Elliott v NC Mart Pty Ltd [2004] QIRC 81 (2004) 176 QGIG 32

32 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 May, 2004 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Anthony Elliott AND NC Mart Pty Ltd (No. B848 of 2003) COMMISSIONER THOMPSON 29 April 2004 Application for reinstatement – Witness evidence – Credibility of witnesses – Reinstatement or re-employment impracticable – Application granted – Compensation ordered. DECISION Background An application was filed on 21 May 2003 by Mr Anthony Elliott (the applicant) in which he alleged that his employment had been terminated in a harsh, unjust and unreasonable manner by NC Mart Pty Ltd (the respondent). The date of termination was, in the first instance, shown as 21 April 2003, although there was a later reference to 15 May 2003 as being the last day of work by the applicant. Applicant The applicant was represented by Mr John Merrell, of Counsel, with evidence being called from Mr Joshua Huntley and the applicant. Elliott The applicant, in the first place, gave evidence relating to the commencement of employment by himself at Night Owl stores in Albert Street, Brisbane and at Stones Corner. After being approached by the Manager of the abovementioned stores, he accepted an offer of employment which started on 18 December 2002. On commencement, he was not provided with written advice as to the nature of his employment and only receiving verbal confirmation that wages and conditions would be “as per the Award”. On 26 February 2003, he was approached by the Business Manager of the company and advised that the Albert Street store had been sold, he was being let go and that “ongoing employment” had been arranged with the new owner on the same pay and conditions he was currently receiving. The applicant’s evidence was that he had no desire to transfer his employment and on raising that position, was told that the transfer was part of the conditions of sale. An offer was made and subsequently withdrawn by the previous employer which hinted at re-employment if the new arrangement was not to his liking. A meeting was arranged with the new owner, Mr Chiman “Charlie” Khanna, on 28 February 2003. At that meeting, he was advised of the following: • he would be required to work a 50 hour week • his first shift for the new owner would be 5 March 2003 (as per his normal roster). The applicant raised strong objection (to no avail) in having his hours of work increased from 45 to 50 hours per week. On 7 March 2003, he met with Ms Shivani Khanna (the owner’s daughter) who he was later to establish was the actual owner. In the first week of the new employment he informed the employer of his intentions to join the Police force, his involvement in Rotary Youth development programs and the need to take leave in April of that year. The employer was told that it may be twelve (12) months before the move to the Police occurred. The first weeks under the new management was chaotic as it appeared to him that the owners had little knowledge of the industry however a good rapport was established between the parties. Mr Khanna, during this time, informed him that there were two types of people “those like him who ran things, and those like his factory workers who did not think for themselves and could only do what they were told”. In mid March, a new roster was developed which had him doing 50 hours per week, again he objected for reasons relating to the need to spend time improving his fitness levels to gain entry into the Police force. He later lodged further objection to the hours being required of him, but was told that was because all other full-time employees worked 50 hours it would not be fair for him to work less. At that point in time, he requested to see a copy of the Award governing his conditions of employment, however was told by Ms Khanna that “we don’t have a copy”. His request to see the Award was ongoing, with his evidence stating that he made such a request at least twice a week. -- 1 of 10 -- 14 May, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 33 At paragraph 52 of his affidavit, he raised other issues that were contentious at the time: • “that there was no first aid kit available, • no coat for people required to work in the cool room, • staff were required to count the till and the float and complete shift sheets on their own time before and after their shifts. (These tasks take about 20 minutes.), and • penalty rates were not paid for work on public holidays.”