Butcher v Scanmaze Pty Ltd trading as Harvey World Travel, Tully [1993] QIRC 510 (1993) 144 QGIG 969

968 QUEENSLAND GO VERNMENT INDUST RIAL GAZETTE (24 December, 1993 24 December, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 969 ### # ################################################ QUEENSLAND INDUSTRIAL RELA TIONS COMM ISSION Indu strial Relations Act 1990 s. 174 - appl ication for rei nst areme nt Frances Anne Butcher AND Scanmaze Pty. Ltd. trading as Harvey Worl d Travel, Tully (No. 8289 of 1993) CLERICAL EMP LOYEE S AWARD - STATE COMMISSIONER BLOOMFIELD 10 December 1993 Termination of Emp loymen t - Dismi ssa l - Reinstatement - Manager of Travel Agency - Termination due to financial and economic circumstances - Se lection criteri a for Redundancy - Notice Period - Union Membership - Preference of Em pl oyment Termina ti on Change and Redundancy Provisions Consultation pri or to changes - Arbitrated Matter - Dismi ssa l was har sh, unjust and unreasonable - Re instatement ordered from date to be determined - A pp licant Pregnant - Choice to return to employment after birth of chi Id. DEC ISIO N This is an application by Ja m es O'Donnell on behalf of Frances Anne Bu tcher for he r re i nstatemen t as Offi ce Supervi sor wi th Scanmaze Pty. Ltd. tradi ng as Harvey World Travel, Tully. Mrs Butcher commenced em pl oyment on 7 January 1985 with Wandover Pty. Ltd., trad ing as Tully Realty, wo rking in both the rea l esta te and Harvey World Travel operations of that company. On 9 January 1989 her employment was transferred to W i ngs Travel as a travel con su ltant ra ther rhan as a cler k/recepti onist in rhe combined operations although she was sti ll paid by Tu lly Rea lty. On 31 Ma rc h 1991 ownership of Wings Travel changed to Scanmaze Pty. Ltd. and her services were transferred to that employer. On t he morning of Saturday 9 May 1993 Mrs Butcher's services we re term inated by payment of one week's pay in li eu of noti ce. Mr Don Tay lor (who represented Scan maze Pty. Ltd. trad ing as Harvey World Travel) accepted "the facr that you were there for eight and a-half years under the same umbrella of the sa me person" and that rhere was no di spu te that serv ice was regarded as con tinuous between Jan uary 1985 and May 1993. The employer's evidence was that it had te rmi nated M rs Butcher's servi ces because the travel agency was l os ing money and that it cou ld not affo rd to pay h er waies. This decision was sta ted to have been arrived at as a result ot a board m ee ti ng some one month pri or to the termi nation being communicated. The deci sion was also sa id to have been arri ved aI after considering other op ti ons 10 reduce costs wi th in the business - including the poss ible term ination oi other emplovees - with the decision being taken to termi n ate Mrs Butcher;s services ah ead of others, fo r a variety of reasons including:- • The level of Mrs Butcher' s salary ($600} compared to other staff • Verbal comments from clients about the wor k performance of M rs Butcher and her attitude towards them • The fac t that Mr and Mrs Don Tayl or found it difficu lt to wo rk wirh Mrs Butcher The Commi ss ion has found this a mos t difficu lt case 10 deal with. Mu ch of the material produced as "evidence" was immaterial to the proceedi ngs and served only to add seve ral layers of viewpoin t, assert ion and conjecture to what was already a confused set of "non-ag reed " fa<.1 S. From what h as been put 10 i t, the Commi ssion has been ab le to unravel the fol lowing as the history of this matter:- • M rs Butcher commenced employment in January 1985 as a clerk/recep ti onist with Wandover Pry . Ltd . - tr ad ing as Tul ly Realty - a company owned by Ken Tay l or who al so owned a travel agency known as Wi ngs Travel. M rs Bu tcher wo rk ed in both sides of the business. • In Ja nuary 1989 her servi ces we re ful ly t ra nsferred to W i ngs Travel as a travel con su ltant rather th an as a clerk/receptionist wi th Tully Rea lly, although she continued to be paid by Tully Realty. • O n 31 March 1991 ownership of the travel agency cha nged from Mr Ken Taylor to Scanmaze Pty. Ltd., a company owned by Mr and Mrs Don Tay lor's parent£. At about this time Mrs Butch er was the sen ior travel consu ltant. • Mr Do n Tay lor, alt ho ugh genera lly working in England on a full-time bas i s, regularly returned to Austral ia around September to prepare financi al and other da ta for h is parent's busi ness(es). • • • • • • At rhe time of his return around September 1991 M rs Butcher al erted him to the fac t that the then m anageress of W ings Travel Tully was planning to open her ow n agency in lnnisfail. So me di sc us si ons then occurred w ith that manager about taking ouI equity in the Tully agency. Following a break-down in rhose discussi ons the manager