Allen v Terry White Group Proprietary Limited [1993] QIRC 182 (1993) 143 QGIG 195

194 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 11 June, 1993 11 June, 1993] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 195 ######################################################### QUEENSLAND INDUSTR I AL RELAT ION S COMMISS ION !nd11s111al Re/a/Ions A cl 1990 s. 11.37 - application for reinstatement Denise Allen AND Terry White Group Proprietal)' Limi ted (No. 8 17 of I 993) C HIEF INDUSTRIA L COMMISSIONER HALL 28 May 1993 Ten ninat ion of Employm,mt - Dismissa l/ Redundan cy - Rea.son for D ismissal unclear - Eviden ce - Inaccurate Separation Certificate and Cenifi ca k of Emplt)yment - Dismis sal l lnfair - Preference to he gi ve n to Union Members under Award - Emp loyer unaware of Award provisions - "Practica lity " limitation on exercise of power under s. 11.38( l Xa) - Power lo reinstate to be exercised c autio usly -- App li cation g ranted -- Reinstatement and Compensation ordered. DEC ISIO N T he Applicant. Denise Allen. follows the calling of a shop assistant. TI1c Respondent . Teny While Group Pty. Ltd ., is a body co rporate under the law a nd th e emplo y er of the workforce w ithin the pharmacies which const itute the group ing col loqui ally known as Terry White Ch emists. In Octllber 1992 th~ Applicant was engaged by the Respondent 10 wo rk pan-time as a shop assistant in the Terry White Phannacy at the Australia Fair Shopping co mpkx in the prov inc ial centre of So uthpon. 171c tenns of the en gagement were not reduced to writing. h is. however, co mnHm gr<>und that Mrs Allen wa.s guaranteed an awrnge of 20 hours work pa wee k. and was obl iged to work such further hours as the Responde nt (reasonably) requ ired. On some occasions she worked at a particubr counter rdieving the staff mem ber ordinarily assigned to the post. On o th er occas ions she wo rked as a "floater". ass isting al such counter as the flow of custom demanded. The un derstand ing. I think. was that she was to perfonn dut ies as directed. ·n1e employment ca me to an end (m Tuesday. 29 December J 992. Detem1ining why the employmen t came to an end has proved a more perplexing tas k. Mr Leigh Saurels. the resident Phannaci st and Joint Manage r of the P hanna cv (who broke the had uews to Mrs A ll en). tells me on oath that 1vlrs A ll en's ernplovment was tem1ina1ed becau se of all the staff taken on in cnnse,, ue nce of an extens ion of the premises. Mrs Allen ha d the least experience and had no speciloc ro l~ within the -- 1 of 2 -- 196 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE l 11 Jun e, 1993 Phannac y. He denies Mrs Allen's ev iMnce that prior to attributing the terminat ion to her lack of experience. he sought to have her be lieve that she was being laid ofT in accordance with the maxim "Last on. First to go .". Mr Saurds admits that in discussi ng reductions in stafT levels with Mrs White on 27 December 1992. he said that tennination of Mrs Allen's engagement made sense as she was "the last on and I guess she should be first oil''. Mrs Wh ite confim1s the discussion wi th Mr Saurels above. She tell s me that she "did not argue this point with Leigh [Mr Saurels] as I thought it made him more comfortable about doing the redundancy as it is not a pleasant jo b" . I accept the evidence of Mrs Allen. I have not the least doubt that Mr Saurels did seek to le ad Mrs Allen to bd ie ve that she was being laid off as the "last to come". l\fr Sau rels may have been moti vated by Christian charity. In fact , Mrs A ll en was no t the last s taff membe r to be engaged. as she we ll knew . In fact, Mr Sau rels succeeded in only causing Mrs Allen to doubt the truth of that which she was ult imately to ld. Ms Renee Walker, with Mr Saurels th e Jo int Manager of the Pham1acy. told me at one stage in her evidence that Mrs A ll en was tcnninat ed because she was th e least qualified and kast experienced member of sta ff At another stage she to ld me that the position