Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees v Victoria Point Early Learning Centre [2000] QIRC 96 (2000) 165 QGIG 137

13 October, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 137 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees AND Victoria Point Early Learning Centre (No. B396 of 2000) COMMISSIONER BROWN 3 October 2000 DECISION On 21 March 2000, the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees (ALHMU) filed an application on behalf of Meleeta Morgan (Morgan) for reinstatement to her former position with Victoria Point Early Learning Centre (the respondent) without loss of wages. The Commission was satisfied that all attempts to resolve the matter by conciliation were or were likely to be unsuccessful. Ms J. Billingsley for the ALHMU represented Morgan and Mrs L. Pahwa the respondent. Leave was granted for Suresh Pahwa, witness for the respondent and principal of the respondent to remain in the Court Room to assist Mrs Pahwa. Further, following the conclusion of the hearing, while reviewing the documents associated with the hearing, it became apparent to the Commission that the application was lodged against a business name, whilst the separation certificates included in the case material nominated Tewin Wood Pty Ltd as the employer. To overcome the uncertainty on the question of who the respondent actually was, the Commission re-opened to take submissions on the matter. Once the correct name of the respondent was established, Tewin Wood Pty Ltd t/a Victoria Point Early learning Centre, the Union sought leave to amend the application accordingly. Having regard to s. 272(2)(b) and being satisfied that neither the case for the applicant nor the respondent would be affected by such an amendment, leave was granted. Leave was also granted to the ALHMU to allow the application to be amended to include s. 73(2)(k) Discrimination as an invalid reason allegedly involved in the dismissal. Morgan gave evidence to the effect that she had been employed at the Centre in various capacities since 1997. During 1998/99 she took maternity leave and upon her return having been offered the choice between full-time and casual work, opted voluntarily for a casual position commencing 20 October 1999. Details of this arrangement were contained in an agreement submitted as an attachment to Ex I and signed by Morgan, the Director and the Owner of the Centre. This agreement set out certain aspects of the employment relationship. In early December 1999, Morgan met with Jarmila Venzara (Venzara), Director of the Centre, and Suresh Pahwa during which Morgan was told they were pleased with her work and discussed the possibility of a traineeship. On 6 January 2000 an incident occurred following a telephone call to the Centre by Morgan’s husband. Morgan’s evidence was that Suresh Pahwa was upset and raised his voice over the issue of private calls. Upon returning her husband’s call during her break, her husband advised her that her daughter was ill. In the mean time both Suresh Pahwa and Venzura apologised to Morgan for the earlier exchange. Morgan claims that she advised Glenys Grey, the Group Leader in one of the rooms she was working in, that she was leaving. She also claimed that at the time she was upset by all of the circumstances. Morgan stated she told Suresh Pahwa and Venzura that she wanted to go home, asked the whereabouts of the sign-out book and when advised of its unavailability told Suresh Pahwa to remember when she left and to let the Director know to sign off for her. Morgan denied resigning. Morgan reported for work the following day and was informed by Venzura of a roster change that would see her with no hours of work for the following week and that Morgan would be called when needed. -- 1 of 4 -- 138 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 October, 2000 Morgan finished the shift in progress and has not worked since. Morgan acknowledged that the Centre had been supportive of her in the past during her pregnancy. Morgan had seen, but could not recall, details of the Centre’s telephone policy. Morgan also acknowledged that her advice to others regarding her leaving the Centre amounted to a statement rather than a request. Renee Galea-Hedberg (Hedberg) gave evidence that she heard shouting but did not know exactly what was said. She claimed that Morgan was upset when she left the Centre. She submitted that Morgan told her that she was intending to leave early but did not advise her of her departure at the time. Hedberg produced a reference for Morgan with the approval of Venzura. Venzura changed some elements but withheld the reference because of the court case. Heather Hayes, an organiser with ALHMU, gave evidence that no separation certificate was sought until the respondent stated that Morgan was dismissed. To Hayes’ knowledge the respondent did not advise Morgan of her dismissal. Hayes stated she had made several phone calls to the Centre on Morgan’s behalf and she declined an offer to interview staff during a wage inspection on 15 March 2000. Hayes recounted a phone conversation with Suresh Pahwa on 14 January 2000 where he advised that as numbers were down at the Centre, no hours were available for Morgan. He also stated that Morgan was not dismissed and would be placed back on the roster when numbers permitted. On 2 March in a further conversation with Suresh Pahwa, Hayes was advised that Morgan was