Coxeter v Revamp Pty Ltd [1998] QIRC 103 (1998) 157 QGIG 201

200 QUEENSLAND GOVERNMENT lNDUSTRIAL GAZETTE 20 March, 1998 T 20 March, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZE'ITE 201 ########################################################## QUEENSLAND INDlJSTRJAL RELATIONS CO\-lMISSION Workplace Relation.\' Art /997 s. 218- applica1inn for reins1a1emenl Michelle Coxela AND Revamp Ply Lid (N<, . 81742 of l997j C0\1.\11SSIO:--JER EOWARDS 4 March 1998 Termination of Employment - l)1.<mi.s.<al - Rcinstatc:mcnl - Evidence - Pregnant - In-House Publication - W,>rking Environment - Har:�ssmcn1 - Humiliation - DistTimination - Dismissal i l arsh, linjust and linreasonallk- Compen.<ation Award�d - Costs Awarded. · DECISIO'-i This is an applicalion hy Mtchdk Coxe1er under 1he prrwision., of the. Workplace Re/atiori.< Act /997. Mr Conway Stcn.<ne.�,. CEO of the Revamp group of companies rep(e.<cmed the respondent (R�,·anip). \-lr Strnsncss appeared and gave evidence in Ca.,es B616 and B 1349 of 1994, Armie Pme 1•. Coral Print Pty /J.d /trading a.,· Rnamp) 152 QGIG 185-188. So he ii lhe Commis.sion wa., con.scious of 1he comnients of th,! Pr�sidcnl in Ra\'mond Dii>I> v . Avco Fmancial Services l,Jd (156 QGIG 530-534). The applicant conunena:,d work with R�vamp in .\1ardt 1997 as a make-up artist. On or ahoui 9 S�ptemh�t 1997 she lefl Revamp after hdng spoken to by Mr Stensness. Revamp 1s a photographic s1udio which phOlographs client, in dtent chosen settings using a wid� rang< of p<>ses and outfit.�. Ms Coxeter is a qualified make-up artist and co.<me1ician. Prtor 10 moving to the Gold Coa,t she had worked in Bnsh:,ne with a numhcr of repu1able pholographers including an a.�ocia1ion with Grand Orhit doing fa.shion parade,� together wi1h professional dancers, actre.<se.s and model.<. Her du1ies includ�d lhe pNpara1ion of clicn1.s for phmographic .session.<. She wa.s employed hy the Company under an award of the Commission. The: na1ure of her working arrangemcnL< could not place her in lhc ca1egory of a casual emp lo yec. In the early part of Augusl 1997 she informed her e mployer that she w,1s pregnant. Soon af1c.r a puhlicalion entitled "Revamp Rag" was faxed 10 all the Company .siores. A copy was no1 1endered during the hearing hlll from 1he. evicknce. including 1ha1 of Mr S1ensne<.< 1he Commission accep1s 1he fax wa,s sent with words along the following line.,:- ••Michelle Coxetcr from Aus1ralia Fair i.s up the duff and has a hun in the oven. Now .,he IHLS go.id use for 1hosc hig bosom< of her.s''. The. applicant ad,•ised in evi1fonce 1hat the fax wa, read out in frnm of clients and 01hcr .<tall memher.s. Mr Sten.<nes., attc:mpted 1,) j11.stify the terminology hy the fact that such words an, common place in hi.< organisa1ion and the u.<e of 111.;se words in a "tongue and check" in-hou.se cirmlar is accep1able. In evidcnre he indicated that h;, made commcrn alonl! those lines lo the applicant prior 10 V.'l'iling lh<: fax. Be suggcs1ed 1ha1 ;tny terminology u.sed wa, also "tongue in cheek". 'vlr S1.en.me.,s advi.sed tha1 .similar words wae commonly used in the studio and were not for puhlic 1nforma1inn. In con1ra.s1 M.s Nikiforides in evidence advi.sed that at the time she did nn1 know 1he me aning of "up the duff''. If ,11ch languag� was .so commonly used in the '1udio 1he Commis,:ion is of the belief that Ms Nik1forkk.