. Whilst employed by the respondent, Mr Huntley, a friend of his, was a regular visitor to the store and subsequently (unsuccessfully) applied for a position. At the end of March 2003, he told Ms Khanna that he wanted to be made a full-time, 38 hour per week, employee and was told that he was a valued employee and his request would be accepted subject to the change taking a period of time to arrange. On his return from leave on 14 April 2003, he discussed a number of issues with Ms Khanna, not including his 38 hour week request. Later that day, she advised that the Night Owl head office was insisting that he be moved to casual because of his intentions to join the Police force. He challenged such a move as he needed a reliable income and told her that he would rather stay on the 50 hours per week than revert to casual. Ms Khanna, in reply, told him that he was lucky to be offered casual as the head office wanted him sacked because of his intentions to join the Police force could see him leaving without giving satisfactory notice. He was told that he would be guaranteed a minimum of 22 hours per week, which he did not accept and he warned that he would fight the proposed change. On 16 April 2003, he was notified that he would commence as a casual from 21 April 2003 on sharply reduced hours. On or about the same day, a new employee (Mr Murray) commenced at the store and during training being given to Mr Murray by the applicant, Mr Murray expressed concerns about taking the applicant’s job. On his conversion to a casual employee on 21 April 2003, his hours were reduced and his duties altered significantly. The relationship between the Khanna’s and himself changed from that point onwards to the extent that his attempts to exchange pleasantries or common courtesies were ignored. On numerous occasions, Ms Khanna pressed him to provide a letter requesting his hours be cut back to which he replied, on at least one occasion: “I told her I did not want the change to casual hours and that she would not get any letter from me. I reminded her that I wanted the Award so I could fight the charge.”. In early May 2003, Ms Khanna again, in requesting a letter from him, said that it would be required to assist with the processing of his superannuation entitlements and whilst he did not trust her, he felt obliged to do “something” for the accountant. He wrote a letter consistent with his original request to be reduced to a 38 hour week, full-time arrangement, and at Ms Khanna’s request, backdated it to 18 April 2003. Shortly thereafter, he was requested by Ms Khanna to change his letter to stipulate that he wanted to be a casual employee. Already regretting having backdated the letter, he refused the request. From the time he went to casual, his hours never reached the 22 hours per week as the minimum guaranteed but were reduced to “20, then 16, then 10 and 12 and effectively 4”. On 15 May 2003, he reported for work at his regular time (for that day) of 10.00 a.m. only to be advised that his roster had been changed and he was to start now at 2.00 p.m., effectively cutting his time from that week to only 4 hours. He immediately phoned Ms Khanna to complain about the treatment he was receiving. At paragraphs 118 and 119 of his affidavit, his evidence went to what then occurred: “118. I said that I can not handle this treatment any more and that I resign, effective immediately. She said ‘Fine, OK see you later’ and hung up the telephone. 119. At this point I had still not been given access to my Award. I was aggrieved by the whole process. Although I did not know my rights, I knew that I was being treated shabbily. I wanted to check my entitlements. I went straight home and rang the Department of Industrial Relations where I spoke to an officer about my circumstances.”. His evidence then went to the circumstances in which he found himself in since losing employment, which included both financial and emotional stress. He remained unemployed until 17 November 2003, gaining only a minimum of casual employment in that time. He accumulated debts to the value of $6,500 in that time. The applicant provided to the Commission an affidavit in reply that challenged evidence relied upon by the respondent from witnesses: Mr Graeme Haack, Ms Crystal Sagar, Mr Khanna and Ms Khanna. -- 2 of 10 -- 34 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 May, 2004 The affidavit went to around 25 pages and raised issue with some 109 clauses of the witnesses’ statements. Mr Dion Matley, of the Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers) (QRTSA), drew to the attention of the Commission a number of “questionable” paragraphs that related to hearsay and opinion rather than evidence proper. Each of the clauses in question were identified by Mr Matley with the statement then being admitted into evidence subject to the Commission placing the appropriate weightage (in deliberations) on the evidence. Cross-examination of the applicant went to a range of issues including: • income earned during period whilst unemployed • employment prior transmission of business • hours of work on commencement with the respondent (page 33, line35 of transcript): “Matley: So if you not accepted the offer of 50 hours and based on what we’ve already established that you would have no entitlement to severance pay under employment with Mr Docker, you were put in the position where you could either accept the 50 hours or walk away with nothing? Elliott: No, that’s not how I’d say the position was. I’d say the position was that I was discussing with them – acknowledging the – what I’d made clear to them from the beginning and rectifying that.”