Doolah v Rampling Enterprises Pty Ltd, t/a Freshwater Chicken Takeaway and Chicken House [1995] QIRC 647 (1995) 150 QGIG 1499

1498 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [1 De cember, 1995 i I j 1 December, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1499 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Ac/ 1990 s. 295 - appli cation for reinstatement Jan ice Shere ll e Doolah AND Rampling Enterprises Pty Ltd, t/a Freshwater Chicken Takeaway and Chicken Hou se (No. 8821 of 1995) COMM ISSIONER SWAN 2 1 Novem be r 1995 Applica ti on for reinstatement - Ex Parte Proceedin gs - Respondent present and legally represented at initial conference - Contact made with Director of Respon de nt Company du ring course of proceedings - All relevant parties aware of Hearing - Extension of T ime for Application Granted - Applicant working in excess of Sixty hou rs per week - Remunerat ion be low Award rates - Applicant recorded as Director of Company for brief period - N<> Director 's fees paid - No shares held by Applicant in Company - Applican t seriously assaulted - Respondent Com mitted Suicide - Appl icant Hospitalised - Applicant's employment tenninated Whilst in Hospital - Records of Employment show applicant working Three hours per day - Records were a fa lsification by employer - Applicant receiv ing Family Allowance Supplement - No Valid Reason fo r Dismissa l - Exceptiona ll y harsh manner of dismissal - Reinstatement im practicable - Costs awarded - Compensation awarded. DECISION The app licant in this mailer, Ms J Doolah seeks relief from the Queensland Industrial Relations Commission (QJRC) for her a ll egedly harsh and unfa ir dismissal from her employment as Shop Manager with Rampling Enterprises Pty Ltd trading as Freshwater Takeaway and Chicken House care of Mill Partners, Chartered Accountants, Suite 4, Le vel 2, Tr inity Wharf Complex, Wharf Street, Caims. Th is matter entails a consideration of a series of ev ents which can only be described as unfortunate and unusual. The first issue relates to the fact that the matter was heard ex parte. The circu mstances surrounding the non-appearance of the respondent are as foll<>ws: - The respon de nt was represented at the initia l Conciliation Conference held before the QIRC. The matter remained unresolved as a result of that Conference and it was set dov,m for hearing in Caims by Chief Commissioner Hall at a Call-Over Hearing. Prior to the notification of the withdrawal of the Solicitors for the respondent on 25 October J 995, Service for an Order for Application fo r Discovery had been served on those Solicitors on 23 October 1995. Ch ief Commissioner Hall had accepted that effective service of the proceedings had taken place on that date to the agent of the respondent. Around this time, the Commission was info nned that a Director of the respondent Company, Mr Darren Mill had resigned his Directorship of the Company on 20 October 1995. It was the be lief o f the Commission that the remain ing Di rector was a Ms S Rampling, however. the Commission was unable t<> ascerta in the identity of the rep lacement Direct<>r o f the Co mp any. Telstra advised that Ms S Rampli ng had a si lent telep hone lis ti ng. During the course of the hearing, the Commiss ion (as currently constituted) made cont act with M r Darren Mill (the previous Director of the Company) to advise him that he was being adversely commented upon during the hearing and to invite h im to present himself at the hearing to discuss his role in the events wh ich had occurred The Commission was also aware that Mr Mill had attended the first compulsory conference before the Commission and was aware of the allegations be ing made against h im by the applicant. Mr Mill ad vi sed the Commission (as currently constituted) that he was aware that the Cairns hearing was in progress and that he had discussed the maller with h is So li citor (as advised by the Commission) but that he did not wish to be involved in the proceedings. He stated that if there was any adverse commentary made about him, he wou ld attempt to rectify that in other proceedings. The Commission did not explore the matter any further with him. Before detennining to hear the matter ex parte, I had satisfied myself that a ll relevant part ies had been made aware of the application and the fact that it had been scheduled for hearing in Cairns on a particular date. I a lso determined that it was in the pub lic inte rest that the matter proceed. The fact that the respondent chose ne it her to present itself at the hearing nor lo make co ntact with the Commission to expla in i ts position. is a matter that rests solely with the respondent. The Commission cou ld do little more to assist. Extensio n of Time Applicati on The first point for consideration is whether an Extension of Time should be gran ted to the applicant for the hearing of this matter. The application for relief was lodged with the Registry of the QIRC on 11 May 1995. Termination of employment occurred on 17 April 1995. The reason for the delay relates to the fact that the app li can t was in hospital at the time of her dism issa l suffering from stab wounds inflicted by her fonner im mediate employer. These 17261_1.DOC --- -- 1 of 3 -- 1500 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ l December, 1995 injuries were of a serious nature and the applicant states that upon partly regaining her health, she sought to make a claim of unfair dismissal against the respondent Company. After observing the applicant giving evidence (with her injuries clearly visible) and accepting the fact that she had undergone serious trauma which disabled her to the point where she would have been unable to have made a claim at that time, I have little difficulty in applying the test generally outlined in [!