ceased employment on 28 October 1991 and shortly thereafter Mrs Butcher was appointed as act in g manager by M r Dud ley Tay lor, the agency's pri ncipal. In around December 1991 M rs Bu tcher was appoin ted as the manager of Wings Travel wit h r espo nsibility ior both the Tul ly and Mission Beac h offi ces . In abou t August 1992 Mr Don Tay lor permanently returned to Aus t ra lia and indicated to Mr s Butcher that he was to become more invol ved in the bu siness . M rs Ju li e Tayl or (D on Tay l or 's wife) als o com menced employment in the business at this time at the M i ss i on Beach agency. The financial report for the year ended 30 June 1992 showed a loss of $1,500 whic h was of some surpri se to t he Tay lor f am ily. In October 1992 the previous manager of W ings Travel opened a new agency in Tully and a sen ior consultant of Wi n gs Tra vel left to j oin that agency. The Tay lor fami ly de termined to tack le this new competitor and decided to join the Harvey World Tr ave l fra nchi se in October/November 1992 and changed th ei r name from W i ngs Travel to Harvey World Travel. In di scuss ions between M r Tayl or and M rs Bu tcher a decision was ta k en to re place t he sen i or travel consultant, who had resigned, wi th a j un i or travel consultant. Beginning wit h his return from overseas M r Don T ay lor took over an increasing amount of the book work for t he agency and several mon ths later bega n to fi nd that the agency was experiencing financial probl ems with bank accounts being regu l ar ly overdrawn. The Tay lor's arranged for draft financi al accounts to 31 December 1992 at about th i s time which showed a loss for the h al f yea r of j ust over $31 ,500. (There is confl i ct between the employer's evi dence and subm issions as to why t hese accounts were prepared) -- 1 of 3 -- 970 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [24 December, 1993 • • • • • • • In early 1993 the Taylor's arranged for the agency to transfer bank accounts and took the opportunity to delete Mrs Butcher's name from the list of signatories. Upon her return from holidays in the UK Mrs Butcher met with Mr and Mrs Don Taylor on 23 February to discuss this change and a number of other concerns about which of Mrs Butcher or Mr Taylor was responsible for undertaking certain bookwork. Mrs Butcher also gave evidence that she had requested of the employer in December - before her departure on leave - to provide a duty statement because of confusion as to which of Mr Taylor or herself was responsible for undertaking certain bookwork. This evidence was not contested by Mr Taylor. Mr Taylor asserted that in January or February he and his wife had taken an opportunity to talk to Mrs Butcher about their working relationship. This was disputed by Mrs Butcher. Mr Taylor gave evidence that he had had a staff meeting in March at which time he spoke to all employees about financial pressures facing the business and about the need for employees to increase sales. He also asserts that he spoke to employees about "complaints" being received from customers. Mrs Butcher does not dispute that this meeting took place but disputes that there was mention of complaints from customers or that the financial position of the employer was spoken about in other than general terms. In April 1993 the Taylor family discussed the financial position of the agency and discussed means of controlling costs. After considering avenues to reduce the normal costs of doing business the family decided to reduce staff and agreed to terminate Mrs Butcher's services for the reasons stated above. Mr Taylor says that the decision as to timing was left to him. Notice of termination was finally communicated to Mrs Butcher on Saturday 9 May 1993 in a conversation about which there is considerable dispute as to what was actually discussed. Mrs Butcher was due to travel to Fiji on the Monday with other Harvey World Travel travelagents on a familiarisation tour. At the time of her termination, and for a number of years beforehand, Mrs Butcher was a member of the Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees. One of the travel consultants employed at 9 May 1993 has subsequently left and not been replaced, with Mr and Mrs Taylor increasing their respective roles in the business above the level in existence at 9 May. On the whole the Commission prefers the evidence of Mrs Butcher to that of Mr Taylor where points of difference occurred. Mrs Butcher seemed calm, assured and assertive in the witness box whereas Mr Taylor frequently appeared pressured, defensive and, at times, evasive. Because of the confused nature of this case - with neither party providing witness statements prior to the hearing as per the Commission's directions in the preliminary hearing - and with evidence being produced in an uncoordinated, and