the Department of Industrial Relations, seeks payment of $3,871.35 – which represents five weeks of unpaid notice allegedly owed to Ms Dianne Bartholomew – from Larbound Pty Ltd. Larbound Pty Ltd is the service company for a patent/trademark attorney firm known as Ahearn Fox. Ms Bartholomew is aged over 45 years of age and had been employed by the Respondent, Larbound Pty Ltd, from 1 July 1997. Prior to 1997 she had been employed by another service company – TGA Services Pty Ltd. She had worked on and off for Mr Ahearn since 1979. Her most recent engagement commenced in around March 1994 on a part-time or casual basis, and from June 1995 on a permanent basis. There is no dispute her employment was transmitted from TGA Services Pty Ltd to Larbound Pty Ltd when Mr Ahearn and Mr Fox established their partnership. Ms Bartholomew said she had received verbal approval from both Mr Ahearn and Mr Fox in around September or October 1998 to take a period of extended leave from the end of March 2000 until the end of September 2000. Ms Bartholomew produced a letter, dated 15 March 2000 and signed by Mr Ahearn, which confirmed “our verbal advices” that her request for extended holiday leave from 31 March 2000 until 2 October 2000 had been approved. Ms Bartholomew also said she discussed her planned leave with Mr Ahearn and Mr Fox on many occasions in the eighteen months which led up to her leaving on her overseas trip. She also said her period of leave was recorded in a leave roster calendar that was kept in the kitchen. This showed her departure and return dates. Her evidence on this latter point was confirmed by Ms Sherwood. Ms Bartholomew said she had discussions with Mr Fox on Tuesday 28 March 2000 regarding the operation of a computer system which she had been installing over the months leading up to her departure and how she would be able to prepare end of financial year information after her return. She said he responded in positive terms that she would be the one who performed that task. She also said that Mr Fox gave her a list of European patent attorney firms she could visit during her trip. She left behind personal belongings including photographs and personal papers as well as photographic equipment. The first six weeks of her absence was paid as annual leave, which exhausted her residue entitlement, and the period from 15 May until 28 September was unpaid. Ms Bartholomew produced a copy of a letter to Mr Ahearn, dated 11 July 2000, in which she mentioned that she was looking forward to resuming their working relationship after her trip. Ms Bartholomew said she returned to the office on 27 September 2000 in anticipation of her return to work on the following Monday 2 October 2000. She mentioned her impending return to work to Mr Ahearn and said that he responded in a positive way. During that conversation he produced Ms Bartholomew’s letter of 11 July and talked about various aspects of it. Ms Bartholomew said that after speaking to Mr Ahearn she went and spoke to Mr Fox and they had a discussion regarding her trip. She mentioned she would be returning to work on Monday. There was no comment to the contrary from Mr Fox. However, later that same evening, Mr Ahearn phoned her to advise her that Mr Fox had said there was no work for her. Mr Ahearn told her that Mr Fox was of the belief that she had finished her employment with the company when she left to go on her trip in March. She responded by saying that Mr Fox was well aware she had only taken extended leave and was returning to work after her overseas trip. She requested Mr Ahearn to ask Mr Fox to contact her. On the following day Mr Fox rang Ms Bartholomew and informed her that there was no work for her to return to. He explained that there were no searches coming in and the accounts were running reasonably. He said he would have to put off one or two girls to accommodate Ms Bartholomew’s return and that would not be fair on them. After some further discussions Ms Bartholomew asked Mr Fox was she being terminated. He replied that there might be some part-time work for her in the future but he could not see that happening at present. Payment of five weeks in lieu of notice was requested on behalf of Ms Bartholomew on the basis that her employment had been terminated, without notice, by Mr Fox in the discussion on 28 September 2000. Each of Mr Ahearn and Mr Fox denied that they had agreed with Ms Bartholomew that she could take six months’ leave of absence. They insisted that as a small firm that type of arrangement was not possible. Mr Fox, in particular, argued that he knew nothing about any arrangement whereby Ms Bartholomew was proceeding on six months’ leave of absence. He said that the firm would never have been able to accommodate it and that he would never have approved it. He said that he always understood that Ms Bartholomew was leaving the firm to go overseas and that she would take her chances on re-employment when she returned. Whether she could be re-employed would depend upon what work was available at the time. Mr Ahearn attempted to downplay his role in the firm stating that all personnel matters had been taken over by Mr Fox. He said he was aware for some time that Ms Bartholomew was travelling overseas for a period of about six months. He claimed, however, that Ms Bartholomew did not tell him of any arrangements she had made with Mr Fox in that regard. He said he “found it convenient to assume that Fox and Bartholomew had conducted full and pertinent discussions”. Why he had found it “convenient” to do that was not explained. Each of Mr Ahearn and Mr Fox suggested that the letter of 15 March may have been obtained by false pretences because Mr Ahearn was recovering from a serious knee operation at the time and he (allegedly) would not have been in a fit condition to have vetted any such letter. Mr Ahearn agreed that the letter bore his signature but said he had not approved its preparation and could not remember having read or signed it. He said he may have