WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES William Thomas John Valli

APPLICANT

-v-

Julie Anne FriesSbourg J.A.F. Promotions

RESPONDENT

CORAM Commissioner S Wood

HEARD Tuesday, 8 May 2007, Tuesday, 19 June 2007

DELIVERED TUESDAY 17 JULY 2007

FILE NO. U 38 OF 2007

CITATION NO. 2007 WAIRC 00612

CatchWords Termination of employment – Harsh, oppressive and unfair dismissal - Application out of time – whether applicant dismissed – Industrial Relations Act 1979 s 29(3), s 29(1)(b)(i)

Result Application accepted out of time

Representation 

Applicant Mr D Schapper of Counsel

Respondent Mr C Cook of Counsel

Reasons for Decision

1         This is an application pursuant to s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”).  The application came on for hearing pursuant to s 29(3) of the Act.  The applicant alleges that he was dismissed on 29 January 2007.  He lodged his application on 2 March 2007.  The application then on its face is some 4 days out of time.

2         The Industrial Appeal Court (IAC) set out the criteria for deciding such an application in Prem Singh Malik v Paul Albert, Director General, Department of Education of Western Australia (2004) 84 WAIG 683. The delay in making the application is short and Mr Valli did not advise the respondent of any challenge prior to making the application.  There is no prejudice to the respondent in now having the matter heard.  The delay in making the application arose, on Mr Valli’s evidence, because he waited for the bulk of his outstanding commissions to be paid, he was not sure about the legality of the situation, he was in a state of shock and he had his head down promoting his real estate work. These criteria weigh in favour of the applicant.

3         Mr Valli’s evidence is that on 29 January 2007 he had trouble with his car and telephoned Ms Friessbourg to advise her that he would be late for work.  When he arrived at work he found that his desk had been cleared.  She called him into her room and she said, “I’ve had enough”.  Mr Powlay the Sales Manager, and a personal friend of Mr Valli, was present.  There was then discussion over some complaints that had been made about Mr Valli.  Ms Friessbourg then told Mr Valli, “You’ve got to go”. 

4         Mr Valli then says, “We walked outside and she sort of, not smiling, but she said, “Well, I’ve sacked Bill Valli”, words to this effect, “I don’t know why, but I’ve sacked him and I’m glad I’ve sacked him” and she virtually ushered me out of the room to the front door and I had lunch with my mate”.  He says that the whole exchange took approximately 20 minutes and that some of his personal effects, in a plastic bag, were brought to the door and he left to go to lunch.  At lunch Mr Powlay was semi-disappointed but said that it was to be expected.  I assume that Mr Valli means by this that Mr Powlay was referring to his dismissal.

5         Under cross-examination there was the following exchange (Transcript p.11-12)

“Okay.  Is it not true that then I asked you if you would consider taking leave of three months so that you could decide between the real estate career and fundraising because, it was not working you doing both because of the amount of complaints I was receiving.  Is that not correct? ---- I don’t think that’s correct.  Mr Powlay had mentioned, he said, “Bill take a week off, take a month off, you know, take some time off.”  That’s about the extent of it.  So that’s my answer.

And you agreed to take one month leave of absence to decide what you wanted to do? --- No, no way in the world.  I didn’t and it was my decision.  I didn’t ---

Okay.  You were also asked to come in over the next four weeks while you were considering what you were doing and to do your debt collection – debt collection means he was to come in and ring donations pending – correct? ---- David said to me you wanted me to come back within three weeks, or something like that.” 

6         Mr Valli denies that on 22 or 23 February 2007, when he went in to collect his commission cheque, he was asked whether he had decided between fundraising and real estate, he was offered more time to decide and he said that he had decided to stay in real estate (Transcript p.13-14).  He says that Ms Friessbourg indicated that they were good friends and that he was welcome back any time.