filled hy Mrs A ll en, whi ch had no specific respons1hilities, was the easiest to do wi th out. Mrs Wh ite. the owner of the Ph am1 acy. gave as a reason that if staff were to be reduced (as they were) the posi tion which might be lost with kasl dislocat ion was the relievingisup pkmen tary posit ion iilkd by Mrs A ll en. I am satisfied that the management group of Mesdames Wa lker and White and Mr Saurds reached a bona fi<le and reasonable conclusion that sales did not justify exist ing s ta ff kvels . On balance I think that what followed thereafkr was a genera l dis.:ussion of how the reductions shou ld be made. in the course of which it was sa id that Mrs A ll en's position was the most easily sacrificed and that Mrs Al kn was the kasl experienced and qualified staff member. The likdihood is that at that point Mrs A ll en was nominated as the emp l<>yec to be made redundant on the basis "A ll roads lead to Rome ": i.e. w ithout drawing out the strands. If the matter had stopped there. it would be necessary lo re view that materials on wh i,:h the "roa ds leading to Rome" were based and the princip les co nstraining th e circumstances in which an employer's decision to dism iss mav rropc rly be "reviewed ". The ma tter docs not sto p there. On 3 1 December the App licant ca lled at the Phannacy lo coll~ct hu Separali0r1 Cert ilicate and a Cert ificate of Employment. She had spoken to l\fr Saurels by t elepho ne th e previous day and asked him 10 have ready for collection both the Separat ion Certificate and Certificate of Employment. In fact ne ither do cum ent was ready for collection. ll1e Applican1 pressed Mr Saurels for the Certilicatcs an d in di i:ated that she would retum lat<!r in the day to collect them. When she did she was handed a Sep;iration Certificate in stand ard fonn, executed by Ms Wa lker. and hearing a ti ck in the hox marked "YES" adjacen t to the question "Was employmen t lenninated due to unsuit ability for this type or work?". By way of a Certificate of Emp loyment she was giv.:n a handwrillen reference 011 the letterhead TERRY WJIITE CHEMISTS. signed by Ms Walker, and in the following t enm: "TO WHOM IT MAY CONCERN lliis is to ce11i(y that Denise All,m has been emp loyed by Terry White Chemis ts during the period from 19/ 10/ 92 until 29/ 12/ 92 . Employment was tenni nated as Employee was inappropriate for 1he posi tion.". Each of Mrs White and Ms Walker tells me that. w hile Ms Walker was authorised 10 issue the ce rtificates. such documents a.re ordinarily prepared at "head oflice". Ms Walker tdl s me that she has no experience in completing Separation Cert ificates. She tells me that she ticked the hox indicating that the Applic,1111 was unsuitable because that answer was the closest to correct of the standard fonn answers pf()vided. To the ex-tent that her hand written certificate of employment indicates an)'thing other than that the App li cant was the least appropri ate member of staiT to Ntain , Ms Walker advises me that the fault lies in infe l ic itous ex-pression. Ms Walker seems to be an int dlige nt wo man with considerable business acumen. The standard fom1 Separation Ce rti ficate gave the option of an affinn ative answer to the question "Was emp loyment tem1inated due lo shortage of work?" . It provides space wh ich m ight have been utilised bv Ms walker to fomrn late a reason in her own language (though no' advice to that effect is given). It wams that there are penal ties for giving false or mislead ing infonnation. ll is difficu lt to believe that Ms Walker was befuddled. The Macquarie Dictionary gives "inappropriate" as th e primary meaning of "unsu itable". In its natural mea ning the handwritten note conveys the same m eaning as the Separation Cert ificate. ll would be a remarkable coincidence if each of two contemporaneous e rrors produced the sam e res ul t. I reject Mrs Walkds evidence. In my view she was perfectly well aware that each of the ce11ificates asserted that Mrs Allen h ad been dism