Black v Happy Days Child Care Centre [2000] QIRC 125 (2001) 166 QGIG 6

6 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 January, 2001 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Veronica Judy Black AND Happy Days Child Care Centre (No. B322 of 2000) COMMISSIONER BECHLY 19 December 2000 Application for reinstatement – Employee previously terminated in contemplation of sale of employer – Condition of sale of employer required re- employment of employee after sale – Employee allowed to re-enter premises to carry out employment duties after sale – Employee subsequently dismissed because of her wearing an eyebrow ring – Termination harsh, unjust or unreasonable – Whether employee was in fact a “volunteer” in terms of Child Care Industry Award – State – Application granted. DECISION Ms Veronica Black seeks redress under the Act for termination of her employment as a Group Leader with a child care centre trading as Happy Days Child Care Centre. Ms Black had been employed at the Centre since May 1994. The respondent was not present at the hearing. Relevant documentation was appropriately served on the respondent and every reasonable endeavour was made to ensure that it was aware of the course the matter was taking. Happy Days Child Care Centre was operated by Montello Pty Ltd from 1993 until it was sold in February 2000. The business was purchased by Beaverson Pty Ltd ACN 074 005 459 and the real estate was purchased by Bentwood Enterprises Pty Ltd ACN 090 822 772. Mrs Kerrie Howie is named on the contract of purchase by Beaverson Pty Ltd as the sole director/shareholder. The evidence of Ms Elsie May Cummins, director of Montello Pty Ltd is that a term of sale was that the purchaser required all staff to be terminated as of 18 February 2000 and have all entitlements paid to them but then be employed by Beaverson Pty Ltd to ensure no dislocation with respect to the children and parents using the Centre. This condition was verbal but also contained in the written contract in the following terms: “All staff to be terminated and paid out entitlements, Purchaser will reemploy.”. A letter to this effect was provided to all staff by Ms Cummins. The letter was known to the directors of Beaverson Pty Ltd at the time it was given to the staff, including the applicant, who was given a copy of the letter on Friday 18 February 2000, the date of sale of the business. On Monday 21 February 2000 the applicant commenced her duties just before the usual starting time of 6 a.m. by unlocking the doors, disarming the security system and carrying out other duties to prepare the centre to receive clients. She received children between 6 and 6.30 a.m. and attended to the making of morning tea for children. She carried out organised activities with children to 9.30 a.m. and then left the premises to purchase necessary groceries for the rest of the week. The new owners had not attended the premises before she left although, on her evidence, they may have been driving in as she was driving out to carry out her required duties. She returned at approximately 11.00 a.m. and began to prepare lunch for the children. Just before mid-day she was called in to the office and interviewed by Mr D. Howie, the husband of the director/secretary of the business, Mrs Kerrie Howie. Mr D. Howie introduced himself as representing the new owner of the child care centre, Beaverson Pty Ltd, and questioned Ms Black as to her qualifications, experience, etc. and provided her with an explanation of intended future directions. Mr Howie questioned Ms Black about a piece of jewellery she wore in her eyebrow. The eyebrow ring had been worn by her for some two years and was acceptable to the previous employer whose evidence was that no parent had shown any concern to her about Ms Black wearing the ring and that it did not interfere with the carrying out of her duties. Ms Black states that Mr Howie informed her that he found the ring offensive and asked her if it was removable. On being advised that pliers would be needed to assist removal Mr Howie stated that he was an engineer, had pliers in his car and would remove it for her. Ms Black declined the offer. Mr Howie went on to say that people who smoke, have tattoos or piercing rate below zero and, on being advised by Ms Black that she did not smoke or have tattoos, Mr Howie indicated that she would rate a negative with him. He further stated that she was disadvantaged and, because of the ring would not get another job and would never get a job at a particular girls’ high school in Brisbane, and went on to say that “society judges people by their appearance and that’s why there will never be a woman head of BHP or Prime Minister of Australia.”. Mr Howie gave Ms Black a week to decide whether to keep the eyebrow ring or the job. On returning home Ms Black was in a distressed state and her mother rang Mr Howie to enquire as to the problem. He told her that he found the ring offensive and that Ms Black had a decision to make. He further stated that Mrs Black was not the employee and he did not have to speak to her. Mr Howie rang Ms Black later that afternoon and asked “have you made your decision about the modification I require of you?”