7         Ms Friessbourg’s evidence is that on 29 January 2007 she said to Mr Valli, “Bill, what are we going to do here, this is the situation, you’re not coming in to work.  We know you want to do real estate, you’ve pointed it out to us on many occasions.  We’re receiving more and more complaints all the time.  It’s time for you to really sort of make a decision what you wanted to do, whether you wanted to go into real estate, or whether you wanted to do fundraising.”  Ms Friessbourg says that Mr Valli said he wanted to continue fundraising because of the money.  She then asked him to think about taking a leave of absence for three months so he could explore his real estate work.  Mr Valli replied that he did not want to do that because he needed the income.  Ms Friessbourg says that Mr Valli then said, “Well, what if I take a month, what if I take a month”.  She replied, “Fine, give it a month and we’ll see how we go.” (Transcript p.29)

8         Ms Friessbourg says that she told the staff that Mr Valli was taking a leave of absence or a holiday.  She says that she told Mr Valli that he was welcome to come in to ring his donors and chase up outstanding monies.  He was to do this once a week over the four week period following 29 January 2007 (Transcript p.30).  She says that she tidied Mr Valli’s desk and re-directed some of the work; she did not clear his desk.

9         Mr Friessbourg says that when Mr Valli came into to collect his commission cheque, he was asked if he had chosen between real estate and the respondent’s work, and he chose real estate work.  She says that Mr Powlay asked him if he was “coming back”.  Mr Valli was told that if the real estate work did not work out then he could return to the respondent, subject to certain conditions.

10      Mr Powlay’s evidence is that on 29 January 2007 Ms Friessbourg and he had a meeting with Mr Valli shortly after he arrived at work at 11am.  The meeting was to discuss, “what we were going to do with Bill and where he stood with us work-wise”.  They thought it was best that Mr Valli take some time off to pursue his real estate career.  Mr Powlay says that Mr Valli was “more or less in agreeance”.  He did not agree to take three months off but agreed to take one month off.  Mr Valli asked if he was being sacked and was told he was not.  He says that Mr Valli was not told that he was fired, that he had to go or that they had had enough of him.  

11      Mr Powlay says that after the meeting Mr Valli collected some personal items; they walked out together and had lunch together.  He says that Mr Valli and he talked about the earlier meeting.  Mr Valli was not happy with the way it had happened but he was happy with the opportunity to pursue his real estate career full-time.  Under cross-examination Mr Powlay says that, “eventually we all agreed on the month”, and that, “He was happy about having the month off but I don’t think that he was too happy about having his drawer gone through on his desk” (Transcript p.62).  Mr Powlay later says that Ms Friessbourg and he had had enough of Mr Valli at work due to the complaints which they had received about him.  He says that they pushed for Mr Valli to have time off and that it was the best thing for Mr Valli.  He says that Mr Valli was welcome to return if he did not succeed with the real estate work and that they expected him to be in once a week to chase up donors.

12      The evidence of Ms Rust is that Mr Valli’s desk was cleared and there was a plastic bag on it.  She says that Mr Valli told her on 29 January 2007 that he had been, “given the arse”.  She says that she heard Ms Friessbourg say that, “it can’t go on … he’s got to go”.  Ms Allcott says that the desk was not cleared, it was tidied, and that she heard Ms Friessbourg tell Mr Valli that they needed to talk about a leave of absence or a holiday because he was not focussing.  Mr Dyson says that he saw Mr Valli in the bank about four weeks after 29 January 2007 and told him that he was welcome to come back if he changed his mind.

13      There are considerable differences in the accounts of witnesses as to what transpired on 29 January 2007.  However, the key issue is whether Mr Valli was in fact dismissed. To decide that I must assess the evidence of the three participants to the conversation in the office of Ms Friessbourg.  Mr Cook for the respondent submitted that the applicant had failed to establish that there had been a dismissal.  Mr Schapper for the applicant submitted that on all the evidence the respondent did not want Mr Valli in the office; his desk had been cleared out.  There was no expressed statement that Mr Valli was sacked. However, the employment is commission only and hence, even on the respondent’s evidence, if Mr Valli was simply told not to come in for a month or so then he was dismissed.  He could earn no income from the respondent during this period.   