dismissed as she was not suitable as a child care worker and that she had abandoned her employment by going home without permission and that she was too much trouble. Hayes claimed that since January the Centre was performing more hours of care with extra staff. The respondent called Suresh Pahwa to give evidence. He agreed with Morgan’s account of her employment history up to 6 December 1999. However, he did not agree that firm arrangements had been made regarding Morgan’s proposed traineeship. His evidence was that Morgan was somewhat inflexible over hours, which caused some friction amongst staff. He claimed he had raised concerns with Morgan that the abnormal number of personal phone calls were becoming disruptive and both he and Venzara resolved to speak with her if it continued. On 6 January 2000 during a meeting with Venzara, Suresh Pahwa stated he witnessed a phone call taken by Venzara. The caller was Morgan’s husband, who without argument, accepted that a message to return his call would be passed to Morgan. This prompted a meeting between Suresh Pahwa, Venzara and Morgan whereupon Suresh Pahwa advised Morgan, that in his opinion, she was receiving too many calls and to minimise them. Morgan became emotional, started yelling and left the office. After Venzara’s attempts to calm her, Morgan returned to the office, commented on the way Suresh Pahwa had spoken to her and told him that she was going home. He claimed Morgan did not mention her sick child. Suresh Pahwa contended that Morgan did not ask for the sign-out book nor did she ask anyone in authority if she could leave. Morgan had in his view abandoned her position, failed her duty of care and left the Centre unable to meet its child/staff ratio, thus endangering children’s safety. This evidence was at odds with that of the Director, Venzara, who stated that her personal intervention ensured that the centre met its obligations. When Morgan returned to work on 7 January 2000, Suresh Pahwa and Venzara decided to leave her in her position rather than confront her thereby risking another outburst and the accompanying side effects. Suresh Pahwa raised his concerns about Morgan with Venzara, namely her behaviour, unreliability, lack of commitment, limited number of roles able to be performed, limited hours and lack of qualifications. Although Suresh Pahwa claimed that Morgan had abandoned her post, he agreed that Morgan was told that she was not required the following week as the staff she was replacing returned from holidays and children numbers were low. She was informed the respondent would call her if the numbers improved. The enrolments remained low in the following months. Suresh Pahwa was unable to explain the differing separation certificates or why one appeared to have been altered with respect to the reason for termination. Jarmila Venzara was Director of the Centre during the period under review. Her evidence supported that of Suresh Pahwa regarding the employment history of Morgan. Venzara put the number of calls per day for Morgan at 1 to 2 as against Suresh Pahwa’s evidence of 5 to 6. Venzara supported Suresh Pahwa’s version of events of 6 and 7 January 2000. She confirmed Morgan’s evidence that Suresh Pahwa’s voice was “louder than usual” during the phone issue discussion. She confirmed phone use was regularly discussed in staff meetings. Venzara did not allocate hours to Morgan the following week but advised her that she would call her if the numbers improved. The numbers did not improve in the following weeks. Kelly Tennant, a co-worker, gave evidence that on 6 January she observed that Morgan was upset but she was not aware of the reason. She claimed that Morgan stated to her, words to the effect, that “I should just quit”. Under cross-examination she equated this to thinking out loud. Tennant believed Morgan had resigned and informed her mother, also a co-worker, of this. Both were surprised to see Morgan at work on 7 January. Conclusions On Morgan’s return to work on 7 January 2000, the respondent failed to properly clarify its position with regard to Morgan’s employment. -- 2 of 4 -- 13 October, 2000 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 139 In saying this, the evidence shows that the respondent failed to advise Morgan of its true opinion of her performance and conduct of 6 January 2000 and of its true opinion of her suitability as a child care worker. In so doing the respondent failed to allow Morgan to properly consider and respond to any allegations. Instead, on 7 January 2000 the respondent, with no expression of concern to Morgan over the previous day’s events, simply advised Morgan that, due to staffing and child numbers, she would be given no hours in the following week, but would be contacted in the event of an upturn in demand. At that point Morgan was entitled to presume that the employment relationship was intact despite the previous day’s events. With the passage of time and in the absence of any contact from the respondent, Morgan, through her Union, sought clarification of her position. I accept the evidence of Hayes that a separation certificate was requested only after the respondent confirmed to her that Morgan was dismissed. Despite the fact that the respondent’s evidence that Morgan was a good employee and that she would be given casual work when the opportunity arose, the separation certificate recorded the reason for termination as “unsuitable for this type of work”. I draw no conclusions from the fact that 2 certificates were issued or that 1 appeared to have the reason for termination altered. However, in light of the evidence, it is, to say the least, surprising that the reason for termination was not recorded as “shortage of work”. In this light and having considered the evidence and submissions, I am satisfied that the true reason for Morgan’s termination was dissatisfaction with her performance and conduct emanating from the incident on 6 January 2000 and a view that she was not a suitable employee in child care. Section 77 of the Act requires that the Commission must consider, if the dismissal related to the employee’s conduct, capacity or performance whether the employee had been warned about the conduct, capacity or performance or whether the employee was given an opportunity to respond to the allegations about the conduct, capacity or performance. In considering whether the employee had been warned regarding conduct, capacity or performance, I must have regard for the fact that the respondent decided not to confront Morgan with their views and concerns, instead they allowed her to finish her shift with the understanding that she would be contacted when work was available and made no subsequent attempt to clarify the situation. The reason given was that they feared a volatile reaction from Morgan of the sort that would disrupt the Centre if they raised matters with her. The ease with which arrangements could have been made to discuss these matters away from the children or the Centre is obvious, yet no effort was made by the respondent to this end. Appended to Ex. 1 is the agreement between Morgan and the respondent relating to continuing terms of employment. The parties acknowledged both the existence and the status of the document in regulating the issues referred to in it. Importantly, Morgan was required to sign to acknowledge that the terms of employment would be re-evaluated each 12 months. In that the agreement was entered into on 21 October 1999 (the date Morgan’s signature was witnessed by the respondent) the terms of the agreement were in force at all times during the events leading up to this matter. The document records Morgan’s status as a casual assistant working 12 hours per week at $12.98 per hour. The respondent failed to notify Morgan of their concerns in writing in line with the requirements of the agreement and they further failed to provide Morgan with the notice period therein referred to (although the exact amount is not clear). In considering the evidence in line with s. 77, I find that the respondent failed to warn Morgan about her conduct, capacity or performance. With regard to whether the employee was given an opportunity to respond to the allegations about conduct, capacity or performance, the evidence was that the Union was eventually advised that Morgan was dismissed. At no time prior to this was Morgan advised that she was dismissed, and consequently was not given an opportunity to respond. Having regard to all of the evidence and submissions, I am satisfied that Morgan’s dismissal was harsh, unjust and unreasonable and in the circumstances, unfair. With respect to the proposition in the amended application that the dismissal was for an invalid reason, I am satisfied that during the emotion charged atmosphere surrounding the events of 6 January 2000, it is possible that Suresh Pahwa did not understand that Morgan’s departure was due to family reasons. Therefore, I am satisfied that discrimination on the basis of family responsibilities was not present in the dismissal, hence the submission that the Respondent pay Morgan 135 penalty units is rejected. Morgan has not worked at the Centre since early January 2000, a period in excess of 7 months. It is obvious from the evidence that staff numbers in the Centre equate to the number of children in care and the amount of time they are in care. It is also obvious that the work available is currently being covered by existing employees. Time has marched on. Reinstatement of Morgan would displace an existing employee. I am further satisfied on the evidence that the level of trust and confidence needed for a productive relationship is lacking. For these reasons, I am not inclined to order reinstatement but rather to compensate Morgan pursuant to s.79 of the Act. With regard to compensation, I have taken into account the length of service of Morgan and the events which led to the breakdown in the relationship. I have also taken into account the efforts of Morgan to mitigate her loss (Para. 12 Ex. 2) and have decided to order that the respondent pay to Morgan, within 22 days of the date of publication of this decision, an amount equivalent to 16 weeks pay calculated at the number of hours contained in the employment agreement annexed to Ex. 1, that being 12 hours per week at the hourly rate of pay for a casual as at 2 March 2000, or the hourly rate contained in the agreement of $12.98 per hour, whichever is the greater. -- 3 of 4 -- 140 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 13 October, 2000 Order accordingly. D.K. BROWN, Commissioner. Appearances:– Released: 4 October 2000 Mrs L. Pahwa for Tewin Wood Pty Ltd t/a Victoria Point Early Learning Centre. Ms J. Billingsley for the Australian Liquor, Hospitality and Miscellaneous Workers Union, Queensland Branch, Union of Employees. -- 4 of 4 --