. • reduction sought to 38 hour week – letter written by the applicant • move to casual employment • challenges to the respondent’s witnesses affidavits. Huntley Mr Huntley was an acquaintance of the applicant since around 2001 gave evidence of visiting the Night Owl store in Albert Street to meet the applicant either before or after he finished his shifts. He had frequent discussions with Ms Khanna and, in or around March 2003, applied for a position at the store. He was subsequently interviewed by the Ms Khanna, but did not get the job because he could not satisfy the employment requirements of the employer. In conversations with Ms Khanna, the topics covered, more often than not related to how things were going with the store. He called into the store on the evening of 12 April 2003 where he says Ms Khanna told him she was worried how the applicant would react to being moved from permanent to casual on his return from leave. He met with the applicant the following Monday where he was told that the move to casual had occurred and that the applicant was angry and intended to get his old job back. The applicant spoke to him quite often in the following weeks, culminating with a call on 15 May 2003 where the applicant advised that he had been forced to resign and that the actions of the employer were deliberate in this respect. In cross-examination, matters raised included: • witness’s claim that he answered a job advertisement in the Courier Mail when applying for a position with NC Mart • visit to Albert Street Store on 12 April 2003 and subsequent conversation • witness’s affidavit (page 95, line 33): “Matley: So, without being present in any conversations between Mr Elliott and Ms Khanna you are basing your points 30 and 32 through to 43, apart from the observations that you held, you only received his side of the story; is that correct? Huntley: Based on my side of the story that I have obtained off Anthony as well as actions that he had taken, yes.”. Respondent The case for the respondent relied upon evidence given by Ms Sagar, Mr Haack, Mr Khanna and Ms Khanna. Sagar Ms Sagar was a previous employee of NC Mart, having been employed in the period of the applicant’s employment. Her evidence related, in the main, to the events of 15 May 2003 when the applicant’s employment ceased. She recorded details of the event in the store diary at the page of 17 May 2003, although claiming to have written it on 15 May 2003. On the issue of the applicant being moved from permanent to casual, the witness, at paragraph 11 of her affidavit, stated: “This event did not surprise me as Anthony had often said to me that he could not handle the 50 hours per week position. On numerous occasions he indicated that he would rather do a maximum of 20 hours per week to assist him with other commitments. He went so far as saying that he would quit if didn’t get what he wanted. I recall telling Shivani of what Anthony told me.”. -- 3 of 10 -- 14 May, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 35 Under cross-examination, a number of questions were put to the witnesses on matters, such as: • her notation in the store diary on 17 May 2003 • conversations with the applicant re - hours of work • applicant’s comments on his intention to “quit” his employment • witnessing the applicant writing the letter requesting his hours be reduced (page 138, line 1 of transcript): “Merrell: So am I correct in suggesting, Ms Sagar, that the note that Anthony wrote wasn’t ripped out of any book? Sagar: Of notes, not ripped out of a book. Merrell: Am I correct in suggesting, Ms Sagar, that you were making that up about the book being at the front counter and him ripping it out of the book to write in? Sagar: No. Merrell: Am I correct in suggesting, Ms Sagar, that you weren’t present for all of the time he wrote the note out; isn’t that the case? Sagar: No, I was present.”. Haack Mr Haack was formally employed as a business manager with Night Owl and in that capacity assisted the Khanna’s at the time of their purchase of the business. Included in that assistance was the preparation of the staff roster. He did not recall the applicant complaining about working a 50 hour roster and when Ms Khanna contacted him at the beginning of April 2003, advising him that the applicant was not handling his workload and had requested a reduction to casual status, he was surprised. Ms Khanna gave reasons relating to the applicant wishing to enter the military and of telling staff he would quit if he did not get reduced hours, as the basis for the change. Mr Haack emphasised that any request for a reduction in hours should be in writing before being agreed to or implemented. The same conversation was held with Ms Khanna a week or two later with him giving identical advice. His evidence was, at no time, did he direct Ms Khanna to vary the employment conditions of any employee without their permission, including the applicant. Cross-examination Cross-examination of the witness included points such as: • various forms of advice given to the Khanna’s • preparation of roster • applicant’s complaint re - 50 hour week (page 144, line 38): “Merrell: Sure. So when you say there you don’t recall Anthony complaining of not wanting to work a 50 hour roster - -? Haack: Yes. Merrell: - - am I correct in saying