Davis v Richard Ellis Retail Management Pty Ltd [1997] QIRC 157 (1997) 154 QGIG 1316

1316 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE ----------------------------------2~4~April, 1997 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSI0'.'-1 lndu1tria/ Relations J\ct 1990 s. 295 application for reinstatement Darrell Kelvin Davis AND Richard Ellis Retail Management Pty Ud (No. B1830 of !Y96} COMMISSIONER NUTrER 11 April 1997 Termination of Emplo 1 1 o· · 1 . . yn en 1sm1ssa Reinstatement Compensation __ Evidence -, Arbitrated Maue, Absent Without Leave Serious Mis~onduct Yahd Reason Apphcat1on D1sm1ssed - Application for Co~ts Granted. DECISION T~e applicant. Darren Davis, commenced employment as rhe Opeiauons Manager Wl!h Richard Ellis Retail Management Pty. Ltd. (the ~~rindent) at the Cane land~ Shopping Town, Mackay on 21 February . He was disnussed from employment on 4 Octoocr 1996 after alleaedly bemg absent \Hthout leave from 23 to 27 Septemocr 1996. "' The respondent manages the Shopping Centre on behalf of the owners Suncoip. The Operations Manager has the responsibility for:- answ_ering tenants complaints and queries including air condittonmg complaints and defects: control of the Centre's sccuri ty; control of cleaning of the Centre; ,md general repairs and maintenance of the Centre, It wa~ acknowledged in evidence that the po~ 1tion of Ope,ation, Ma,~ager was a sernor and very responsible position and that from time to time the apphcant was called after hour~ 10 deal wi"h prob!, emergencies which arose at the Centre. . ' ' um or 24 April. 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETIB 1317 The evidence of the applicant v,,as that he travelled to Indonesia on the v.-eek-end of 21 September to attend a job interview. He stated that he intended to return to Australia on the fol\()wing Monday. However, he was initially delayed until the Wednesday and at the request of the potential Employer delayed that further to look at a Centre. The result was that he didn't recommence work at Caneland~ until the following Monday. He was absent without leave for a period of one week The applicant 111dicated that prior to leaving for Indonesia he attempted unsuccessfully to contact Gary Hicks, the Centre manager, but was unable to do so He said he asked his wife on the night of Sunday 22 September (when he was 111 Indonesia) to contact Mr Hicks and finally contact was made on the evening of Monday 23 September. No note was left by the applicant for Mr Hicks at the Centre prior to his leavmg for Indonesia Gary Hicks gave evidence that he was appointed Centre manager at Canelands on 16 September 1996. The first v.-eek after his appointment had been spent 111 conferences with representatives of the Centre's owners. He intended spending time with the applicant in the following week to become familiar with the Centre, although no specific anangemems were made. When the applicant did not arrive on Monday morning 23 September, he attempted le> telephone him at home and subsequently found the applicant's wife's work number and left a message There i~ evidence from both Mr Hicks and the applicant's wife of attempts to contact each other Contact v,,as finally made on the Monday evemng. Both the applicant and Mr Hieb confirmed that a telephone conversation took place hetween them in the afternoon of Tuesday 22 September. The applicant confirmed that he had gone to Indonesia to apply for a job. He" indicated that he had been asked to prolong his stay to see the Centre and meet the owners and would not be returning until the following Monday. Mr Hicks advised that he had not directed the applicant to return earlier as the advice had been given, not in the form of a request, but as a decision already taken Mr Hicks stared that he wa~ annoyed with the applicant taking leave without approval at such a time and indicated that he would discuss the situauon on the applicant'~ return The applicant did indicate that if he got the _1ob, he would give 011e month', notice of re~ignation \11 Hick\ adviscd that he reported the: ab-,cncc of the applicant to the Portfolio \1anager who. in tum. repolled to Suncorv On hi~ return on 30 September the applicant met with Mr Hicks and advised that he was not aware a~ w whethe1 his job application had been successful. However, he seemed confident The applicant said the money was too good to refuse. Mr Hicks acknowledged he took no further action at that time expecting that the applicant would be resigning in any case and he (Mr Hicks) needed to obtain information from the applicant regarding the Canelands Centre. Alas. it was not to be The app\icant was unsuccc~sful with bis _j()b application. He ;.dvised Mr Hicks. Mr Hich di!