often unrelated, way, the Commission took it upon itself to attempt to get to the heart of the matter by asking a number of questions of various witnesses. Despite its own best endeavours to get to the heart of the matter the Commission is concerned that the real, or underlying, reason for Mrs Butcher's termination has not come to the fore. This is despite Mr Taylor's continual assertion in evidence and in submissions that the termination was because of the financial circumstances facing the travel agency. A number of points lead the Commission to still have concerns about the termination, and the reasons behind it, as follows:- • Mrs Butcher was never informed of any "complaints" that were allegedly being made about her by clients of the agency. • A number of the "complainants" mentioned by Mr Taylor in the proceedings were not clients of Mrs Butcher. • Apart from broad comments to Mrs Butcher about the financial affairs of the business the evidence does not indicate that she was ever spoken to about how the business was actually going. • Although Mr Taylor said that he had concerns that the staff were not doing enough to increase sales there is no evidence of him having raised this concern with Mrs Butcher in a direct way other than the very general meeting which is stated to have occurred in March 1993 . • The decision to terminate Mrs Butcher's services was said to have been taken at a board meeting about a month before the termination (upon the recommendation of Mr Don Taylor) but the actual termination did not occur until 9 May 1993. • The reason behind Mr Don Taylor's claim that he had not communicated the termination advice earlier, that he needed to talk to Mrs Butcher alone, does not stand up to scrutiny by a reasonable person. • The al legation that losses of $800 to $1,000 per week was the reason for termination, yet the decision to delay termination continued to exacerbate this loss. • The fact that the conversation in which Mrs Butcher was terminated commenced with a question by Mr Don Taylor as to why Mrs Butcher had withheld a letter that had been addressed to him and, when Mrs Butcher volunteered to help him find it, went on to indicate that it was "an irrelevancy". • The fact that in his evidence and submissions Mr Taylor continued to labour the point (on 9 or 10 occasions) that the issue of the letter was an "irrelevancy" to the decision to terminate. • The inconsistency between Mr Taylor's evidence and his later submissions as to the reason for the preparation of the trading results to December 1992, with the evidence indicating that he had prepared accounts because of concerns about the trading performance and his later submissions revealing that the accounts had been taken out at the request of a real estate agent in relation to the possible sale of the travel agency. (Note: The Commission has some concern that the trading and profit and loss accounts for the year ended 30 June 1993 tabled as exhibit 4 were asserted by Mr Taylor to be audited yet the auditor's statement is very specific in its qualification that the documents are not audited and that the accountants express no opinion as to whether the accounts present a true and fair view of the state of affairs of the company. However, the Commission is prepared to accept the correctness of the figures presented.) • The failure of Mr Taylor, an accountant, to address the claimed underlying problem earlier including the reasons why liquidity would have been increasingly tight and the failure to fully address the turnaround of $100,000 between the results for the year ended 30 June 1991 (profit $70,000) and the results for the six months to 31 December 1992 (loss $30,000). • The failure of Mr Taylor to satisfactorily answer, when under cross-examination, why he had failed until the day of the hearing to indicate to either Mrs Butcher, the Federated Clerks' Union or the Commission the basis upon which a decision had been made to terminate Mrs Butcher's services. The Commission is also concerned that Mr Taylor, an accountant, could not satisfactorily explain reasons for the loss to 30 June 1993. Although the figures contain an "unknown" trading account comprising 46% of the sales this was not apparent at the time of the hearing. In the document tabled as exhibit T4 it appears quite evident to the Commission that the substantive reason for the loss for the year ended 30 June 1993 was the $40,000 turn-around in gross profit from trading. Mr Taylor estimated at page 67 of the transcript that by eliminating $21,000 in expenses that were not related to the normal course of the business (associated with the involvement of Mr and Mrs Taylor and the decision to join Harvey World Travel) the business made a loss of $42,500. This is almost explainable by the turnaround in gross profit. 