/owski v Miller ( 1968) SASR 277 to these set of circumstances. In accordance with the comments of Bray CJ in that decision, I am satisfied that the length of delay experienced by the applicant in making formal application for reinstatement was minimal: that the explanation for the delay in making such application is credible; that the hardship to the applicant were the matter to be dismissed is obvious; and that there were no submissions made as to any perceived prejudice to the respondent were the matter to proceed. I therefore propose to grant the Extension of Time application and order accordingly. RcinstatemeniAJm!.ication The applicant seeks relief from the Commission for her allegedly unfair and unlawful termination of employment. The circumstances surrounding this matter are tragic as well as being most unusual. Ms Doolah, aged 29 years. is the mother of four young children. Ms Doolah has been divorced from her ex-husband for a period of some two years. Mrs Doolah states that she has only occasionally received maintenance payments from her ex-husband because she has difficulty in locating his whereabouts. The direct employer of Ms Doolah was Mr Ra111pling, with whom Ms Doolah had a relationship which had extended from early 1992. Ms Doolah had known Mr Rampling, us a friend. for some ten years prior to the forming of a special relationship with him in 1992. In early 1993, Mr Rampling had asked Ms Doolah to work at his shop. Initially the working relationship was on a casual basis with Ms Doolah working some 3-4 hours on a Friday or Saturday evening. In April 1993, Ms Doolah commenl.'.ed full-time duties at the shop. For such fuli-time work, Ms Doolah was paid $139.50 per week. Ms Doolah claims she was working in excess of 60 hours per week on a set basis. Ms Doolah also cited occasions where she received only $100.00 per week, for the same hours, when the shop didn't make as much money. Her working week started at 8.00 am and finished at 8.00 pm. except on Fridays, Saturdays and Sundays when she worked from 8.00 am to 9.00 pm. From Monday to Friday, Ms Doolah was pennitted to take time off from 2.00 pm to 5.00 pm in which to see her children. Work continued in this fashion until February 1994 when Ms Doolah and Mr Rampling started to argue about different matters. At this time, Ms Dool ah left the employ of Mr Ramp ling fo:- a period of six weeks because "Max Rarnpling had slapped me across the face in the shop and I had decided tltat enough wa-; enough and left". Upon returning to \vork for Mr Rumpling and atler a considerable period of time, 111 August 1994. Mr Ramp ling formed a Company "Rampling Enterprises Pty Ltd". At that point in time. \1:; Doolah was paid $179.35 per week for her services. She was working the same set hours as previously. For a short period of time Ms Doolah was recorded as being a Director or the Company hut was removed from her Directorship on 15 March 1995. Mr Darren Mill had explained to Ms Doolah why she had been asked to sign documents regarding a Directorship but she states that Mr Mill told her that her duties were no different. In fact, there were no noted changes in her employment situation as a result of this Directorship except that her wage rate progressed to $179.35 per week. Notwithstanding this Directorship, Ms Doolah did not receive any Director's fees nor did she hold any shares in the Company. I believe .\1s Doolah's submissions in that she remained an employee of the Company during this short period of time. Ms Doolah, in response to a question from the Bench, stated that she was not aware of Award conditions and had never been appraised of her employment entitlements by anyone. During the period of her six week break from employment, Ms Doolah had spoken to an Industrial Inspector regarding her work situation primarily enquiring aspects of holiday pay. To her way of thinking, Ms Doolah resolved the issue of non-payment of these entitlements by returning to work with Mr Rampling. Apart from the six week period in question, .\1s Ooolah never took, nor was granted, any time-off as holidays. On 12 April, 1995 an incident occurred at the home of Ms Doolah as the result of an argument instigated by Mr Rampling which had commenced at work. Ms Doolah was stabbed in her back and her throat was slashed by Mr Rampling. Mr Rampling then left Ms Doolah's house and subsequelltly committed suicide. The injuries suffered by Ms Doolah included a punctured lung and a wound to the neck which is approximately I O inches long. Three sensory nerves to the neck were also severed. After an operation and some time in intensive care at the hospital, Ms Doolah was removed lo a hospital ward where she remained for eight days. It was only at that time !hat Ms Doolah was advised that Mr Rumpling had killed himself. Whilst still in hospital. Ms Doolah was visited by Mr Darren Mill who at that time was a Director of Rampling Enterprises Pty I ,td. Ms Doolah states that he explained that the shop had been closed since Mr Rampling had died He then said words to the effect. "We have