<, who i.s curr..;ntly a s1ut1cnl. would have h,:cnme aware of i1.s meaning. She acccp1ed 1ha1 the Revamp Rag i.s a humor0us, informal ocw.sletter, basically a fun document. In regard 10 ava1lahili1y she indicated 1ha1 she had re.ad ii oul in fron1 of memhcr.< of 1he puhlic. In evidence and .suhmission.s, Mr St�nsness emphasi,cd 1h e fac1 1ha1 'vl.s Cox-,11Jr had inconYenienced clie nt, and had acted in a way which was 1101 in the best interests of the husine.�.,. The most significant fact of the application is the working environrne.m together with 1h., use of krminologies which Mr S1ensnc.s.s .so pe(.uliarly de.scrihed a< fun. 'lhe Comnus.sion acknowledges that during the hcarin� no suhm.1�·$ion,,;; or ded�ion.t: wer<.! knd�r<J of any procedures or guidelines adop(.:d hy the Contp.rny lo addrc,ss diKTiminalory or hara,'\,"illl<;:nt is...;ucs. In regard to 01hcr workplace policies ',,fr S!ensn\l.<s indicated that he had an ongoing prohkm with a numhcr of a.,pccLs of the applicant's dress including short drc.,se.,, hare midriff dC. The Company reyuired .s1aff to he styli.sh and presentable. He aim made rd'ercncc lO the age of her do1hcs 10gc1hcr with .specific dis cu.s.sions regarding lhe 1ypc of clothe.< .she wor�. Copy of the production feedhack form w;�< 1endcred a., Exh1b1l 2. Such do ,.:u1ncnt was not signed hy the: appli0anc and no r�fr·.rcn<.:e was made 10 the rea<on for 1he lack of signature. �r Stcnsnes.s sugge,<tcd he w;t< unable to provide a copy of !he form Iv \-1.s Cox,1er al lhc alleg"d lime (if in1crvicw a., it took lim" to complete.. M.< C. Ry,tn, Sak:s Manager outlined that a meeting of all s1aff was hdd at whid1 time reference was mad< to 1hc irnportanc" of s1yli,h hut not revealtng clothes. The evidence of \-1.< Ry,rn n,lalcd to general aspects of the employment. She was 1101 presen t al lhc time of 1hc scpara11011 bu1 .,h� h,,d .<pok-,n lo slaff ahou1 dre.<s. In her efforts Ill upgrade the ,1atu.< of the Comp,u1y she. was ,lllcmpting lo pu1 greakr focu., on lhll diem ra1her 1han ence>urage the .<laff 10 wear dolhcs whirh may nc� he foll,lwing the goal.< of lhe Company. In evidence, Ms ;s;ikiforides indica1<,d tha1 ,he was present whe.n ,1aff were infonncd ahoul dre.<.< policies and she also had .spoklln lv 1he applicani on a numhcr of occasions ahnul such policic.<. The Conunis.sion acknowledgt:.< the nature of 1hc: hu.<inc-'' and irom the cYidencc has an understandi ng of 1hc inten1ion.< of th� dic:nt< however 1hc work environment mus1 he such 1ha1 employees c an undertake 1heir duties free from hara,sm,mt and humiliation. As a professional make-up artist Ms Coxelcr performed a vay re.<pon.sihlc posi1ion and ii'om her evidence has worked for profe1<sional per.sons of high standing in the community. On 1h� day of the .scparalion �r S1cn.<ncss indica1cd 1ha1 af1.r hi.< di.<cu.ssion wilh the applicant ah,,ul dr�s.< and nthe.r mallcr.s she kll her "mployn'>«nt. He helie,·ed .<he had ahandon�d h<!r "mplo;•men1 and he mad�. no dfort 10 cont.act her 10 a.«xnain if ,tac would he re1urning 10 work even 1ho11gh .