that you’re not – you’re not denying that he ever made such a complaint; all you’re saying is that he never made any mention of that to you? Haack: Absolutely. I can only say that there was nothing ever mentioned to me personally - - “. • Casual employment and hours Chiman Khanna Mr Khanna gave evidence of his role within the business as a Director and of the circumstances surrounding the purchase of the Albert Street Store. Included was reference to a condition of the Sale where he had agreed to offer all (the then) current employees a position. The applicant was interviewed and offered 50 hours per week at the rate of $613.00 gross per week. The applicant sought reduced hours but the request was denied. Employment of the applicant commenced on or around 3 March 2003 which coincided with the business being taken over. At no stage did the applicant directly tell him of his intentions to join the Police force and when advised by his daughter that he saw no problem. -- 4 of 10 -- 36 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 May, 2004 The applicant was paid under the exemption rate in the Retail Industry Interim Award – State, and according to the witness, never sought to access a copy of the Award from the employer. On the issue of the applicant wishing to reduce hours at paragraphs 23 and 24 of his affidavit the witness stated: “23. On or about 18th April 2003 I was working in the back office with my accountant when Mr Elliott came into the office to get a pen and paper. He then took them away for a few minutes, returning to present me with a letter he had apparently just written, asking for a reduction in hours. I was unsure what was going on so I gave the note to Shivani. Shivani then took the note over to him and they started talking about its contents. 24. Shivani later mentioned that Mr Elliott had problems with his hours and was considering casual employment. Shivani asked me what to do because she did not want him to quit and I told her to contact our Night Owl Business Manager for advice.”. Cross-examination Cross-examination of the witness went to a range of issues including: • applicant’s hours of work • conditions of sale/purchase of the business • applicant seeking copy of the Award • applicant’s duties as a full-time and casual employee • treatment of applicant on becoming casual • letter written by the applicant seeking a reduction in hours (page 156, line 32 of transcript); “Merrell: It was a blank sheet of paper? Khanna: Yes, it was computer paper. Merrell: Computer paper. Might Mr Khanna, Commissioner, please see Exhibit 5. Now I will ask you some questions about the content of the letter, but the piece of paper that Mr Elliott retrieved, it was a piece of paper like that, a piece of computer paper? Khanna: Like that, yes. Merrell: Can you hand that back to the Commission’s associate, please. You then say – just going back to paragraph 23, Mr Khanna, you then say, ‘He then took them away for a few minutes, returning to present me with a letter he had apparently just written asking for a reduction in hours’. You then say, ‘I was unsure what was going on, so I gave the note to Shivani’. Now Shivani is your daughter, is that right? Khanna: That’s correct.”. Shivani Khanna The final witness for the respondent, Ms Khanna, is both a Director and Store Manager of the Albert Street Night Owl store. Her evidence initially went to the employment of the applicant and then to his request to work less hours. Ms Khanna stated that she refused the request for less hours, however when a new store opened at Woolloongabba, she had been prepared to offer the applicant a 38 hour week position. In the meantime, an offer was made of a maximum of 18 to 20 casual hours if the applicant did not want to remain on the 50 hours per week roster. Following information given by Ms Sager that the applicant may be considering leaving employment, the witness sought advice from Mr Haack in respect of the possibility of changing the applicant from full-time to casual employment. Mr Haack, according to the witness, advised that if the applicant wished to change his employment status, then such request should be in writing. At a time when the applicant was absent form the store, the witness had a conversation with Mr Huntley on 12 April 2003 where she was informed that the applicant still had concerns about his hours of work. The following day the issue of a letter requesting a change in hours was raised with the applicant and, according to Ms Khanna, she eventually received a letter written on 18 April 2003 by the applicant to have his hours “cut back” to 38 hours per week. At paragraphs 62 and 63 of her affidavit, the witness’s evidence went to the abovementioned letter: “62. I approached Anthony and said that he had never been working 38 hours so the word ‘back’ was not correct. Anthony agreed and changed his letter, initialling the change. I again clearly said to Anthony that the agreement we had reached was for 12 to 20 hours casual until the Woolloongabba store opened. Anthony again agreed. 