14      Mr Valli says that Ms Friessbourg said that he had to go and she announced, outside her office and after their discussion, that she had sacked him.  The later part of this evidence is not consistent with that of any other witness.  Mr Valli agrees that there was some discussion about taking time off during the meeting and says that he did not agree to taking one month off.  Having seen Mr Valli give evidence I would treat the whole of Mr Valli’s evidence with some caution.  However, in this matter the respondent’s case at its highest is that Mr Valli was asked to take some time off, agreed to do so and was invited to return to work.  He was never told that he was sacked or any words that could convey such a meaning.  The respondent says that this situation does not constitute a dismissal. 

15      The difficulty for the respondent is that this was not a leave of absence.  On the respondent’s evidence Mr Valli was at the very least suspended.  As Mr Schapper for the applicant has submitted rightly, Mr Valli was employed on a commission only basis.  Any enforced absence from work would mean that Mr Valli would not have had the opportunity to earn income for that period through the respondent.  In the respondent’s view this was to give Mr Valli time to decide between his real estate business and working for the respondent.  However, the reason for the suspension is not relevant to my determination in this hearing.

16      Mr Powlay and Ms Friessbourg say that Mr Valli was first asked to take three months off, but he agreed to take one month off.  Mr Valli says that Mr Powlay suggested a week or more off and he strenuously denied agreeing to do so.  Ms Friessbourg says that Mr Valli said he needed the income.  It is clear from Mr Powlay and Ms Friessbourg that they were not happy with Mr Valli’s work and that the meeting was designed to bring matters to a head.  In my view it is also clear that it was not an option for Mr Valli not to take some time off and think about his employment.  On that issue I find that Mr Valli did not agreed to take time off, and I accept his evidence.  It was at the very least an enforced absence and one which was not open to refuse.

17      Ms Friessbourg and Mr Powlay say also that Mr Valli was to come in once a week to follow up on donors and he failed to do so.  However, this does not alter the fact that his employment status had been changed.  If anything it reinforces the view, because Mr Valli was only allowed to chase up old commissions, not create new ones.  Nor is it relevant in deciding whether he was dismissed in this first instance to say that he was invited back.

18      In Macken, O’Grady, Sappideen and Warburton, “Law of Employment” (fifth edition) they discuss “suspension” and make the point at p. 158 that, “an employer has no common law right to suspend an employee without pay”.  This issue was also canvassed by Gray J in Gregory v Philip Morris Ltd (1987) 19 IR 258 @ 279.  He stated, “The respondent could not suspend the applicant without pay, pending clarification of his membership status; suspension without pay is not open to an employer in the absence of a term of the contract of employment or of an award permitting such suspension.  See Re Application by Building Workers’ Industrial Union of Australia (1979) 41 FLR 192 @ 194.  To suspend the applicant on pay would have been to treat him more favourably than other employees of the respondent….”  The Full Court overturned this decision on appeal (Gregory v Philip Morris Ltd (1988) 80 ALR 455 @ 473) because they considered that the company should have explored the alternatives with Mr Gregory, including possibly obtaining his consent to suspension without pay.  However, they reiterated that unilateral action by an employer to suspend an employee without pay where there has been no consent by the employee is unlawful.

19      It is common ground that Mr Valli’s employment was not bound by any written contract and there is no evidence that there was any pre-existing agreement which would have provided for suspension without pay.  I have canvassed the possibility that Mr Valli agreed to the arrangement.  I do not find that he did.  The question then as to whether Mr Valli was dismissed is answered.  Mr Valli’s suspension constituted a dismissal in the circumstances.

20      It was also appear on all the evidence that the discussion on 29 January 2007 came without any forewarning to Mr Valli.  Ms Friessbourg gave evidence about some concerns that she had with Mr Valli’s work, as did Mr Powlay.  I would say that not all of these issues were put properly to Mr Valli, albeit various concerns were addressed in cross-examination.  There was no evidence that Mr Valli had been warned that his performance would need to improve or he would be suspended or dismissed.  I am not deciding the merits of the application at this point, except to say that the application at this time is at least arguable. 

21      Having then considered all the relevant criteria I would find that it would be unfair not to accept this application, it being out of time, and I will order accordingly.  The matter will therefore be listed for a conciliation conference.