<he had made ,ffort.s to conta<::1 Company pcr.sonnel. There is no douhl Ms Cvxe1a is well regarded in her profession as a make-up arw,1. The Conipany had no prohlem with her work but had concern:-: ahout her drc.s.s. Th<: Cornrni:--.<.ion d�x:s not acccp, the �,:id�nc.� of 26174_1.0OC -- 1 of 2 -- -- 202 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 March, 1998 Mr Sten snc.<.s. Ms Ryan and 'As Nikiforide., 1ha1 they cxpre.ssed concern.< about dress during 1hc period of crnploymen1 10 !he same kvcl of emphasis as they did when giving evidence befor e 1his 1rib,mal. The written production fretlhack form was nOI $igm,d hy the applicant and \.1r S1ensness had not compkled t he form at the time of inte rview. The 01h�r interview between Ms Ryan an d the applk:a/ll was not recorded. Ms Coxeter W<L< embarrassed, humiliated an d extremel)' upset by the conten t of the. puhlic:,tion "Revamp Rag". In a contemporary workplace environment it is acknowledged that humour can he ··fun" when used with . <inwrity and integrity a.s an effective team huilding tool. The Commission daes not accep4 that 1he terminology used in the ··Revamp Rag" is within the meaning of the word ••fun". Employees should he ahle to work confidently and si netrdy without heing suhjectcd to degrading sexist and inappropriate c.x>mmc.nts. Th<> Commission accepts that the applicant would he humiliat ed hy the action. When the respom1ent spoke with her on or about 9 Septemher 1997 it is understa ndable that ',,Is Coxeter W<LS up.set. Whether she was dismissed or kft she wa.1 entitled to he, frustrat ed by �eh an attitude. :--;u per.son is required to .suhjcct oneself lo humiliation . Obviously a diem would he inconvcni<ln<.-ed hy the circum<tanc<!.s hu t I have no douht t hat the clients wen, not advis-,d of the humiliation and harassment to which the applicant had heen subj,:c1cd. 'Vis Coxc1er was completely ju.<t ifi�d in leaving her position wi1h the Company. After being de.scribed in a s.;xist and dernc:an.ing way she would have heen justified in leaving he r wor k "' . snon .is the "Rt vamp Rag" was rclea.-...:ti. The Commiss11m has revi<c:wed and given thorough consideration 1,i all of the "vidence. suhmi.,.sion.s an d material ,uhmitlt'd and det�rrr,incs 1ha1 1he dismissdl is har:,h. unju:-:1 (ind unn:asonablt:. The (:{lnmli.'-."-ion i., �aus{k:d that rcin:�1a1c;n,�nl in rh:..· circun-1.�tanc�:,; i� not appropriate. Section 222 (3) of 1h" Workplau Rl'la1irms Ao /997 s1a1cs:- ··p) When deciding the amount of <'l>mpensat ion pay:,hle under sulm,ction ( l)(h). the "omm,.ssion - (a) mus, not award an amount 1hat i., more than - (i) if the �mployec i.s n(){ employed Un<.kr an indu,ir,al rn.,1nimcnl, industrial agrt!�mt>:nt .,,, EFA - the. lcs�c-.r of tht.> remuneration und<.:r �uhp<1ra�raph (1i) ancl an amoum presmh�d under a rt.'gulatic:1n: or (i1) odll�nvi<;� - lhe rc:muneratinn lh� employer would have hccn liahk t(> pay the employee for the 6 month., unn�diatdy aft er 1hc dismi,�<al, paid al the rate the cmployc� received immediately hdore the d1.sm1.s�aJ: and (h) may take into ,,ccnunt any amL>unt paid to the ,mploye.: hy or for the em ployer nn the di.<m issal.". From the ,;ubmis.sion. , nf Mr ()' Brien the :1ppliurn 1 received a weekly wage of S:D0,00. The Cnmmi.s.sion <kt ern11nt.s that on 1h1s <x:casion the maxim um allowat->le i!