->CUS'ied that matter with the Portfolio manager and ag1t:ed wnh him that they could not allow the applicant tu continu-.' in employment as Operation~ Manage1 The pos;ition required a high level of trust and confidence which they no lunger had Mr Hicks terminated the applicant on Friday 4 October 1996. The details of the conversation as provided by Mr Hicks had words to the effect:- ·'] had expected it If I were in your shoes, I would have done the same When do you w,ml me tu finish up)" In the version by the applicam. it was inferred that the word~ were in response to advice that Mr Hieb wa" getting pressure from the Ponfolio \tanager IO terminate the applicant Mr Hicks denied this was the case. It was a decision he had taken, he said, in consultation with the Portfolio Manager The applicant indicated that he had submitted a leave form for the period of absence after his return at the request of Mr Hicks Approval of the leave had been granted and he should therefore not be dismi.s..<.ed for being absent. Mr Hicks said that the application form had been completed after the termination of the applicant The purpose of this was to ensure that the applicant would not be paid for the time off when the final pay wa~ computed. Evidence was provided by a witness to indicate that this was probably the case although the point does not have a significant bearing on the decision. The applicant attempted to bring forward instances where other staff had been absent for short periods but no evidence was fo11hcoming where prior approval had not been granted apart from sick leave and the like. The applicant also referred to a reference received from the C~tre Manager and to advice given to other contractors advising that the applicant had resigned. I am satisfied that this was primarily done in the applicant's rnterest to prevent embarrassment. Conclusions All the evidence provided has been considered in arriving at a detem1inatio11. The evidence was generally consistent. The fact of the matter is that the applicant took unapproved leave without pay from the Centre for one week for the purpose of obtaining another position. During this period, he had a responsibility to the respondent to be working at Canelands Centre. I am satisfied that the applicant wa, aware that he would not be able to return to work by the Monday and most likely later in the week. I am satisfied that for his purposes (enhancement of his job appltcation1 he extended his stay to the end of the week. This seriously inconvenienced the respondent. The applicant occupied the important position of Operations .'\.1anager. The non-fulfilment of this duty constitutes a breach of the contract of employment and good faith to the respondent I arit satisfied that a valid reason exists pursuant to s.291 (I) based on the conduct of the applicant Wa, the dismi~sal harsh, unjw,t or unreasonable pur:c,uant 10 s. 291 C)" The applicant knowingiy took the leave without approval He ~hould have he.en aware of the consequence~ He took that leave al a time when a new Centre Manager, who would not be fully aware of the Centre·" operations, had recently l:>et'n appointed Whether he attempted to contact the Manager beforehand was inconsequential. If he had, I am ,at1sfied leave would not have been granted for the purpose sought. He would have known that the new Manager could have been placed in a very difficult position. For example. at that stage, according to Mr Hicks, the applicant was the only full time employee at the Centre with a thorough knowledge l•f the fire alarm system. In the discu~~ions between the applicant on his return and Mr Hicks. the applicant acknowledged that the situation was very ten;.e and he was conccmL'd about his JOb On Mr Hick'~ version. the applicant expected that he might be di~mi~~d On the evidence of M Camilleri, the applicant allegedly said to her - ·T ve just llCt'n foed, I fully expected it. I was going for big money. toek a gamble and lo~t " The applicant disputes the wording. However, 1 am sati~fied that words to that effect were used. The situation was that the applicant rook the ri<;k and must have expected that the respondent might take action. Mr Hicks for the respondent indicated that the respondent had lost trust and confidenn: in the applicant and therefore tenninated his employment 22999-1 DOC -- 1 of 2 -- 1318 QUEENSLA~D GOVERNMENT INDUSTRIAL GAZETTE 24 April, 1997 The respondent in terminating the applicant did not summarily dismiss but gave the applicant four weeks notice. The applicant worked one week out and took three weeks pay in lieu of the remaining three weeks of lhe notice penod. I am satisfied that in all the circumstances the termmation was not harsh, unJust or unreasonable Acco1dingly, I dismis~ tile application. I should say however that l had some sympathy for the applicant. He occupied a semor and responsible posillon He apparently earned out his duties at the Centre in a competent and professional manner. He worked out of hours as required. However, this does not detract from what occurred which resulted in his dismissal Mr Bennett for the respondent sought an order for com against the apphcam The Commission was referred to an open letter from the respondent's solicitors to the applicant's sohcttors dated 20 December 1996 makmg a first and final ofter of $2000 10 settle the matter and indicating that if the matter proceeded to hearing and !heir client was succe,sfuL the letter wuuld he used in an argument