issed because she was not su itable for 1.he posit ion which she had previously held. On all the eviden ce Mrs A ll en was well su ited to her position at the Phamrncy. The decis ion to di sm iss her was not based on a co nclusion that she was un ,1pl. Each of the Separat ion Certificate and the handwritten Certificate of Employment was wrong as to the r"ason for dism issal and as to Mrs Allen's aptness to the position. Each ,)f the Certific ates caused great damage to Mrs Allen's prospects of obtain ing a lt ernat ive empl oymen t. A s tu dy of her resume (which had been made available to Ms Walku) sh ows that her pos ition at Australian Fair was e:-:act ly the kind of posit ion for whic h she was suited by her training and experience. If doub t he cast on her suitabi lity for such a posi tion. she has little in her resu me on which she can rel1 . I conside r that the issue of the mi sle ading Ce rtificates was an essen tial pa rt of th e dismissal process rather t.han collateral to it. and made th e dismissal unfair. The dismi ssal was unfair for another reason also. The emp loyment was regulated by the Shop Assi stants' (General) Awa rd - Southern Divis ion. Clause 39 of that Award is in the fo ll owing ten ns : 39. fufe1t1l<'e (I) In 1h e <.:ase ,,f weekly employees preference of emp loyment under this Award al the t ime of engagem en t shall be given to financial members of the Shop, Distributive and Allied Emp loyees Association (Quee nsland Branch) Union of Emp loyees or 10 persons who make app li cat ion in wri1 ing to join such Industrial Organ izat ion within I 4 d:1ys from th" daie of co mmencing employ1J1ent. (2) No person sha ll be deemed 10 have mad<! app li cat ion to bernme a financ ial member of the Industrial Organization unless such person has tendered the fee prescribed by the Rules of the Industrial Organization 10 some pers,,n au thorised lo receive such foe on the Industrial Organization\ behalf. (3) Preferen ce of c,mtinuat ion of employm"n l under this Award shall be given 10 financial members of the Shop, Di stributive and Alli~d Employees Assoc iation (Queens land Branch) Un ion of Employees. (4) In the .:as.:: of pa rt -lune and casual employees under this 1\ward preforence of employnwnt at all times sha ll he given to fin ancial m emhus of the Shop, Distributive and Allied Employees Association (Queensland Branch) Union c,f Emp loyees. Mrs Allen was a financia l member of lhe Shop, Distr ibuti ve and Al lied Emp loyees Associati,,n (Queens land Branch) Union of F:mploy~~~- Clanse 39 (3) did not give Mrs A ll en an enti1le111ent to retain ha posi tion save where all other employees were m,;mbe,·s of the Union. C lause 39(3) does reyuire an emplo yer bound by the Award to take into account and give we igh t to the circumstance that an employee has approp ri ate uni on membership in those cases in which (as here) em ployees. who do nol hold su ch membe rship. arc also potenti al candidates for retrenchment. That did not happen here . The omission was in my view unfair. It is not to the poin1 (as is sai d here) to say that the management team were unaware of clause 39. Employers are taken to be aware of the terms of the Awards bind in g upon them. It is equally idle to argue (as is argued here) that the management team did not know that Mrs Allen was a unionis t. If the facts relevanl to award obse rvan ce are not known. it is lhe duty of the emp lc,yer to -,stablish the facts. compare Grego1y -v - Philip l\fo nis Ud ( 1988) 24 IR 397, at 413 per Wilcox and Ryan , JJ. No enquiries were n1ad.! . An assumption was m3de. It wa$ wrong. t-.·ls Rice for the Resr0nden1 urges me to act <>n the evidence of Mr.