Boyle v Remola Music Pty Ltd t/a Cosmic Music [1999] ICQ 75 (1999) 161 QGIG 202

202 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 July, 1999 ########################################################################################################################### QUEENSLAND INDUSTRIAL COURT Workplace Relarions Acr 1997 - s . 360(2) - appeal from decision of industrial commission Linda Boyle AND Remola Mu.'iic l't)' Ltd I/a Cosmic Music (No. C62 of 1998) JUSTICE MOYNJHAi"I, ACTING PRESIDENT JUDGMENT 21 June 1999 The appellant, allegrng that she was unlawfully dismis.-;ed, applied to the Commission under Chapter 5, Part 2 of the Workplace Relariorr$ Acr 1997 ("the Act"). She now appeals againsl the dismissal of the application. '!be circumstances of her dismis sal are as follows: A young woman who was seeking employment left her resume at the respondent·s pr emises where the appellant was eJllployed as a casual shop assistant. The resume was not addressed to any particular person or officer, was not marked as confidential and was left at the premises of a number of prospective employers. It may, however, be accepted that it was intended by the young woman who lodg ed it that the resume was lodged for the purpose of seeking employment and not for any other purpose. A fellow e mployee of the appe.Jlant was reading the resume when the appellant re1urne d from lunch. The fellow employee drew ii to 1he attention of 1he appellant saying that .. This girl would gel on really well with you and P aul, she's intereste d in theatre''. The appellant read the re5ume, 100k it home thal night and contacte d the young woman. She did so bec ause of a common inte rest ,n theatre and 10 rais e with the you ng woman 1he pr ospect of engagrng in network marketing to supplement income, as the appellant did, to support her interest in theatre. The young woman was not mterested but she and her mother were co ncerned about the approach and raised their concerns wilh the appellan1's e mploye r as a consequence of which the appella111's employment was terminated w11hout notice or pay in lieu. The appellaJll had been employed by 1he r espondent for over five years and the Commission described her as a Joyal and dedicated employee. The director who terminated the appellant's employment gave evidence that he believed that employees were aware of the procedures to be followed 111 dealing with resumes. There were, however, no written instructions a nd the evidence suggests a ha phazard approach. Resumes handed in at the front counter were not treated in a consistent manner. There was no evidence that the appellant had been given 1nstruc t1ons. The employee who drew the appellanl's attention 10 the resume and made it available to her was described as being in chai-ge of 1he from coumer and as having a role in '•hiring and firing", although she was not involve d in the termination of the appellan1's employment. The Commission was unimpressed by the Director of Cosmic Mus ic's evidenc e, speaking of inconsistencies and assump1ions, failure to address industrial matters in an appropriate manner and limited knowledge of contemporary workplace relations. ·nie Commission spoke of the level of procedural fairness at the appellam's termination interview being ..questionable" but as satisfying the provisions of the Act. apparently because the appellant was given a reason for the dismissal and that "as . �uch 1he dismissal was justified and fairness was extended". The appellant's action m contacting the young woman and using the information in t he resume to canvass matters other than the r espondent's business understandably le d to the young woman and her mother becoming concerned and raising those concerns with the respondent. ·niere is no evidenc e founding a conclusion tha1 either 1he young woman or the respondent suffered any harm as a conseque nce of lhe appellant's acl. There is 110 doubt !hat ii was a misjudgment on 1he appellanl's pan. When, however, one takes into account her work history, the circu mstances in which the contems of the re .<ume were drawn to her attention, the absence of a procedure 10 be followed in dealing with resum es. the appellant's mo tive in contacting the young woman and the other facts adhered to the appellant's conduct does no1 co nsti1t11e misconduct founding dismissal. No doub1 it provided an occasion for the respondem to put in place proc edures to deal with applications and to instruct employees, including the appellant, io them. The appellant's conduct 2 July, 1999] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 203 was no1 however capable of constituting conduct so "seriously in breach ... that by the standards of fairness and justice the employer s hould not be bound to continue the employment"; North v Television Corporarion /Jd (1976) J l ALR 599 al 608. The c onduct was not such as 10 amount to a wrongful act incoru1.;-ten1 not only with the obligation of the employer but with the cominuous confidence between them; see Sinclair v Neighbour (1967) 2 Q.B.279. The considerations I have canvassed found a conclusion that the appellant's dismissal was unreasonable in the circums tanc es, harsh and unjust and consequently unlawful. Having regard to the nature of the appellant's employment and that it is now almost two years since the termination, reinStatement would seem to be inappropriate and I understand it not to have been seriously cont ended for. The appellaOI, having regard to the period of her service, was entitle d to a minimum period of notic e of four weeks. As pr eviously indic ated, she receive d non e and no payment in lieu was made. lt was submilled for the appellant that she should be awarde d the maximum amount of compensation provided for by s . 222(3)(a)(ii) of the Act. I am no1 persuade d Lo do so . Having regard to the circumstances, which I will not repeat, in my view the appropriate remedy is to order the respondent to pay the appellant an amount the equivalent of the minimum retail shop assistant's award wage applicable for persons of21 years of age or older at the time of her dismissal for the period of four months. The appellant sought an order purs uanl to s. 2 25(1)(b) of the Act which provides that the Commission may order a party to an a pplication to r emedy unlawful dismissal to pay costs incurred by the other party if satisfied that 1hat party caused costs to be incurred because of an unreasonable act or omission connected with the conduct of the applic ation. It is true thal the Commission wa s critical of !he respondenl because of deficient discovery and inadequate communicalion with it's advocate and that the case before the Commission was adjourned 10 enable investigation and c orrection of some apparent inaccuracies. The application which is now made, however, was no t made before the Commission and the CommissJOn made no finding of any costs wluch might have been incurred by dela y. In my view it is now too late to raise the issue. So far as the costs of the appeal are concerned, the case is one which turned on the application of well se ttled legal principles to the conclusions reached by the Commissiou on the evidence bef(){e iL It was not a case of any .. apparent •industrial' consequence of wider ramification"; Toowoomba City Council v Shawnberg (1996) 153 QGIG 541 at p . 542. The respondent should pay the appellant's costs of the appeal. If the parties cannot agree on the calculation of compensation, the matter can be r e-liste d for it to be determined. Dated this tw enty-first day of June, 1999. M.P. MOYNJIJAN. Acting President. Released: 21 June 1999 Appearances:- Ms S.T. Armitage (instructe d by Hardings Lawyers) for the Appellant. Mr K.F. Watson (instructed by Freehill Holliugdale and Page) for the Respondent. ########################################################################################################################### II -- 1 of 1 --