63. I did not ask Anthony to make a second change to the note about our 12 to 20 hours short-term agreement because he verbally assured me that he understood that the casual hours would be in place until the Woolloongabba store had opened. I was happy enough to finally have the written request for a reduction in hours.”. The applicant commenced work on 21 April 2003 as a casual, working in that capacity for the next four weeks. There were ongoing disagreements over a range of matters, including the applicant’s refusal to work public holidays in the period. -- 5 of 10 -- 14 May, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 37 The applicant, whilst a casual, had on one or possibly two occasions, requested to see a copy of the Award and was told by the witness that she was not sure if they had a copy or not. On 15 May 2003, the applicant telephoned her form the store advising that he wished to quit. He went on to say in an abrupt manner that he was not happy about changes to his hours or the reduction in hours. The witness claimed that whilst in the process of explaining matters to the applicant, he hung up on her. Later that day she diarised the telephone conversation. Cross-examination Cross-examination of Ms Khanna was extensive and touched on matters including: • offer of employment to the applicant (page 176, line 45 of transcript): “Merrell: - - But just in terms of the wages and the hours per week, the offer form your company to Mr Elliott was, ‘This is the offer, Anthony, $613, 50 hours per week - -’? Khanna: Yes. Merrell: ‘ - - take it or leave it.’? Khanna: Yes. Merrell: That’s the case? Khanna: Yes.”. • rosters • availability of the Award • non-payment of penalty rates (Easter public holidays) to the applicant • contact with Mr Haack over applicant wanting to (allegedly) revert to casual employment • reduction of applicant’s status and hours • letter from applicant requesting reduced hours (page 208, line 15): “Commissioner: What day was it? Khanna: It was a Friday or a Thursday, sir, I’m not too sure but I – I work six to 10 on Thursday, Friday and Saturdays. Merrell: A Friday or a Thursday that he wrote the letter out? Khanna: Yes, sir. Merrell: What time of day do you say that he wrote the letter out? Khanna: I really wouldn’t know because when I told him to write the letter, I said to him, ‘I’m counting up my till, Anthony, I definitely do need the letter’. And then he wrote – he never wrote it in my presence, so I wasn’t really there when he - - Commissioner: Was there anyone else there with you when you said this to him? Khanna: No, sir, I was handing over a shift to him. Commissioner: So it’s just you and Anthony? Khanna: Yes. I really - - Merrell: So Ms Sagar wasn’t present? Khanna: I don’t think she was, no. But when I did make – make Anthony make the change I wouldn’t be able to tell who was there but when I walked out it was pretty much full the shop, so I can’t say if there was anybody there at the time. Merrell: You know that the 18th of April was Good Friday? Khanna: Yes, sir, I do. Merrell: So you’re not sure what time of the day that the letter was written? Khanna: No, sir, I just told him, ‘Write the letter, Anthony’. He said, ‘What do you want in the letter?’ And I said to him, ‘Exactly what I wanted’.”. • casual hours offered to the applicant -- 6 of 10 -- 38 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 May, 2004 • applicant’s resignation • Ms Sagar’s diary entry Re: applicants resignation Final Submissions Submissions were provided to the Commission in written form with each party also having an opportunity to address the Commission on the content of the submission. Applicant Mr Merrell’s outline of submissions went to some 30 pages and addressed a significant number of points under the following headings: • Background • Respondent’s case • Applicant’s case • Matters of credit • Industrial Relations Act 1999 • Demotion • Constructive dismissal • Remedy • Conclusion. In addition, further matters were raised in the course of the oral submissions. Mr Merrell also relied upon a number of authorities in respect of the various points highlighted in the submission. In terms of the applicant’s departure from employment, two scenarios were addressed, firstly the aspect of the demotion from a 50 hour per week full- time employment arrangement, to that of a casual and secondly, that a constructive dismissal had occurred as a result of actions by the respondent. In respect of the remedy, should the Commission accept the position of the applicant, it was submitted at paragraph 82 of the outline that reinstatement or re-employment of the applicant was not capable of being put into practice or feasible in the circumstances. In determining an amount of financial compensation, argument, accompanied by a plethora of authorities, was advanced on behalf of the applicant. The claim was based upon the applicant’s rate of remuneration at the time of termination which was an amount of $613 gross per week. At paragraphs 93, through to 95 (inclusive), various calculations were set out which related to each of the modes of termination previously referred to in the submission: “93. As a result, the Applicant’s total loss is $24,890 less the amount of $1,397.08 paid to the Applicant by the Respondent after 21 April 2003 which amounts to $23,492.92. 