- While that 1-·t rs Alkn wou ld not haw been treated different ly if she (M rs White) had been aware ,,f clause 39 and of r--. l n, Allen's 11 June, 1993] QUEENSLAND GOVERNMENT INDUSTRlAL GAZETTE union membership . The evidence was given in response to a leading queslton, 1s self servrng an d 1s convenient. It was given without any apparent pause to reflect upon the qualities of the staff retained in preference 10 Mrs Allen. Further, there is ev id ence that one staff membe r who was not on ly retained but given a sufficient increase in hours to become full-time is perfonn ing "cash and wrap duties" and duties (not invo lving processing) on the photography se~tion. The cla im that a woman of Mrs A ll en's experience was not (with comparable t~aining) equally capable nf discharging tho se duties stra in s credulity. 111e good lady who has been retained is not a union member. I dec line to act on Mrs White's evidence and decline to hold th at the omission lo consider cla use 39 was of no co nsequence. TI1e re is no evidence that a position is currently avai lab le at th e Australia Fair Pharmacy. ll oweve r. th e limitati on on th e power at s . I l.38 (J)(a) is "practi ca li ty" not "availabil it y" . If th e Legislature had wishe d to limit the power to reinstate to cases w here it is practical and a position is availab le. th e Legislature might have said so . "Availability" is after all the limitation on the pl,wcr at s. I l.38( l )(b). There seems to me to be lillle doubt that the Respondent may practically reinstate the Applicant. Doubtless some variation in the hours worked by other s taff wi ll be necessa ry . If the Responden t had focused on cla use 39. such a r ea rrangement niay well have happened 111 December. The more dillicult yu estion is whether having regard to equity and good conscience. the interests of the community as a who le, the interests of the pa nics immed iatel y conccmed and the substantial merits of th e cas". reinstatement should be ordered. Mrs White, who is not based at the Phamiacy, has to ld me that she w ill not will ing ly t ak e the Applicant i nt o "he r" emplo yment. a concept whic h I take to mean the empl oyment of the Responde nt whose alter ego she ap1>ears to be. l-ler ohjection arises out of th e inst itution and co nduct of these proceedings. To give weig ht to that factor would be to exercise discretion on a basis which would frustrate the purpose for which the disc re tion is created by the Act. Doubtless th ere wi ll be so me embarrassment in dea lings bdween the Applicant and Ms Walker. If the Applicant is prepared to face that embarrassment. Ms Walker shou ld not, on the facts. be spared. l accept that the power l ,1 ord er reinstatement is to be exercised cautious l_y . Here the unfo imess has been so caval ier and gf()tesque !hat a failure lo mlervene w ou ld properly be branded as a sup ine failure 10 act rather than a cautious omiss ion to act. l order that. as and from I June 1993. the App li cant he reinstated hy the Rcspon<knl as a pa 11-t11n e shop assistant at the Australi a Fa ir Phan nacv on the same condit ions whether as to hours. duties or other ,na tk.rs as previous ly applied. It is agreed between the p ai1ies that if the Applicant had worked her guaranteed m inunum 20 hours per week over the period 29 December 1992 10 27 May 1993 and at times not anract in g pen:tlty rates. she would have eame d $4180 gf()ss. ll is further agreed thai the tem1ination pa y ment made t(> the Respondent in respect or annual leave and the not ice per iod which was no t worked was $452 gross (ca lculated to the nearest doll ar). n ,erc is no evidence that Mrs Allen ob tained other emplo y ment or should have done so. There are no spec ial ~ in:: u m:,;.tan ces. 111c wrong which has heen done may on lv be undone by an order under s. I 1.38(4). I order th al the Respo nde1it pay to the Appli cant the sum of $3728 within ;:even da ys of the da te of rekasc of this decision . • D.R. HALL. Chief Indust rial Commissioner. Appeamnces:- 1'-·tr C._ Casey of the Shop. Distributive and Allied Employees' Asso~tal 1on of (Q ueensland Branch) Un ion of Empl0yees for the Applicant Ms C. Rice ,,f Retailers' /\sso.: iation of Queensland Limited. Union of Employers for the Respondent. Operative Date: Decision - Released: 31 May 199'.l ll 197 -- 2 of 2 --