24 December, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 971 If the extraordinary expenses of $21,000 are removed the difference between total expenses in year 1992 to year 1993 is only $3,000. The differences in expenses between Tully on a year to year basis is only $4,000 which is inclusive of the extraordinary items. With these abnormals removed Tully's expenses performance was better in 1993 than in 1992. The difference between expenses for Mission Beach is $20,000 which is made up through increases in wages and salaries of $14,000 and abnormals associated with the decision to join Harvey World Travel such as advertising, franchise fees, and license fees. In answer to a specific question from the Commission as to why there would have been such a significant turnaround in gross profit margin on a year to year basis Mr Taylor could not provide a satisfactory answer. On any analysis it is clear that from the figures produced the total expenses associated with the running of the business has not varied greatly from 1992 to 1993, with the exception of the abnormal items in 1993 and the high wage and salary component at Mission Beach. The item which a trained accountant would, or should have, focused on would have been the significant turnaround in gross profit from trading which indicates some fundamental change in the business, or the nature of the conduct of the business. This should have become the first priority for attention but it appears not to have been addressed nor to have been an item considered by Mr Taylor. There are several other concerns in the mind of the Commission about the decision to terminate and the manner of its conduct. These other concerns relate to the failure of the employer to observe the requirements of clause 2.2 - "Introduction of Changes, Termination of Employment in Cases of Redundancy" of the Clerical Employees Award - State and apparent failure to observe clause 2.5 - "Preference of Employment" of the Award. In April 1993 the employer, through the evidence of Mr D. Taylor, claims to have made a decision to terminate an employee because of the loss-making situation. Because of reasons outlined above the decision was taken to terminate Mrs Butcher. Coincidentally, Mrs Butcher happens to be in receipt of a wage rate which makes her "partially exempt" from the Award. Clause 2.1 - "Contract of Employment" and clause 2.2 - "Introduction of Changes, Termination of Employment in Cases of Redundancy" are shown as not relating to partially exempt employees. Nonetheless, the provisions of the Termination of Employment, Introduction of Changes, Redundancy ("TCR") decision of the Commission (125 QGIG 1119-1121, as amended by 125 QGIG 1377 and 126 QGIG 188) are relevant to the employer on the basis that other employees would be affected by the change in manning of the establishment. Consequently, the employer had a duty under the TCR decision "to discuss with the employees affected or their union or unions, inter alia, the introduction of the changes . the effects the changes are likely to have on employees and measures to avert or mitigate the adverse affects of such changes on employees". The TCR decision goes on to require these discussions to commence as early as practicable after a definite decision has been made by the employer to make any of the changes referred to in the TCR decision (Clause B - 1 (a) and 2(a)). Had such discussion taken place the employees, particularly Mrs Butcher, might have agreed arrangements with the employer to "avert or mitigate the adverse affect of such changes". In addition, such discussion would have enabled Mrs Butcher to appraise the employer of the fact that she was a union member and required the employer to take account of the Preference of Employment clause in its deliberations. The fact that no such consultation was undertaken gave Mrs Butcher (and possibly her union) no opportunity to explore with the employer measures by which the dilemma facing the employer could be addressed. Further, it meant that Mrs Butcher's entitlement to have the preference clause brought into play was denied to her. The failure of the employer to consult, and the consequent failure to take account of the Preference of Employment clause cast doubt on the process used to arrive at the decision to terminate Mrs Butcher. This is particularly so when considered against the background of the concerns held by the Commission about the whole circumstances of the termination which are outlined above. Apart from the above concerns there is also the method of selection of Mrs Butcher ahead of other employees in circumstances where the termination is claimed to have been one of redundancy caused by the inability of the employer to continue to operate at its current level of expenses . On the evidence Mrs Butcher was the most experienced