. She replied “I think it is very unfair of you to ask me like that.”. Mr Howie then said “oh well we no longer have a position for you – don’t worry about coming back to work, you no longer work here.”. No notice of termination was given. No payment in lieu was made. No payment has been made for work performed on Monday 21 February 2000. The respondent refused to attend the hearings. Attempts were made to contact the respondent by phone half an hour after the commencement of hearing on the first day to ascertain the reason for non-attendance. I am informed that a male person answered the call and, on being advised that the call was being made by the Commission, the phone was put down, without disconnection, and no responses were given to enquiries made. Later directions as to subsequent hearings were served on the respondent. Some were returned to the Registry by the respondent. -- 1 of 3 -- 5 January, 2001 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 The application as originally filed and served named Happy Days Child Care Centre as the respondent employer. There was no representation from the employer at the conference required by the Act, or at the call-over held on 6 April 2000. Pursuant to Directions Orders issued from the call-over by the Vice President, Ms Black personally delivered witness statements to the premises of Happy Days Child Care Centre which were attended by both Mrs Kerrie Howie and Mr Derek Howie. When the envelope containing the documents was handed over it was twice thrown on the floor. Mrs Kerrie Howie then ordered Ms Black off the premises and, as she was leaving, Mr Derek Howie tore the envelope and documents in two and threw them at Ms Black, hitting her in the back. The matter was first heard on 5 May 2000 when evidence was given by the applicant and other witnesses. When it became apparent that the trading name of the entity said to be the employer had been named in the application documents the matter was adjourned to enable appropriate action to be taken to amend the application and serve the amended application on the correctly named entity, so as to ensure that further opportunity was provided to enable it to defend the application. The amended application was served on Mrs Kerrie Howie, Secretary of Beaverson Pty Ltd, trading as Happy Days Child Care Centre on Friday 19 May 2000 in accordance with Rule 45(1)(a)(ii) of the Industrial Court Rules 1997. That application was returned to the Registry with a covering letter from Beaverson Pty Ltd dated 21 May 2000 making certain claims with respect to the matter. The Registry responded on 30 May 2000 and informed Beaverson Pty Ltd that the matter was part-heard and that sworn evidence before the Commission differed from the information contained in the correspondence. Beaverson Pty Ltd was informed that if it wished the contents of the letter of 21 May 2000 to be given weight then evidence would need to be provided at the resumption of the proceedings. The parties were informed by the Registry by letter of 5 June 2000 that the matter was listed for further hearing at 10.00 a.m. on Tuesday 27 June. Further correspondence was received from Beaverson Pty Ltd, dated 23 June 2000 which acknowledged receipt of the letter of 30 May 2000. Significant information, amongst a range of matters raised in the various correspondence from Beaverson Pty Ltd, is the claim that the applicant was never an employee of Beaverson Pty Ltd and that staff employed at the Centre are employed by an unnamed contract organisation that supplies labour to the child care industry. The correspondence refers to the contract of sale, and the explicit term which required that the vendor terminate the employment of the employees. However no reference was made to that term of the contract which provided for the subsequent employment of all staff by Beaverson Pty Ltd. The correspondence of 21 May states in item 6: “In accordance with the normal practice in the child care industry, certain of the staff persons were then invited to continue working at Happy Days on Monday 21-2-00 on an unpaid volunteer basis and on a trial basis whilst it was decided which persons might be offered employment to continue at Happy Days. Note that the Award allows for unpaid volunteers. Beaverson uses a contract organisation to assess potential staff using normal HR techniques including matrix assessment of attributes. Mr D Howie is associated with the organisation contracted by Beaverson for this purpose.”. And in item 7: “In the event, certain persons were assessed to be of a standard sufficient to be offered employment by the company that Beaverson contracts to supply labour, and some persons weren’t. Ms Black did not reach the required standard, and so the offer of volunteer work at Happy Days was withdrawn in her case.”