< $7926.00 le,, in<:nme .<h<· received from other murce.s whi<;h amounted to S:i00.00 per month for a four month p,,riod. totalling $20()().00, The parti".s did no1 prnvi,k the ( 'onunis,<ion with any c:ase precedent.,. J\s su,:h the Comnli.ssion h,<< had r�gard to Chr.11ery ,.. Klemzi x Nursing /-lmn.: ( 1988) 55 SA IR 544, 551-2 and suhs«1ue.m <.'ase.s. On c<>n$1,kra1ion o f <111 ,uch fa\:lor� the CClmmj.s.,ion on1a.< the respondent Comp:wy t(> pay an am<>unt of $5926.00 10 \,1., Coxe1cr wi1hin 21 day.s of wday·, d<1tc. If r�11uircd Iha applirnn1 ,hould �ont act the ln du.<irial Regi,1rnr for issue of a Certificate und�r s. 355 of the Workp/aa Relafiom Ac1 1997. Section 225 of the Workplace Rda1io11s AN 19</7 .<late,:- ··(J l The commi.ss1on may order a party t<> an application und�r section 218 to pay costs in curred l>y ;,noth�r part)' if .sa1isfied the party- (a) m::..dc. the applic1tion frivolou:-:ly. vcxMiou;-;ly or without ret.tsonahle cau,._l�; or (h) caused co,<L< to be incurred by lhc Other party hecaus e of an unreasonable ac4 or onu.ssion connected with •he conduct of the application. (3) In this section - ·cosLf includes legal and professional co;1s and disbursements and wirne s .s expenses, whether or not the C(>mmi�•ion has c·ertificd un der section 350.". In lalher v. l.,ucas155 QGIG 1058, the Pre . siden1 st ated :- "Jn my more recen i decision of Toowoomba Ciry Cou11cil "· Schaumberg 1.53 QGIG 54/, I .sough1 to 'free-up' somewhat the discretionary approach to this matter. What we have. 10 rememher is that there is an unfettered statutory discretion to be exercised. Although I respect lhe traditional approach with re lation to truly industrial matters, I am yuite firmly of the mind that many of these reinstatement cases are. much more akin to ordinary party and party litigation, and that those who engage in them mu.<t not be surpr ised if a more traditiona l approach to the awarding of CO$'l� is taken.''. The applicant wa, rnprcscnted by \1r P. O'Brien of O'Brien and A�sociates instruc'led hy Smith Whiteh<c:ad Morwood Payne. S olicitors. The Commission is . satisfit:d thal c-crtification in accordance with sec1ion 350 c()vering lh<! appoimmen t of an agent with in .s1ruction.< i.s appropriate an d 1he Commi,sion order., accordingly. The followin g figures were suhmiued by O'Brien and Associates:- I. F"e on brief -in st ructi<,ns 10 sue 2. Preparation 3. Trial (2 day.s - minimum 2 hour.< per day) TOTAL $ 383.70 961.00 821.00 $2165 70 In assessing co.sl, th<! Commission has used the Magis1ra1es Courts Scale as a guidt: together with discr.:tion to cover co.sLs, prtp�ralion. in . ,1ructions and a.,.so,iatcd fee,. I direct the. respondent Company 10 p;1y to Ms Michelle ('oxct�r co,st, amounting to $2165.70 within 21 days of the date of this dccisil)O. The Commission order.< accurdingl)'. K.I.. EDWARDS, Conun ission er. Mr P. o·Brien of o· Brien aod A�sodates (in stru<.1c,I hy SmJlh Whitehead \,forwood Payne) on hehalf of 1he applicant. \.1r C. Sten.sn.;s.;: of Revamp Pty l..td on behalfof the respon dent. Operative Date: -:-tA Dccisi<>n - Rei11sta1cme n1 Rckased: 4 \fareh 1998 20 March, 1998QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 203 -- 2 of 2 --