Caine v Café Continental [1999] QIRC 89 (1999) 160 QGIG 313

\}US __, ~ , l i\?R ,ssvJL ~ . l/BR 313 The Queensland Government Industrial Gazette pp 451207 100086 Vo l. 160 PUBLIBHEDBYAUTHORITY Annual Subscription $297 FRIDAY, 23 APRIL , 1999 ISSN 0 155-9362 No. 16 ########################################## ########### #### ################################### ############################### QUEENSLAND INDUSTRIAL RELATIONS CO MMISSION 100 &c /c --:, r:s. WORKPLACE RELATIONS ACT 1997 ijCftJ'.i/ (x I~ C 0,->?r>'? 0? /11d usrrial Relario11s Acr / 990 - s. 29 5 - application for reinstatement f'l \ ~\ C\ C\ EDWARD PE TER C AINE AND CAFE CONTINENTAL (No. B375 of 1997) tf CHIEF IN DUSTRIAL COMMISSIONER HALL 203882-30 'y V • . "'8 Apri\.1999 -- 1 of 2 -- 316 QUEENSLAND GOVERNMENT INDUSTRI AL GAZETTE 23 April, 1999 Evide nce paras 391 4 and 3916. To esta blish that the applica m w as a pro ba ti onary e mplo yee a nd that the term o f his pro bation had bee n d eter min ed prior to or co ntemporaneou sly with the making o f the contra c.1 of e mplo yme nt 1t 1s necess ary for the res po ndent to e~1ablish the letter of 7 Sept e mber 1998 w;L~ not inte nded by the parti es 10 fully slate Lhe terms o f their bargain and that other documents exe cuted on the same da y were co ntracmal in na ture and, with the letter o f 7 Se ptemb er 19 98, fo rmed part of a bundle o f doa.ime nts co nstituting the c ontrac t. The r espo nd e nt 's solicitor h as sou ght to do prec ise ly that. Be f ore turmng to those doa.iments, u 1s u se ful to say someth ing of the s ubseque nt hi s tor-y of the le tter of 7 Septe mb er 1998. It is the ev iden ce of Mr Re ddick and since he was not tToss- exanun ed upon it I accept his e videnct: , that abou t two wee ks after he co mme nce d empl oy ment on 14 Se pt e mb er 1998 he was no t rostered on to wo rk o n a Saturday. ll e says that he telep ho ned the o ffi ce and that in con sequence Mr Eiszele teleph on ed him b ack o n the Saturday night a nd sa id "O h, 1f the numbers ar e low, you ca n be put o ff ." Mr Re ddi ck further sa ys, and I accept ht~ eviden ce , that he ( Mr Reddi ck) then said " No, this is a full - t1mejob. " and that Mr E iszele the n said " Oh no. no, no, yo u're gomg to be casual for three month .i and then you'll go full-time." Mr Reddick asserts that he said "I beg your pard on''" and that Mr Ei S1-e le the n sa id "Yeah , Y ea h, i t' s the s am e for eve ry body, everybod y 's casu al for three m onths an d the n you go full-tune.''. A s I understand 1t. the appli cant' s beli ef 1s that he w as e nga ged o n a full- um e basis ar ose from the circ umstan ce that the po sition w as adverti sed as a full - time job (as Mr Eis ul e conced es), the way in whi ~h the re muneration is e xpre ssed in the letter of 7 Sep1e mber 1998 and the circunmance that because of his dom es tic respo nsibilities he would not have a ccepted a casual positi on. I mu st confess that having regard 10 the "te rminat ion" c lause of the le tter of 7 Se pe e mber 199 8 and the w ay in wluch the "re mun eratio n·· 1s e xpressed, I consider th ere 1s much to b e s aid for the vi ew that the a ppl icant was e ng ag ed as a casual. How eve r, on any vie w of the e viden ce Mr Eisze le was at le a.