WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Tania Blackwell and Prime Holdings Pty Limited trading as Phoenix Hotel. No. 56 of 1989. COMMISSIONER S.A. KENNEDY. 29th day of June 1989. Reasons for Decision. COMMISSIONER: This application was filed pursuant to section 29(b)(i) of the Industrial Relations Act 1979. By it Ms Tania Blackwell claims that she was unfairly dismissed by the respondent. She seeks an ,order from the Commission that she be re-employed and be paid an amount equivalent to the contractual entitlements she would have received from the date she was dismissed to the date of such re-employment. The applicant claims that she was dismissed on Saturday the 7 th day of January 1989. This application was filed on the 9th day of January 1989 and the declaration of service is to the effect that it was served on Mr Ron Morellini for the cited respondent on the 10th day of January 1989. No answers were filed by the cited respondent within the period provided for in the WA Industrial Relations Commission Regulations 1985 as amended. A conciliation conference pursuant to section 32 of the Act was set down for the 10th day of February 1989 before the Commission as constituted. Notices of the conference were forwarded to the applicant and the cited respondent on the 3rd day of February 1989. That conference was held but no resolution of the matter was reached. The Commission directed the parties to have further talks. Subsequently both parties informed the Commission that the matter was unresolved. On the Nth day of February 1989 the applicant requested that the matter proceed to hearing. The cited respondent filed answers to the claim on the following day. These are as follows: 1. The Applicant was at all material times (an) employee of the Respondent. 2. The Applicant was employed as a casual bar attendant pursuant to the terms of the Hotel and Tavern Workers' Award 1978. 3. The respondent denies that the Applicant was ever engaged on a permanent basis. 4. The Respondent says that following a period in which the Applicant relieved, on a temporary basis, another employee of the Respondent, the Respondent did not offer the Applicant a fresh engagement as a casual employee due to economic downturn in the Respondent's business. 5. The Respondent therefore in view of paragraph 4. denies that the Applicant was dismissed and says the claim is beyond the jurisdiction of the Commission. 6. The Respondent says in the alternative, if the Commission finds it has jurisdiction to deal with the matter that in all the circumstances the dismissal was not harsh or unfair and the Respondent objects to and opposes the claim. The question of jurisdiction is dealt with first. Section 29(b)(i) for the purposes of this matter reads as follows:— An industrial matter may be referred to the Commission — (b) in the case of a claim by an employee — (i) that he has been unfairly dismissed from his employment: or (ii) ... by the employee. That is to say that for the Commission to exercise power pursuant to the Industrial Relations Act 1979 in consideration of a claim filed in reliance on section 29(b)(i) of the Act, it must be satisfied that the claimant is an employee and that the claimant has been dismissed by the employer with whom he had a contract of service on foot at that time. The parties agree on some facts. These are as follows. Ms Blackwell was first employed by the respondent in March 1988. That employment was of a casual nature and was as a bar attendant. From that time until early in December 1988, Ms Blackwell worked for the respondent as a bar attendant and, on occasions, in the kitchen of the respondent's restaurant within the hotel doing other work. At all times she was paid casual rates worked. In December 1988 Ms Blackwell was asked by the respondent to work in the kitchen. The impetus for this appears to be the temporary absence and/or impending absence of another employee. Ms Blackwell agreed to this proposal and from that point until approximately 10.00 p.m. on the 7th day of Janaury 1989 she worked regularly in the kitchen area carrying out such duties as washing up dishes, serving up meals, cooking and other general duties. The evidence is that she was paid at a casual rate for all such hours worked and the applicant agrees that throughout this period her employment was always of a casual nature. The fundamental issue between the parties so far as the question of jurisdiction is concerned does not go to any employment relationship between Ms Blackwell and the respondent in the period March 1988 to 6 January 1989 at all. It is whether a new contract of employment was entered into between the applicant and the respondent on the 6th day of January 1989. The applicant claims that there was and that it was terminated, summarily and unfairly, by the respondent on the 7th day of January 1989. The respondent denies that there was any contract of employment entered into on the 6th day of January 1989 between it and the applicant and that what transpired on the evening of the 7th day of January 1989 so far as Ms Blackwell and a work relationship with the respondent was concerned was simply the respondent informing Ms Blackwell at the end of that particular casual contract of employment that she would be offered no further contracts of employment by the respondent. Thus according to the respondent, there was no dismissal pursuant to an existing contract of employment and thereby no jurisdiction. The