94. Applying the statutory cap in s.79(2)(a) of the Act, the amount of compensation is $15,938.00. 95 In the alternative, if the Commission concludes that the Applicant was constructively dismissed on 15 May 2003, then the Applicant’s loss is $613.00 per week from 15 May 2003 until 17 November 2003 plus the credit card and loans losses referred to in paragraph 73 hereof. This amounts to $22,438.00. Applying the statutory cap, the loss is $15,938.00.”. In conclusion, it was submitted that on the evidence the Commission should find that the applicant was dismissed on either 21 April 2003 or 15 May 2003 and that his dismissal (in each case) was unfair. Respondent Mr Matley, on behalf of the respondent, provided an outline of submissions document, containing within a secondary submission, of some 52 pages in total length. Matters addressed fell under the following headings: • Introduction • Summary of evidence presented • Applicant witnesses • Respondent witnesses • Alleged repudiation of the contract of employment • Argument summary • Agreed facts • Issue for the Commission • Relevant case authorities • Application of relevant case authorities • Alleged repudiation of the contract of employment: conclusion • Alleged constructive dismissal • Argument summary • Agreed facts • Issue of the Commission • Relevant case authorities • Distinguishable case authorities • Alleged constructive dismissal: conclusion • Concluding comments. -- 7 of 10 -- 14 May, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 39 Secondary Submission • Introduction • Repudiation of the contract of employment • Argument summary • Agreed facts • Issue for the Commission • Relevant case authorities • Application of relevant legislation and case authorities • Repudiation of the contract of employment: conclusion • Constructive dismissal • Reinstatement defence • Argument summary • Relevant case authorities • Application of relevant case authorities • Reinstatement defence: conclusion • Compensation defence • Argument summary • Relevant legislation • Relevant case authorities • Application of relevant case authorities • Compensation defence: conclusion. The submission also went to the modes of termination advanced on behalf of the applicant and disputed that the reduction of hours was not a valid argument, in that the evidence of the applicant could be weighted sufficiently to indicate that he did not have the capacity to perform the full-time, permanent role required by the respondent. On the alleged constructive dismissal, the submission, at clause 4.7(x) stated: “The overall question for the Commission regarding the alleged constructive dismissal is: Did the employer behave in such a way as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite, on the face of it, the employee appears to have given his or resignation (Allison v Bega Valley Council IRC 116 of 1995, 1 September 1995)? The respondent submits that the Commission, on all the facts, cannot answer in the affirmative to that question.”. As was the case with the applicant’s submission, a number of authorities were relied upon by the respondent to support their position. On the issue of remedy, should the finding of the Commission go against the respondent, it was submitted that any financial compensation should be of a minimal amount. A number of reasons were offered as to why this should be the case which included: • Length of service • Time taken by the applicant to activate the matter to hearing • The failure of the applicant to take reasonable steps to mitigate his loss. It was the position of the respondent, in essence, that the application should fail. Conclusion In determining whether the applicant had been dismissed in a harsh, unjust or unreasonable manner, the Commission, in this matter, was first required to decide whether a dismissal had occurred in the first instance. The applicant provided both evidence and submissions in respect of two possible scenarios, each of which had the employment being terminated at the hands of the respondent. Firstly, it was argued that the demotion of the applicant from a 50 hour per week full-time position to that of a casual, working significantly less hours was, in effect, a termination. There was at least a consistent strand, from both parties, in evidence that the applicant wished to have his hours reduced, however the letter (Exhibit 5) generated by the applicant is clear and concise in requesting that he be provided with 38 hours per week on a full-time basis. The applicant gave further evidence that the letter was written in or around May 2003 and that the date of 18 April 2003 on the letter was there as a result of a request form Ms Khanna to backdate the correspondence for reasons relating to superannuation. The letter, in full, states: “Charlie and Shivani. I wish to advise you that due to other commitments I am unable to continue employment under our current 50 hours per week arrangement. I would like to be cut to 38 hours per week on a full-time basis. Your assistance in this would be greatly appreciated. Anthony Elliott [Signature] 18/4/03.”