•t concerned that the app licant was right. On 2 Octobe r 1998 Mr Eiszt:lc approach ed the app licant immediately alter the Oce an Spirit had benh ed and pre vaile d upon him to sign a second versio n of the let ter o f 7 Sep1ember 1998. which differed from it in only one material r e~-pect. Adja cent to the h ea ding "re muneration" the words "as d efined as Grade 2 che f ~ -ual under the cen ified agr eeme nt" were in serted in h eu o f '"hourly rate - S 32,25 0." Amo ngs t the p,irts of the Jetter o f 7 S cpe e mber 199 8 which w ere not altered was the date it se lf. i.e. the le tter pr ese nted and e xe cute d on 2 O c.1ob er 1998 bare the date 7 Se pte mber 199 8. It is the e vide n ce o f Mr Eiszele that he re mo ved the le1t er o f 7 Sepi e mber 1998 from the appli ca nt' s e mployment file, d e Stroye d it and subst itute d the letter Stgned by the a pplicant on 2 O ct ober 1 99 8. In cross-exa nunatio n Mr Eis z.el e said that there was no pomt in retaining the ea rh er letter hut adtrutted that he had not o n a ny o ther occasion re moved su ch a Jetter fro m the til e and de stro yed it. With respecl to Mr Eiszele, given the c ircumstance that tht: second letter was dated 7 S epte mber 1998 I cons ide r that I should d raw the inferen ce Mr Ei57.ek was s eeking to generate a false and nusleading til e. The signifi ca nce of that finding s hortl y appears. In att e mpting to pomt to ano ther contractual d ocume nt establishing 1hat the appli cant was a probationary e mploy ee ,,nd that the pe nod of his probatio n had b ee n de termine d prior 10 or conte mporaneou s ly with the ma king of the contra ct, the re spo ndent' s so licitor pla ces great re liance o n a document exhibite d 10 an affida vit o f Mr Eiszele which 1s ,n the fol lo wing terms :- "!, the unders igned und erstand that I will b e e mployed on a 1hree months basis, after this period my performance in the positio n will be revie wed and s ho uld I or the co mpany consid er the position unsuitable e mployment wi ll cease without prejudi ce by mys elf of th e: company . Ve rno n Re ddick 7 .9.98 OCEAN SPIRIT CR UISES Ste ph en Eiszclc" . Mr E 157..ele a sserts that that d ocum ent w as execut ed by the a pph cant and himself whe n the d ocu me ntati on w as b c mg pre pared o n 7 Se pt e mb er 199 8. Th e appli ca nt says that the do cume nt was e xe cuted b y him and first sight ed hy him on 2 Oetober 199 8. For reaso ns whi ah follow, I have de cid ed 10 acce pt the app licant' s evide nce. The te ll er o f 7 Se pte mber I 99 8 is not cu sto m designed to SUit the special circumsta nces of the appli ca n t. lt was d variant of .i standard form le tter. Throug hout the proce edin gs Mr Eiszele has maintained that all new empl o ye es are taken on a.s cas uals for a three month probationary peri od . One would hav e thought in those circumstances that the so called "understanding" would have b een worked into the le tter. Additi onally, the applicant h a~ te ndered a cop y o f the sa me docu ment which he says wa~ given to him o n 2 October 199 8. It d iffers fr o m the d <X,'Uffi ent s..,t f0rth a bove in that it ha s not been ex ecuted by Mr E1 szele and 1s undated. It s eems to m e that if the document had surfaced on 7 Septe mber 199 8 it would have b ee n executed by both Mr Eiszele and the applicant o n that day, dated on that day and a c opy suppli ed to both panies o n that day. That it was the way in which the letter of 7 SepWmher 19 98 had b een dea lt with. If the ackn o wl e dgment had bee n e xecuted by the appli cant on 7 S e pte mber 199 8 Mr Eiszele can h ave ga ined no adva ntage by not signing a nd da ting it a nd all owing the appli ca nt to go a way with a copy signed only by him.self. If the d ocument w as signed by the apph ca nt on 2 Oct ober 1 99 8 Mr Eiszele w oul d deri ve e very adva ntage re fra ining fr om ex ecutin g 11 and dattng it on that d ay and allo wing the .ipplicant • n exe cut ed a nd ddled copy . T he advantage was lhat he was able to carry funher the pr oject o f developing a false and nuslead ing fil e by sig ning it an d backdating it in the appli cant 's abse nce. The fi nal d ocum e nt upon wh ich the res pondent 's so licitor re li es 1s a docu ment h eaded "e mpl oyee detail s". It is b ef ore th e Commi ssion in e ach three ver sio n.