employee of the employer at the time of her dismissal. She was also the manager of the travel agency and the certificates and licenses held by her enabled the employer to receive other government and industry controlled licenses which allowed it to legally operate as a travel agency. The decision to terminate such employee would not be one normally made lightly and it is the fact that such a decision was made which should cause it to be well thought out and have a firm, solid, basis of support. The Commission can find little in the evidence which would provide a firm base to support the employer's decision to terminate Mrs Butcher. The principal ground relied upon by the employer was the level of the wage rate paid to Mrs Butcher when compared to other employees. There is also the assertion that unfavourable comments about Mrs Butcher had been received from customers and an assertion that Mr and Mrs Don Taylor found Mrs Butcher difficult to work with. The question to be answered is whether the criteria used for selection, the amount of notice provided, the timing and manner if its communication, the failure to consult and the apparent failure to consider the preference clause constitute a dismissal which is sufficiently harsh, unjust or unreasonable for the Commission to interfere in the employer's decision to terminate. In McLean and D'Angelis v David Jones (Australia) Pty. Ltd. (60 SAIR 62) the Full Commission held that failure to consult with the employee and/or the union does not of itself make the dismissals harsh, unjust or unreasonable. However the Full Commission went on to indicate:- "lf consultation, as required by an award does not occur, and it can be shown that the person or persons have been selected for redundancy either by reasons of an unfair or unjust criteria being utilised, or that the person or persons were not selected in accordance with an established fair and just criteria, or that there are other circumstances which demonstrate that some other person should have been dismissed such dismissal may well be adjudged to fall within the statutory criteria. See Corkrey v C.M.H. (1986) 53 SAIR 531 at 538-9 and Hemmings, Chandler, Biebrick and Kennedy v C.P.5. Credit Union (1991) 58 SAIR 421 at 426." . In Corkrey v General Motors-Holden 's Limited Mr Justice Stanley (at page 538-9) identified five basic principles to be followed when an employer sought to retrench or make redundant part of his workforce. After deciding those basic principles His Honour stated:- "The intent is that where redundancies or retrenchments must unfortunately occur, the impact should, as far as is humanly possible, be minimised, so that the employees directly concerned can see that the selection process has been carried out fairly. A departure from those principles without good and just reasons may well lead to the conclusion that the dismissal should be regarded as harsh, unjust or unreasonable, even if economic or other valid considerations make the redundancies necessary.". Included in the five basic principles were that the employer would give as much warning as possible to the employee(s) affected; and that "in attempting to decide the criteria to be applied attention should be paid to such matters as length of service, efficiency, experience and attendance records where such matters can be objectively checked, and do not depend solely on the opinion of the person making the selection.". In a more recent South Australian ,ecision, White v Douglass Diagnostic (I. 31/1993) Commissioner G.M. Stephens found that the decision of the employer to terminate Ms White, and the manner of its conduct, was sufficiently harsh, unjust or unreasonable to warrant the Commission's intervention. After identifying a number of deficiencies in the employer's conduct Stephens C. stated:- "Although award free, the employer then relied, and still relies upon the termination change and redundancy standards of this Commission with respect to notice period and severance payments in establishing a total termination payment. That is quantified in her case by a payment of -- 2 of 3 -- ,... 