signed it if Ms Bartholomew had placed it in front of him because he was used to signing things that she had prepared. Mr Ahearn also said that in late September Ms Bartholomew came to see him about her intention to recommence work on 2 October. In his witness statement he simply recorded that she had mentioned that she would see him on Monday. He recorded that he had spoken to Mr Fox later that day and asked him to confirm that Ms Bartholomew was expected on Monday. Mr Fox said that he was not. However, in his verbal evidence he claims to have told Ms Bartholomew that there was “no room for her” when she said to him that she would see him on Monday. He also claimed that he expressed the view to her that she was not expected back and that he had asked her whether Dan (Fox) thought she was coming back. I do not accept Mr Ahearn’s evidence on this latter issue. It was disingenuous. -- 2 of 3 -- 12 October, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 115 I gained the clear impression from listening to, and observing, Mr Ahearn that he had clear knowledge of, and had approved, Ms Bartholomew’s leave intentions from the time that they were first raised with him viz. September/October 1998. I am also satisfied that Mr Ahearn voluntarily signed the letter of 15 March 2000 and that he was in no way misled or deceived as to its contents. His later denial of any arrangement for six months’ leave of absence seems to have been to avoid any conflict with Mr Fox who was clearly the dominant personality of the two. Mr Fox holds a very strong view that Ms Bartholomew left the firm to go on an overseas trip and her chances of re-employment upon her return depended upon whether work was available. Mr Ahearn adopted that view of the arrangement – contrary to reality – because it suited him to do so. His evidence was created in an attempt to reinforce the position that he had chosen to adopt. I have no doubt from listening to the evidence of Ms Bartholomew, Mr Ahearn and Mr Fox that all three parties knew from around September/October 1998 that Ms Bartholomew was proceeding on leave in late March 2000 for six months and that it was her intention to return to work. Ms Bartholomew thought that she was proceeding on approved leave of absence and that she was returning to employment upon her return. I have no doubt that Mr Ahearn (at least) originally had a similar understanding. Mr Fox, however, convinced himself at some point in time that Ms Bartholomew could only return to work if work was available. However, he did not share that view with anyone prior to Ms Bartholomew’s departure (if, indeed, he had arrived at that position before her departure). When he did share his view with Mr Ahearn some time later, Mr Ahearn adopted it as representing the arrangement which the firm had with Ms Bartholomew. As I said above, I am satisfied that Mr Ahearn adopted that as the factual position because he was not prepared to argue with Mr Fox. To partially quote Mr Ahearn, it was the “convenient” thing to do. I am satisfied that whatever view Mr Fox may have had about Ms Bartholomew’s future with the company at the end of March 2000 it all firmed up in his mind during the next several months to be the one that he advocated during the hearing viz. that she could only return to work after her return from overseas if work was available. In that regard Mr Fox gave evidence that he held a discussion with Ms Bartholomew at the end of March 2000 about her intentions upon her return to Australia. He said that she said that she was not sure what she would do and that she may like to do some part-time patent/trademark searching from home or at the offices of Ahearn Fox if there was any such work available. Ms Bartholomew denied that the discussion which they had held had run along those lines. If it had, I am certain that Mr Fox would have reminded Ms Bartholomew of it when they spoke on the telephone on 28 September when he informed her that there was no work available for her. There is no suggestion that he did. I simply do not accept his evidence on this point. After considering all of the evidence I have reached the conclusion that Ms Bartholomew was given approval to go on leave of absence for six months by both Mr Ahearn and Mr Fox in September/October 1998. I am satisfied that after receiving that approval Ms Bartholomew proceeded to plan her trip in expectation of returning to employment upon her return. I am also satisfied that Ms Bartholomew did not terminate her employment, and nor was it terminated, in (or before) March 2000 when she went overseas. There were none of the usual events and trappings that one would associate with the departure from employment of a long-standing employee such as Ms Bartholomew. There were no farewell speeches, farewell gifts or anything of that nature. She was paid annual leave as if she was taking it rather than it being paid in lieu upon termination of her employment. She was given a list of several European patent attorneys that she was encouraged to visit during her trip. Her personal effects were left at work. Everything suggests a return to work. Taking everything into account I am satisfied, on the balance of probabilities, that Ms Bartholomew was first advised that there was no further position for her by Mr Fox on 28 September 2000. Until that time the agreed arrangement had been that she would return to work on 2 October 2000. Accordingly, Ms Bartholomew was entitled to five weeks’ notice of termination or payment in lieu thereof. It is the Commission’s order that Larbound Pty Ltd pay the sum of $3,871.35 to Ms Dianne Bartholomew within twenty-two days of the date of release of this decision. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr D. Powell, of the Department of Industrial Relations, with Ms D. Bartholomew. Mr D. Fox for Larbound Pty Ltd. Released: 27 September 2001 ########################################################################################################################## # -- 3 of 3 --