for costs Mr Bennett staled that the Commission had power to award costs pursuant to s. 300 where the application wa~ frivolous and vexatious or under s. I 06 where the Commission ce1tifies that it was in the 111teres1s of justice that counsel, solicitor or agent, as the case may oc. should be heard. He mdicated that al all stages up until the actual heanng both parties were represented by a solicitor Mr Bennett abo referred to the Commission's changing attitude in relation to the awarding of costs. Reference was made to decisions by MacKenzie J. in Goldman and Dwa-<,ntemf Au.11m/i(1 Pty /Jd ( 1993) 144 QGIG 379 in which it wa, -;aid that there was a policy in only awarding costs in frivolous, vexatious and abnormal circumstances but that the discretion of the Commission must not he tellered and to De iersey J. in Toowoomha Citv Council, .\dwrmbrer;; ( 1986) 153 QGIG 541 where he spoke about dismi~sals being akin to "party to party" litigation De Jersey J. distinguished the Commission from the Court by say 1ng. - "The position 111 the Cou,t 1s often different because ot the general practice of the parties appearing in Court through legal representatives ,. However, in this matter. up to the date of the hearing, the pa1ties were represented by their legal representatives Reference was al-.o made to a decision of Chief Industrial Commissiont>r Hall iu which he quoted with approval a decision in Kanan v Au.1tm/wn Postal and TelecommuniL ationr Unum ( 1992) 43 IR 257 al 264/5 in which it was suggested by Wilcox J. a practical test for determining, in a particular case, was whether a proceeding was instituted without reasonable cause: ''It seem~ to me that 011e way of testing whether a pwcecding is mstituted 'without reasonable cause· is w ask whether, upon the facts apparent 10 the applicant at the time of instituting the proceeding, there was not substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inapprnpriate to s1igmati1,e the proceedings as being 'wi1hou1 reasonable cause' But where. on the applicant's own vef',ion of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause." ll was the submission of Mr Bennett that the applicant had ample opportumly to be told that the application had little likelihood of succe<,s There had been two conciliation conferences. The applicant had legal advice but seemed blind to the reality of the situation. On the applicant's own version of events, it was clear the application would fail. Mr Bennett stated if costs were not awarded, the result would oc a serious inJustice to the respondent who believed 1t had an open and shut case but wa~ prepared to offer S2000 to settle the matter. The applicant in hi\ defence -.;takd that he believed at all time\ he was in the right and had a good case. I le said that legal adnce obtained from different sources all indicated he would he successful. That advice had been received as late as the morning of the second conference before the Comniission on 20 March 19%. ii was mdicatcd by the applicant that at the time the settlement offer had been received from the respondent's solicitors, legal costs of $1500 had alreadv been mcurred. The applicant also indicated that having regard to his pre,ent circumstances, he would not be in a position to pay costs if awarded by the Comm1ss1on. It is ialher surprising that, in what turned out to be a simple case, the applicant was receiving advice that his application would be successful In one case it was said to him lo be unlomblc. Perhaps the full circumstances were not available to some of those advising the applicant. Notwithstanding the advice received. it would he unfair to the respondent not to award some costs as the application should not have proceeded to hearing. In my view, on the facts of the case a, provided in the statements beforehand which were made part of the evidence, it was clear the application had no prospects of success, The mere fact that the applicant rnay feel aggrieved does not entitle him to bring the matter forward and expect that costs will not be awarded. I do not believe, however. that the application was taken for frivolous or vexatious reasons. I am prepared to certify under s. I 06 that in the interests of ju~tice a solicnor should he heard. Up to the date of hearing both parties were represented by solicitors. At the hearing itself, the applicant chose to take his own ca-;e. The respondent sought costs of legal representation ha~cd on the Magistrates scale together with travel and accommodation co~ts. In all the circumstances, I order that the applicant pay to the respondent m1 amount of $3000 tnwaids cm,t, incurred by lhe 1c1,pondenl In view of the economic circumstances of the applicant, I further order that $1500 he paid by no later than 30 June 1997 with the remamrng $1500 to be paid by 30 September 1997. B. J. NUTTER, Commissioner. Appearances: Mr Darrell Davis 011 hi~ own behalf. Mr S. Bennett of Dunhill Madden Butler for the respondent. Operative Date: N/A Decision: Reinstatement Released 11 Apnl 1997 ########################################################## -- 2 of 2 --