972 QUEENSLAND GOVERNMENT INDUSTR IAL GAZETTE [24 December, l 993 three weeks in lieu of notice and six weeks' seve rance pay, a to ta l of nine weeks' pay in al l. Wh il st t he authorities suggest t hat the te rmination change and redundancy standards for awa rd employees be taken as a gui de (see for exa mple Morris v Southern Farmers Limited 58 S.A.I.R. 86), it is al so a mane, for assessment in each individual case having reg ard to the particular circumsta nces of that case (see Jackson v. Atco Limited 53 S.A .I.R. 95 at 111).". Whi l st it is acknowledged t ha t t he above cases have been wri tten in South Australia and crea te precedent only in 1h a1 State, they are nonethe less of some re levance. In the instant case the employer did not pay the quantums set oul in the TCR decision on t he basis of advice that ii claimed to have received from an employer assoc iation that as a partia lly exempt employee Mrs Butcher was not entitled lo anything more than one week's notice, or wag es in lieu. Strictly, under the Award, there is apparently no entitlement 10 any notice (or red undancy entitlement) for partially exempt employees. Accord ingl y, t he common law concept of "reasonable notice" would be re levant. One week's pay in lieu of notice could ha rd ly be considered "reasonable" in the case of Mrs Butcher given her length of serv ice, experience, pos ition and the l ikelihood of finding su itabl e, equi va lent, employment in, or near to, Tully. After consid ering all of the evidence, su bmi ssio ns and cases referred to in these proceedings t he Commi ss ion has determined that the decision to term inate Mrs Butcher's serv i ces by the employer was ha rsh, unjust and unreaso nable. This is particul ar ly so in light of:- • The length of servi ce, experien ce and position occupied by Mrs Butcher; • • • The l ess than objective method of assessment of Mrs Butcher as the employee to be terminated; T he fa ilure of the employer to consu lt with employees (es pecia lly Mrs Butcher) about ways to mitigate or avert the poss ible redundancy; The l ack of any warnings to M rs Butcher as to any d issat i sfact i on on t he employer' s beha lf as to her alleged unsati sfactory performance insofar as her deali ngs w ith clients were concerned; The less than convincing position advanced by the employer that although the decision was made in Apri l to termin ate Mrs Butcher for economic reasons this was not actua lly carried out until 9 May with the reas on for the delay appeari ng, on the surface, to be spu rious; The inadequate no ti ce period notwithstanding that Mrs Bu tcher was a partially exempt employee; and • Finally, the doubt in the Commission 's own mi nd as to the adequacy of the identification of the underlying causes of the financial l oss claimed to have been suffered by the empl oyer and th e required acti on to correct the situation. The Commission records that in reach i ng its concl usion th at the dismissal was harsh, unju st and unreasonable the last mentioned po int (above) was an additio na l fac tor to support t he decision already reached by it on the ear lier grounds. Any breach, or poss ible breach, oi the Preierence clause was al so not requi red to be decided. It is a wel l es tabli shed principle of this Commission th at i t wi ll not inte rfe re with the decision of an employer to te rm inate an employee except wh ere "i ts intervention is necessary to protect an employ ee aga in st an unjust or un fai r exercise of the employer's right of dismissal, a right w hich is as iundament al in the re lation sh ip of employer and employee as is the right of an employee to le ave his employm en t." See Barrett v Women's Hospital, Crown Street (1947) AR 565 at 566- 567 cit ed w ith approval by Sheahan A.P. in Local Authorities (Excluding Brisbane) and Main Roads, Etc. Award - State 98 QGIG 12 86 at 1288. See al so North West County Council v Dunn (1971) 126 CLR 247 cited with approval by Sh eaha n A.P. (above) and in Re. Sugar Industry Award - State 98 QG IG 1288 at 1289. In the i ns tant case the Commission is of the view t hat th e exercise of i ts right to termin ate Mrs Bu tcher's services by the employer was so suffici en tly harsh, unj ust and un reaso nable th at the Comm is sion 's intervention is warran ted . The question for determination then is what is to be the level of the Co mmi ss ion's interven tion. Sect i on 1 75 provides that if the Comm iss i on considers that a di sm issed employee should be re i nsta ted or re-employed the Commi ss ion may order accordingly. If th e Commi ssion is of the view th at an order for rei nst atement or re-employment is inappropriate the Commission may award an amount of compensation as determined by the Comm ission. In Achal v Electrolux Pty. Ltd (1 43 QGIG 144 at 145) Hall C.C. stated :- ,. . . . reinsta te ment should on ly be ordered where the dismissa l was so harsh and oppressive as to be an abuse of power. It is settled t ha t the power to re instate is a power to be exercised with caution. In Slonim v Fellows (198 4) 154 CLR 505 at 515 W ilson J (with whom Mason and Dea ne JJ agreed) said: 'fD he power to direct that A employ B i s a very drastic one . .. i t will al ways be a power to be exerci sed with caution having regard to th e circum stances of the case. The re will be many cases whe re the work ing relationship of employer and employee i s so close that to impose suc h a relationship by an award wo uld be quite destructive of industrial harmony.'