decided to re-open the shop and have persuaded Tammy and Lisa to go back to work as Managers. Yuu will not be required hack there". l Jpon hearing this news, Ms Doolah states she became exceptionally distressed and that after leaving hospital, she again contacted Mr Mill to see if he would review her situation, but to no avail. The above represents the evidence of the applicant in this matter. Having observed the witness giving evidence, the impression gained by the Commission is that Ms Doolah was truthful in her statements. She is clearly still enormously distressed by her ordeal but states that she had enjoyed her job and initially would have experienced little difficulty in returning to that place of work when her health had improved. It should be made clear that the Commission makes no comment upon the incident which occurred at Ms Doolah's home when she was physically assaulted by Mr Rumpling. While Mr Rampling was her immediate employer, lhe personal arrangement Ms Doolah and \1r Rampling had entered into was, as 111uch as it could be, a private matter and somewhat divorced from the workplace. What is relevant is the manner in which Mr Mill chose to dismiss tvls Doolah. It should be noted that it was as a result of the tenor of this evidence that the Commission sought to personally make contact with Mr Mill to ask if he wished to be heard in this hearing. In the absence of any material to the contrary. and based upon my perception of Ms Doolah and her evidence, it seems clear that Ms Doolah was a good employee. I believe her statement that she had enjoycd her job certainly if the hours she had worked were any 1726U.DOC 1 December, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1501 indication, she either enjoyed her job or felt compelled to work those hours for whatever reason. The strong impression I gained during the course of this hearing was that Ms Doolah was a reserved, naive and vulnerable woman, who, notwithstanding her relationship with her employer, was mostly ignorant of any rights she may possess as an employee. Further evidence, which will be detailed later in this decision, suggests that Ms Doolah was badly treated in her employment relationship in terms of her wages and conditions. In tenns of the money received by Ms Doolah each week, the records of the Company show that Ms Doolah was only working for three hours per day. She states that Mr Rampling insisted on this method of record so that he was mdy required tu pay her $139.50 per week. At the time, however, I believe that Ms Doolah was unaware that any wrongdoing had occurred. She states that in fact she worked the hours she specified. Ms Doolah was permitted the use of the work car (which was used by Mr Rampling during the day) in her spare time (which in itself was minimal in that she worked every day). There is evidence before the Commission showing that some Superannuation payments were made on behaif of Ms Doolah these payments appear to have been made in one lump sum in 1995 and covered a considerable period of time. Further information elicited showed that Ms Doolah, whilst in the employ of Rampling Enterprises Pty Ltd received a Family Allowance Supplement of $125.00 per week. Ms Doolah believed that she was receiving this amount legitimately because she was a "low income earner" and that her employer was aware that these payments were being made. Jn all, Ms Doolah received an amount of $304.35 in the hand each week. The Solicitor for the applicant stated that the employer did not have a "valid reason" for dismissing Ms Doolah. Reference was made to the Industrial Relations Act 1990 (the Act) and particularly to sections 291(1) and 291(2)(a). As well, reference was made to s. 291(2)(b)(i) of the Act which states that a reason is not valid if it relates to "temporary absence from work because of illness or injury (other than an injury within the meaning of Division 6 )". From a consideration of the material put befi.)re me. I have determined that the employer did not have a valid reason for dismissing Ms Doolah. I believe that the employer breached the aforementioned sections of the Act. The actions of Mr Mill in dismissing Ms Doolah in the manner in which he did is exceptionally harsh. It was put to me by the applicant's Solicitor that had Mr Mill, afler the event, reflected upon his actions and had sought to reconsider the situation, the matter could have been resolved amicably. This did not occur, even after the matter had gone before the QIRC by way of a conciliation conference. As well, l am conscious of the fact that an adverse inference could be drawn against Mr Mill (a previous Director and Accountant) in that it is probable that he was well aware of the ·'scam" that was being perpetrated at this particular workplace with regard to Ms Doolah. I do not believe that Ms Doolah knowingly acquiesced to this situation but. through ignorance, was exploited by her employers. It seems trite to add that Mr Mill could have rebutted these asse11ions and allegations had he so desired. As well. the same applies to the current Director of the Company. Ms S Rmnpling. Having detennined that the employer· s actions \\ere ''exceptionally harsh", 1 must now give consideration to the relief which might be awarded to Ms Doolah. The Act permits me to award Ms Doolah compensation. I have considered this course of action because I believe that reinstatement would be "impracticable" u11der these