question of whether or not on the 6th day of January 1989 a contract of employment was offered by the respondent to Ms Blackwell is one which goes to fact. Ms Blackwell's evidence on this is as follows. While she was working as a casual kitchen hand and cook on that date, the head cook (Janice Gale) asked her if she was interested in a permanent part-time job in the kitchen working 23 hours per week. Her answer was yes. Subsequently on the same date it is her evidence that Ms 69 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2155 Gale approached her and told her that following discussions with the hotel manager, a Mr Bain, and with the bookkeeper (Bette Wing), she was in a position to offer Ms Blackwell a permanent part-time position with the respondent, and she proceeded to do so. The terms of that offer included 23 hours of work each week on specified days and at set times commencing on the 9th day of January 1989 and carrying out duties in the kitchen, with a weekly rate of $187 nett. Ms Blackwell told the Commission that she accepted that offer. Ms Gale gave evidence which corroborated the foregoing. Further she told the Commission that after ascertaining Blackwell's attitude, she had spoken to the bookkeeper for the purpose of obtaining specific details of the wage costs which would be involved for the hours of work etc. that Gale had in mind before putting it to Bain for approval. This evidence is supported by that of Wing. Effectively the respondent's answer to the claim that an offer of employment was made is that the only person with the authority at the relevant time to engage permanent employees was the owner of Prime Holdings Pty Limited, Mr Ron Morellini. There was no offer of any employment made by him on the 6th day of January 1989 to Blackwell. Therefore, the respondent argues, there was no contract of employment afoot between the applicant and the respondent following the completion of work by Blackwell on the 7th day of January 1989 and therefore no dismissal. The respondent effectively relies on the evidence of Morellini and Mr Edward Rogers. Rogers commenced employment at the hotel on the 18th day of December 1988 and it appears was involved in working with Bain until Bain's retirement which was apparently expected some time later. It is Morellini's evidence that he imposed a strict employment policy which involved interviews and questionnaires administered by himself and that the decisions as to hiring permanent employees was absolutely vested in him. Managers, he said, had the authority to hire casual employees provided that certain procedures were followed. Rogers' evidence is that he was made aware from the outset of his employment what Morellini's policy and procedures were so far as hiring of employees was concerned; that only Morellini had the authority to hire permanent employees; and that he had reason to believe Bain was aware of and somewhat irritated by this policy. Bain did not give evidence. Notwithstanding the respondent's assertions as to a firm employment policy being strictly applied at the hotel, there is evidence before me which leads me to conclude otherwise. The most significant is that of Morellini himself. In answer to questions put during his examination in chief he told the Commission that appointed managers of the hotel were allowed by him to engage casual staff but subject only to those prospective casual employees answering a series of questions which answers it then became the manager's responsibility to check along with references from previous employment. Yet the evidence of Blackwell and another employee engaged on a casual basis, Mr Lyle Wilson, as to the circumstances in which they were offered and accepted such work at the respondent's hotel — these being the only two such employees to give evidence — does not bear this out at all. And this apparent discrepancy between a "strict" policy and its application in fact is further evidenced by Morellini in answer to another question. When asked whether the employment procedures applied in cases where a casual employee was considered for permanent employment, his answer was as follows; Yes, I have discovered and in fact the Tania Blackwell instance has brought my attention to a lot of factors that I was unaware of as far as employees' rights, and so that policy and even people that have, let's say got under the guard and are now part-time employees virtually on a permanent basis, I've made it a requirement that they also fill out this form, so I can satisfy myself that they are the right type of people and I have conducted those interviews myself with those parties at the hotel... (Transcript p. 79.) This is in effect an admittance that permanent contracts of employment had been entered into between the respondent and employees in a manner which was other than by the "strict" policy and, while there may be efforts to "correct" what the respondent now sees as deficiencies in the recruitment procedures for contracts on foot, that of itself obviously does not dispose of such contracts. I note that Bain was not only manager of the hotel, he was also in a position of authority as the nominee of the hotel licensee. And there is the evidence of the bookkeeper as to employment practice at the hotel and of the cook as to the process she went through in her ultimate reference to Bain for a decision on a job offer. Against this is the evidence that Morellini had some short time earlier told Bain and