. On the evidence before me no offer was made to the applicant to work as an unpaid volunteer at any time prior to 21 February 2000. Wages of staff retained were paid by cheque drawn on the account of Beaverson Pty Ltd T/As Happy Days A.C.N. 074 005 459 and Australian Tax Office Group Certificates were issued naming Bontac Enterprises Pty Ltd as the employer. The correspondence of 30 May 2000 from the Registrar draws to the attention of Beaverson Pty Ltd the provisions of s. 69 of the Act. That section describes a transferred employee as being a person who becomes an employee of a new employer because of the transfer of a calling to the new employer from another (former) employer within a month before the transfer of a calling if the person is employed by the new employer after the transfer and within three months of the dismissal. Additional to the indication contained in item 7 of Beaverson Pty Ltd’s letter of 21 May 2000 and the condition of the contract of sale relating to intention to employ the staff of Montello Pty Ltd, Ms Black actually commenced working for the new owner of the business, Beaverson Pty Ltd, at 6.00 a.m. on Monday 21 February 2000 and carried out all duties required of the position she occupied for virtually a whole day. Contrary to the events described in item 6 above, a number of staff commenced working on 21 February 2000 for Beaverson Pty Ltd before Mr and Mrs Howie appeared on the premises at around 10.00 a.m. The centre did not close down on Monday 21 February 2000 to enable interviews, assessments and decisions to be made as to future employment of existing staff. It appears that no such interviews, etc. were made between Friday 18 February 2000, the last day of employment with the former employer and Monday 21 February 2000, the first day of employment with the new employer, Beaverson Pty Ltd. There was no such interview with the applicant or another employee who provided evidence in these proceedings. Beaverson Pty Ltd expected the business to continue to be conducted by all existing staff of Montello Pty Ltd. If that was not the case, why did the new owner not attend the premises until four hours after the opening of the centre by staff previously employed? To state that staff were to work from Monday 21 February 2000 as unpaid volunteers on a trial basis and that that arrangement was sanctioned by the award simply ignores the contract condition with respect to employment of Montello Pty Ltd employees by Beaverson Pty Ltd, the sanctioned advices given by Montello Pty Ltd to its employees about the intentions of Beaverson Pty Ltd and the award provision at clause 1.5.1(e) with respect to the requirement that a written agreement be made about unpaid volunteer employment. It also ignores the provisions of s. 69 of the Act. Notwithstanding the assertion of Beaverson Pty Ltd that Ms Black was never an employee it is clear at least from a consideration of s. 69 of the Act that she became an employee of Beaverson Pty Ltd when she commenced working at 6.00 a.m. on Monday 21 February 2000 providing a service to enable Beaverson Pty Ltd to meet its obligations to clients. By virtue of ss. 68 and 69 of the Act Ms Black is not a person excluded by s. 72 of the Act from access to redress for unfair dismissal under Chapter 3. -- 2 of 3 -- 8 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 January, 2001 Whatever may have been the later arrangements made between Beaverson Pty Ltd and Bontac Enterprises Pty Ltd with respect to the supply of child care staff subsequent to the takeover of the Happy Days Child Care business by Beaverson Pty Ltd, the employment arrangements existing as from the commencement of Ms Black’s duties on 21 February 2000 were between herself and Beaverson Pty Ltd as a consequence of s. 69 of the Act. On the material before me it seems that Mr D. Howie acted on the authority of the employer to terminate the applicant after she had substantially completed a day’s work on 21 February. The termination of the applicant’s employment was unfair. The action of the employer was harsh, unjust and unreasonable. On the material before me there appears to be an element of discrimination. It is also obvious, on the conduct of the employer since the termination took place, that the employment relationship will be unable to be restored. I award compensation pursuant to s. 79(2)(a) of the Act. Ms Black gained limited casual work in May 2000 and has limited prospects of securing an equivalent position to that from which she was terminated. I order that Beaverson Pty Ltd pay Ms Veronica Judy Black the sum of ten thousand, two hundred dollars within twenty-one (21) days of the issuing of this decision to the parties from the Industrial Registry. This matter will be listed for further hearing on application. R.E. BECHLY, Commissioner. Appearances:– Ms K. Bow, of the Queensland Working Women’s Service Inc., for the Applicant. Released: 19 December 2000 ########################################################################################################################## # -- 3 of 3 --