circumstances (see s. 297). Since leavine: hospital, Ms Doolah has been physically and emotionally distressed. She is required to regularly visit physiotherapists, doctors. counsellors etc and has only recently recommenced work on 3 October 1995, out of necessity. The applicant states that she is still trying to come to terms with all that had happened to her, together with the added factor of losing her job. Jn determining to award Ms Doolah compensation, I am conscious of the requirements of s. 297 of the Act. I believe that Ms Doolah should have been employed under the provisions of the Cafe, Restaurant and Catering Awa1·d - State (Excluding South- East Queensland). It was put to me that the applicant should have been employed under the classification entitled "other cook". From a description of the work performed by the applicant, I am satisfied that Ms Doolah most comfortably sits under this classification, notwithstanding the fact that this employer appeared to call many of his employees ·'Managers". She was clearly underpaid for her services. The Act refers ins. 297(4) to ''Under subsection (2)(b), the amount of compensation must not be greater than the remuneration the employer would have been liable to pay the employee for the 6 months immediately following the dismissal, paid at the rate the employee received immediately before the dismissal" (Commission emphasis). The Collins Concise Dictionary defi11es "liable" as "legally obliged''. In considering this provision, I believe that the amount the employer was "liable" to have paid Ms Doolah far exceeds the amount she was receiving for the hours she had worked. Based upon all of the evidence presented to me in this case by the applicant's Solicitor and the applicant. I propose to award to Ms Doolah an amount of compensation equal to six mouths of what she would have earned had she been paid according to the appropriate Award classification. I am aware that in calculating this amount, the fact remains that I believe that Ms Doolah worked in excess of a normal working week (the Hours Clause in the Award cites a 40 hour week). This factor, however, would need to be pursued by the applicant before an Industrial Magistrate, if she so chooses. I say this because I had no specific submissions made on this point. In determining to make an order for compensation, l propose to "put the applicant in the same position (as nearly as can be done) as if the employee had not been dismissed" (see s. 297 of the Act). In this context, I note that Ms Doolah may be required to make adjustment to the amount ordered in this decision of Social Security payments she has received and other relevant receipts of money which might relate to the position she bas recently acquired. In determining the amount of' compensation, I have taken into account principles generally dealt with in Chenery v Klemzig Nursing Home (55 SAIR 545). I have received detailed submissions on the abovementioned factors and have calculated the gross amount of compensation to be paid to Ms Doolah at $9289.80. Social Security payments equal $4,137.50 and payments received by way of wages equal $576.00. I dctenninc to adjust the gross amount payable to Ms Doolah by subtracting the amount of the wages she has received from another employer. Therefore, the gross amount payable by the respondent Company to Ms Doolah equals $8.713.80. The applicant seeks costs against the respondent Company. propose to award costs. In this context, I am mindful of a decision of the President of the Industrial Relations Court. Mackenzie J in Roy Harold Goldman and Data General Australia Pty Ltd (144 QGIG 379). In relying upon the principles outlined in that decision, I am satisfied that the circumstances of this particular case were "abnormal" and "significantly out of the ordinary'', and that serious injustice would be experienced by the Applicant were it not for the awarding of costs. I believe that the requirements of s. ! 06 of the Industrial Rciations Act J990 have been satisfied in this regard. I believe that, in the special circumstances or this case. it was in the interests of justice that a Solicitor was heard in progressing the claim of the applicant and I so certify. (It should be noted that at the initial conciliation conference, the respondent was represented by a 17261_1.DOC -- 2 of 3 -- 1502 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ I December, 1995 So licitor) There is no question that the applicant has been unfairly and harsh ly treated by the respondent. In fact, this is a case where the man ner in which the applican t has been trealed is extraordinarily harsh. TI1e applicant has quantified her legal costs and. based upon the Magistrates ' Coun scale, the) equal an amount ofS3397.50. Both amounts, ie compensation and costs, which total S 12, 111 .30 are to be paid by the named respondent Company to the applicant. This Order is operative from the date of release of this decision, however, I will pennit the respondent Compan} a period of one week in which to make such paymen t. I order acrordmgl} . D.A. S WAN, Commissioner. Appearances :- Mr M Pe ters of Macdonnells Solicitors for the Applicant No appearance for the Respondent Company Operative Date: NIA Decision - Compensation Awarded Released: 2 1 November 1995 ####################################################### PU,t _l.DOC - l December, 19 95 ] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1503 -- 3 of 3 --