. The respondent’s argument was that the letter was written on 18 April 2003 and provided by the applicant prior to his commencement of casual employment. In the view of the Commission, the letter itself is a most critical factor in assessing the change in the applicant’s employment status. The evidence on the writing of the letter from both Mr and Ms Khanna and Ms Sagar was not at all consistent with each having differing recall of the event. -- 8 of 10 -- 40 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 May, 2004 The Commission does not accept any of the three (3) respondent’s witness’ evidence relating to the formulating of the letter in question. Mr Khanna’s evidence simply falls down on the basis that he had no direct involvement or knowledge of the applicant writing the letter and simply relied upon information supplied to him by his daughter. The version advance by Ms Sagar was not accepted, in that, on the balance of probabilities she was most likely not present, as was her evidence, at the time the letter was written. Ms Khanna, in the view of the Commission, gave conflicting evidence as to events leading up to the drafting and subsequent writing of the letter to the extent it would not be safe to accept her evidence. Additionally, there was an inconsistency in regards to the type of paper used by the applicant, that being it was put on one hand that the paper had been taken from a spiral bound book and then from Mr Khanna that it had been computer paper with the latter being the correct position. In respect of the content of the letter, there is no ambiguity in the request contained within, that would allow a reasonable person to conclude that the applicant was seeking to become a casual employee. The use of the word “full-time” requires little further comment, as it is self explanatory. The evidence given by the applicant regarding the letter is in the view of the Commission accepted as an accurate account of what transpired at the time. On acceptance of the applicant’s evidence, it follows that the finding of the Commission can only be that there was not a request either in writing or for that matter verbally by the applicant to be changed to casual employment. The change that occurred was a unilateral decision solely on the direction of the respondent and more particularly that being Ms Khanna. The Commission finds that a demotion of the applicant’s employment status from full-time to casual did, in effect, occur and in reaching such a finding is attracted to an authority presented in the proceedings by Mr Merrell at page 19 of his outline of submissions: “In Castellana v Byrne Ford Pty Ltd Commissioner Fisher, in considering this issue stated as follows: ‘…. In Advertiser Newspapers Ltd v the Industrial Relations Commission of South Australia and Grivell (1999) 90 IR 211, the Full Court of the Supreme Court of South Australia considered whether a demotion constituted a dismissal under the Industrial and Employees Relations Act 1994 (“the SA Act”) in circumstances where the employee protested the demotion but continued to work for the employer in the job to which he was demoted. The judgment of Bleby J, with whom Doyle CJ, and Martin J, agreed, provides a useful discussion about the repudiation of a contract of employment by either an employee or an employer and the circumstances where a repudiation could constitute a termination at the initiative of the employer so as to enliven the dismissal jurisdiction under the SA Act. Section 107 of that Act required the Commission to have regard to the termination of employment convention whether a dismissal was harsh, unjust or unreasonable. At the time of the decision the Act did not however adopt the terminology of the convention nor did it import any definitions from the convention. Given that the South Australian dismissal jurisdiction did not take its colour from the ILO convention, I consider the decision in Advertiser Newspapers to have relevance to dismissals considered under the Industrial Relations Act 1999. …... Where an employer repudiates the contract and this is accepted by the employee there is again a dismissal. The same question about the fairness of the dismissal could then be asked. Even where there is a subsequent re-engagement of the employee by the employer under a fresh contract of employment, there will still have been a dismissal by the employer. Applying these principles to the present matter, it is the case that a dismissal at the initiative of the employer has occurred so as to enliven the dismissal jurisdiction of the Commission. Accordingly, the Respondent’s jurisdictional issue is dismissed. I shall now proceed to determine whether Mr Castellana’s dismissal was harsh unjust or unreasonable.’.”