.". In Achal Hall C.C. determined that he wou ld no t order reinstatement or re- employment b eca u se of an appr ehens ion that "no more t han a po i so nous work environment can be created by an order for re instatement". In Mrs Butcher's case there was also no ne of the co lourful language which was in evidence in Simpson v PO Resorts (Heron Island) (see decision of Hall C.C. 7 De ce mber 1993). Although Harvey Wo rld Travel at Tu ll y is a sma ll workplace there is nothing in the evidence to suggest that there has been the occurrence of any of the type of events referred to by the Chief Commi ssio ner in Achal or Simpson. Indeed, from the Commi ss io n' s own observations of Mrs Bu tch er and M r Don Taylor dur ing the course of proceedi ngs t he re i s nothing to suggest that a proper re l ationship could n ot be re-created. Ap art from so me slight tes ti ness with each other du ring po ints of con tes ted evi dence there was no apparent hostility or enmi ty between them an d nothing which wo uld otherwise ca use the Commission to have reservations about th e successful re-creation of an acceptable employer/employee relationship. Accordingly, pursuant to the powe rs gi ven to it under section 175(1)(al of the Act the Commission ord ers t he employer to reinstate Mrs Frances Anne Bu tcher into he r previous position as office supervisor without prej udi ce to th e former em pl oyment conditi ons from a date to be determi ned in consu ltation with Mrs Bu tch er or, in the event that there is no agreemen t, to be determin ed by the Commission. The Commission mak es thi s unusually fr amed order for the foll ow ing reasons . Shortly after her termination by Scanmaze Pty. Ltd. M rs Butcher discovered that she was pregnant. This p regnancy followed a nu mber of u ns uccessful attempts an d severa l miscarri ages. The t im ing of M rs Butcher's pregnancy i s such th at she is likely to give birth ear ly in the new year and i t wou ld be inappropriate in all of the circumst ances for the Commi ssion to determine a d ate upon which Mrs Butcher should r esu me employment because t he Commission cannot place itself in th e mind of M rs Bu tcher as to how she woul d have app roached the issue of her con ti nued full-time employment and/o r an applic at i on for matern ity l eave under the Commission's Maternity Leave decision dated 12 March 1980 and publi shed in the Queensland Government Industrial Gazette dated 22 March 1980, No. 25 , folios 698-700 . Had she not been unfairly term i nated, M rs Butch er would have been able to continue in empl oyment an d to make a consider ed d ec ision as to w he ther or not she chose to re sign - in order to start he r f am ily - or apply for materni ty l eave. Such occurren ce could have occurred at any time and it i s not poss ible for either the employer or the Co mmi ssion to d ete rm ine which of t hese cour ses of action Mrs Butcher might have determin ed to follow, nor the timing of such occurrence. Inde ed , any qu es tion to Mrs Butch er about thi s i ssue and wh at she would have done had she remained in employment wo uld only have invi ted conject ure on her part. It is simply not poss ible to re-create history. 24 December, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE However, having regard to the Maternity leave decisio n, there can be some certainty as to the final date upon which Mrs Bu tcher wou ld have been required to resume duty after t he birth of h er child. Acco rd ingly, the Commi ss ion indi cates to bo th parti es that in the event that Mrs Butcher determines th at she does not w i sh 10 r esume employment w ithin twelve (1 2) months from the date of the birth of her child she may elect instead to recei ve twe l ve (12) weeks of pay at the ra te of $598.95. Such amount has been determi ned wi th no sc ientific precisenes s. II is simply designed to be a reasonable recompense to Mrs Butc he r for lo ss of wages between t he date of dismissal and the date of he r possi ble resumption of employment in circu mstances where no-one could ha ve determined when she might have cho sen, or have been advise d, to proceed on mat ern i ty leave or to have resigned her employment. In the even t that Mrs Butcher d oes decide to return to employment within twelve months from t he date of the birth of her chi ld the pe riod between 9 May 1993 and 9 December 1993 sha ll be rega rded as continuous service for all pur poses. The Commiss ion orders accordingly. A. L. BLOOMFIELD, Commissioner Appearances:- Mr J. O'Donnell, of the Federated Clerks' Union of Austr al ia, North Queensland Bran ch, Union of Employees for Mrs F. Butcher. Mr D. Tay lor for Scanmaze Pty . Ltd. trading as Harvey World Travel, Tu lly . Operati ve Date: N/A Decision - Rei ns tatement Re le ased: 13 December t 993 ##### ### # ####### ## ############# #### ########### ###### 973 -- 3 of 3 --