Rogers in the presence of the bookkeeper that Blackwell, among others, was to be dismissed. There is also the evidence of Rogers that Bain did not mention any job offer to Blackwell when he, Rogers, told him that he was about to dismiss Blackwell. But this is not to say that there was not a job offer. Morellini told the Commission that he only heard via Gale that there had been a job offer to Blackwell on the morning after Rogers told Blackwell that she was no longer required to work at the hotel and that he did not investigate this at any time. The reason for this, he said, was that he believed any such action by Bain was inexplicable. The fundamental question is whether on the balance of probabilities an offer of employment was made by the respondent to Blackwell and accepted by her. Having carefully considered all that is before me, I have concluded that on the 6th day of Janaury 1989 there was an offer of employment to Blackwell by the respondent which offer was accepted. That being so the parties to that contract had attendant rights and obligations pursuant to it from that point. One such right is for the giving of due notice of termination of that contract. The contract of employment was terminated the following evening by the actions of Rogers. There was no notice given or payment in lieu of notice at that time. Rogers gave evidence that he offered a week's pay to Blackwell at the time. This is denied by Blackwell. But in any event, even if such offer was made and I am not convinced that it was, then it could only by virtue of Rogers' evidence be seen as an offer of an ex gratia payment and not payment in lieu of due notice. Thus the evidence is that on the evening of the 7 th day of January 1989 Blackwell was summarily dismissed from the position she had been offered and had accepted the previous day. Where a dismissal has been effected summarily the onus falls on the employer to establish the facts of the misconduct giving rise to such a dismissal. And it is implicit that, unless good reason exists to do otherwise, any employer exercising the right to summarily dismiss 2156 W 69 W.A.I.G. should at that time inform the employee being dismissed what the misconduct is on which the right is founded. To do otherwise would be to deny the employee natural justice. The employer in this matter has not sought to identify and establish any misconduct. There is simply nothing before me which establishes any misconduct. Indeed what evidence there is before me as to Blackwell's work performance suggests that she was a willing, competent and co-operative employee. Later criticisms raised by Rogers in his evidence were not put to Blackwell during the proceedings and do not figure in this conclusion. In any event they were not such which could be construed as serious misconduct. As to the economic grounds on which the employer relies, the evidence is simply unconvincing. This is the case whether one examines the assertion that the decision to terminate this employee's employment was based on an existing downturn or on an expected downturn. It is clear from Morellini's evidence that the fundamental reason for the decision to terminate this employee's employment was his opinion of what was described as the "casino incident". But at no point from the time of the decision taken by the respondent to dispense with the applicant's services has Blackwell been given the opportunity to confront the stigma implicit in her summary dismissal in terms. After weighing up all the evidence I have concluded that the respondent acted unfairly in dismissing the applicant. I have carefully considered the question of relief to be applied in this matter. The applicant seeks an order for re-employment and compensation for entitlements. While I have considered the length of time which has elapsed since the dismissal and the evidence as to the efficacy of restoration of an employment relationship in the light of all the evidence, I have concluded that such an order should issue. In that I make explicit that I have had regard for the promptness with which this claim was filed and the direct and early efforts the applicant took to put her grievance before the respondent for its consideration and the forthright manner in which she conducted herself in the witness box. In my view, the applicant is capable of conducting herself appropriately in the event of re-employment by the respondent. Accordingly I do not believe the injunctions of section 26 of the Act would be served by declining to order the only relief allowed by the law as it stands. So far as that order which goes to compensation is concerned I have concluded that it should be at the rate of $221.49 gross per week, that being the agreed term of the contract, less $199, being a social security payment received by the applicant since. Further I have considered the evidence of Blackwell so far as it goes to the work she has gained since the 19th dayof April 1989. While it is possible she may have been able to do this work as well as the work she would have been carrying out had she not been unfairly dismissed, I am not convinced that this would have been the case. For this reason, I would see the total amount received by Blackwell from this other employment deducted from the total payable in accordance with the foregoing conclusion. The minute of the proposed order is now made available to the parties. A speaking to the minute will be arranged at the request of either party.