~. In o ne vers ion {the docume nt last te nded) it purports to be a c1omment partiall y co mpleted by the appli cant on 7 Septe mber I 99 8 and the n returned Lo Mr Eisze le. Apart from the alteration to Lhe salary/ wag es level admitte dly made b y Mr Eiszel e at a sub sequent time in red ink , certain fig ures appearing in the section "pay record'' dnd a dmittedly writte n by Mr Eisule a nd certain 11cks m bo x es a t th e bottom o f the form. 1t h.ts been completed by so me pers on holding a b lue b 1r o. The seco nd versio n o f the docu ment (and the v ersio n second tende d) is a ph otostat o f the d oc-um e ntju~1 d escribed with the section " pay recor d'' co mpleted in black biro by Mr Eis1.elc. (Strangely, two of the ti cks in the boxe s at the bottom o f the form have disappeared and a do llar sig n appe ars before the alteration to the sum opposite ~alary/w ages previou s ly describe d) l b e third version of the docume nt (a nd the d ocum ent te nde d second) u a photostat o f the docu me nt which I ha ve fir-1 d escribed. The a pplicant, who had ac cess to o nly what I have d escribed as the second version, thinks that insofar as words appear on the fo rm they arc, apart from the w or ds in the se cti o n "pa y record" w ords in his handwriting. How ever, he cann Ot re me mbt:r writing in the word s "thr ee mo nths'' ne xt to the word "prob,1t1 o n" in the fi rst p.,rt of the form. and be h eves that he wou ld not ha ve writte n 1hose worw because t hey were nOl true. lo f,urness to the applica n t, if he h ad access to what I h ave d escri bed as the first versio n of the form. he might not have so r eadily a ccepte d that the ha ndwriting was his. Th e le tt er "M " in the word " Month s'' 1s d1fferen1 to e very oth er "M'' in the sections alle ged to have been co mpleted by the appli can t. So to is the letter "N" . No ne of that matters very much . It s eems to me to be tolera bl y cl edf that the parties did not intend to be lega lly bou nd by the terms of the document "e mployee de tails". It w as• doa.imenl draw n up f or the e mployer 's a dtruniStrative purposes on ly. Ind eed, the cucu mstan ces that Mr Ei sic lc chose unilaterall y 10 lo w er the fi gur e in serted ne xt to the he ading "sal ary/wa ges" su pportS the inference that he did not consider term., o f the unsigned document to be bindin g upon the r e sponde nt. In the circu msta n ces d escn bcd I am n oc pc- e pared to tre at the doa.tment as for nung part o f a b undle o f d ocum en ts constituting the contract. 23 April, 1999 QUEENSLAND GOVERNMENT I NDUSTRIAL GAZETTE 317 In m vie w the term, of tile contra ct ar e the tenns o f t he g enutnc let ter of 7 Sept e mber 1998. Th e a pph cant was no_t a probatio nary e mployee. No ob:ii o nary term had b e en dete rmined prior to and co ntemporaneous ly with the makin g of th e co ntract. _In the pr e nu Se$ , s. 216 (5) of_the Wo rkpw_c; ~elations Acr 1997 and s. 34 (2)(a){i) o f the Workplt,ce Relatio11s R egulation 1997 do not exclude the appli cant , fro m '.h e ope_rat,on of chapter 5, parts and 3 of the Wo rlcpla ce Relatiot1 s Act 1997. I di~mi s~ the respo nde nt 's apphc 4 tion that the matter be s uuck out. !'he matter wi ll go to a confer ence. I reserv e the question of costs. Dated thi< eighth d ay o f Ape-ii , 1999. D.R. HA LL, Chi ef Indu strial Co mmission er. Appearcm as: - _ Mr D. Royds of Th o mson and Ro yds Solicitors for the applicant. Ms T Fa nlln of M O£Tow a nd A ssociat es Soli ci tors foe the respo nd e nt. Re leased · 8 April 1999 ######################################################################################11-################################ffl# -- 2 of 2 --