. The demotion of the applicant, for all intents and purposes, had the effect of repudiating the existing contract of employment and therefore, the applicant’s employment, as such, was terminated by the respondent on 21 April 2003. The Commission then needed to address whether the dismissal was in the circumstances, harsh, unjust or unreasonable. The applicant had never sought casual status and the effect of the change was clearly detrimental to him in relation to his remuneration and duties he then, as a consequence, had to undertake. A clear lack of proper process by the respondent left the applicant exposed to a “take it or leave it” situation which then quite comfortably fits into the category of being harsh, unjust and unreasonable. Having made the abovementioned findings it is not necessary for the Commission to visit the matter of the constructive dismissal. Before going to the issue of remedy, the Commission would take the somewhat unusual step of making some comment in respect of the overall credibility of the witnesses that appeared in the proceedings. The Commission would place on record that only two witnesses in the proceedings gave evidence that could be regarded as credible and, to some extent, helpful and truthful. Those witnesses are identified as Mr Elliot (the applicant) and Mr Haack, whose evidence was adduced on behalf of the respondent. In the case of the applicant’s evidence, as the principle witness, his evidence was crucial to the prosecution of the application whilst Mr Haack’s evidence was, at best, peripheral to the defence of the application. Remedy In matters such as this application, the Commission is required to consider s. 78 and s. 79 of the Act when deciding upon an appropriate remedy. In respect of s. 78, which goes to reinstatement or re-employment, both parties have submitted that either option is not “in the scheme of things” a practicable outcome. -- 9 of 10 -- 14 May, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 41 The Commission, having heard the evidence, and witnessed the demeanour of the parties, has little difficulty in accepting the arguments of the parties and concurs with their positions. This leaves the Commission to consider an award of an amount of compensation in accordance with s. 79(a) of the Act, not in excess of six (6) months pay an employer would have been liable to pay the employee at the rate received immediately before the dismissal. The positions of the parties were “poles apart”, with the applicant seeking an award at the top end of the scale and the respondent arguing that a minimal amount be paid. The respondent relied upon a decision of the Commission, as constituted, in Raby v AEC Electrics Pty Ltd (No. B1081 of 1999) where the Commission, at page 5 of the released decision, said: “In this matter, the applicant held full-time employment with the respondent for a period of some nine (9) months only, and despite the harshness of the way in which the termination was affected, this, in my view, does not necessitate the awarding of what might be regarded as a significant amount of compensation, and on this basis, I order that the respondent pay the applicant a gross amount of $2,500 within 22 days of the release of this decision.”. The period of employment, in this case, was markedly less than the nine (9) months mentioned in the Raby decision, and, whilst an argument may be advanced on that point, a reading of the Act will show that the length of employment is not identified as a mandatory point that forms the basis of reaching a quantum when making a monetary award of compensation. The Commission, with direct involvement in both the Raby matter and this application, is well placed to consider the circumstances of each matter. The evidence before the Commission has been sufficient for the Commission to conclude that the events leading to the demotion/termination of the applicant were of a nature that falls in the category of harsh, unjust and unreasonable, to the extreme. The abandonment of due process and the loss of subsequent income at the end of the applicant’s employment, and ongoing for some months onwards, was significantly detrimental to the applicant. In respect of the mitigation of loss argument, there was evidence from the applicant that he obtained a form of employment, on a commission only basis, which had not netted him any income whatsoever and further evidence was put forward that he had unsuccessfully sought alternate employment. On the issue of the delay in seeking to have the matter heard, it is enough to state that the applicant has a statutory period of six (6) months from the receipt of the Certificate issued, in accordance with s. 75(3)(a) of the Act to instigate further action and the applicant did, in fact, comply with that requirement. It is the intention of the Commission to award an amount of compensation at the higher end of the scale and, accordingly, the NC Mart Pty Ltd is ordered to pay Mr Anthony Elliott a gross amount of $9,808, being based on sixteen (16) weeks’ pay at the rate of $613 per week. The payment is subject to the appropriate taxation deductions and should be made within 22 days of the release of this decision. I order accordingly. J.M. THOMPSON, Commissioner. Hearing Details: 2004 17 and 18 March 7 April Appearances: Mr J. Merrell, of Counsel, for the Applicant. Mr D. Matley, of Queensland Retail Traders and Shopkeepers Association (Industrial Organization of Employers), for the Respondent. Released: 29 April 2004 -- 10 of 10 --