2007 WAIRC 00192
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
PARTIESGwenda May Smith
APPLICANT
-v-
Albany Esplanade Pty Ltd T/as The Esplanade Hotel
RESPONDENT
CORAMSenior Commissioner J H Smith
HEARDWednesday, 6 December 2006, Thursday, 7 December 2006, Friday, 8 December 2006, Tuesday, 19 December 2006
DELIVEREDFriday, 2 March 2007
FILE NO.U 164 OF 2006, B 164 OF 2006
CITATION NO.2007 WAIRC 00192
CatchWordsTermination of employment - Harsh, oppressive and unfair dismissal claim - whether Applicant constructively dismissed - no express or implied duty to provide work - claim not made out - turns on own facts - Contractual benefits claim for pay in lieu of notice on termination - claim dismissed as no finding that the employer terminated the Applicant's employment - jurisdictional challenge - obiter pre Work Choices contractual benefits claim within jurisdiction - obiter post Work Choices contractual benefits claims not within jurisdiction - Industrial Relations Act 1979 (WA) s23(1), s26(1)(a), s26(2), s27, s29(1)(b)(i), s29(1)(b)(ii), s34, s35 and s36; Workplace Relations Act 1996 (Cth) s4(1), s5, s16(1) and s16(2); Judiciary Act 1903 (Cth) s78B; Workplace Relations Regulations 2006 (Cth) reg1.2 of div2 of pt1 of ch2.
ResultApplications dismissed
2007 WAIRC 00192
Representation
ApplicantMr D C Heldsinger (of counsel) and Ms K Findlay-Grove (of counsel)
RespondentMr A L Drake-Brockman (of counsel) and Mr B Jackson (of counsel)
Reasons for Decision
1Gwenda May Smith ("the Applicant") filed an application in the Western Australian Industrial Relations Commission ("the Commission") on 2March 2006 under s29(1)(b)(i) of the Industrial Relations Act 1979 ("the IR Act") claiming on that day she had been unfairly dismissed by Albany Esplanade Pty Ltd trading as the Esplanade Hotel ("the Respondent"). The Applicant resigned without notice. Prior to her resignation the Applicant was employed by the Respondent as the Manager of sales and marketing for the Esplanade Hotel ("the Hotel"). The Applicant also filed an application on 2March 2006 under s29(1)(b)(ii) of the IR Act claiming that she was owed contractual benefits by the Respondent. The Applicant contends that she was constructively dismissed as the Respondent had directed her not to undertake sales and marketing duties. She says that the security of her employment was in doubt and she had nothing to do which left her with no alternative but to resign. The Applicant's claim for contractual benefits arises because she says that she was dismissed. The Applicant contends that the legal effect of her dismissal is that she was entitled to four weeks' pay as compensation for notice pursuant to the express terms of her contract of employment.
2The Respondent says that the Applicant's claims should be dismissed as she voluntarily resigned. It also says that even if the Commission makes a finding that the Respondent terminated the Applicant's employment, that the Commission does not have jurisdiction to deal with the Applicant's claim for notice as s16(1) of the Workplace Relations Act 1996 (Cth) ("the WR Act") ousts the jurisdiction of the Commission to deal with any claim for contractual benefits. It contends that s16(1) excludes the jurisdiction of the Commission to deal with contractual benefits claims where an employee is employed by a trading corporation. Section 16(1) of the WR Act became operative on 27March 2006. Pursuant to reg 1.2 of div 2 of pt 1 of ch 2 of the Workplace Relations Regulations 2006("the WRR") certain State laws are not excluded by s16(1) in respect of an act or omission which occurred before s16(1) became operative. The Respondent argues that reg 1.2 does not apply and says the Applicant's claim for notice was extinguished when s16(1) became operative.
The Applicant's Evidence
3The Applicant commenced employment with the Hotel on 1September 1996 as its Sales Manager. At all material times the Applicant was employed to work in an office in Perth and her duties required her to occasionally visit the Hotel in Albany several times a year.
4When the Applicant first commenced employment the Hotel was owned by Joondalup Resorts International and was managed by Accor Asia Pacific Corporation ("the AAPC"). At that time she was required to report to the AAPC Regional Sales and Marketing Manager and worked in consultation with the Hotel General Manager. In July 1998, AAPC ceased to hold the management contract for the Hotel. In mid to late 1999, Mr B KWee's company, Earth Essence International Ltd, purchased the Hotel from Joondalup Resorts International. Prior to MrWee's company purchasing the Hotel, MrWee had been a part-owner of Joondalup Resorts International.
5At the time the Applicant employment came to an end, she was carrying out the roles of Sales and Marketing Manager. The Applicant says that her key responsibilities were:
(a)Maintaining and increasing room revenue across all market segments;
(b)Creating marketing programs which would generate revenue for all outlets of the Hotel, specifically the restaurants, bars and rooms, including the apartments;
(c)Public relations; and
(d)Representing the Hotel at trade and consumer events within Australia and overseas with the objective of achieving placement of the Hotel in international and domestic travel agent programs.
6The Applicant says that sales and marketing functions were central to her job and her primary focus was on activities designed to increase room activity and revenue for all areas of the Hotel by securing new business and maintaining existing clients. In particular, the Applicant says her role required her to be proactive and there were no activities other than sales and marketing activities which allowed her to achieve her key responsibilities. It is common ground that the express terms and conditions of the Applicant's employment were set out in a letter of appointment and a document titled "Employment Conditions and Entitlements". These documents state:
"Dear Gwenda
LETTER OF APPOINTMENT
On behalf of the Hotel Owner, Albany Esplanade Pty Limited ("AEPL"), congratulations on your appointment in the position as Sales Manager for the Esplanade Hotel, Albany based at Accor Asia Pacific Corporation ("AAPC") Regional Sales Office, PerthWA. AAPC is the Hotel Manager.
As you know, this appointment is made on the basis that there is no continuity of service and no leave credits will be transferred. This in view of the fact that you will cease to be an employee of Raffles Perth Pty Limited ("Raffles") and become an employee of AEPL. AAPC is Hotel Manager for these owners and we have not been your employer. All leave and any other entitlements due to you arising from your employment by Raffles at Mercure Hotel Perth will be paid out on your last day at Mercure Hotel Perth.
This letter is a brief summary of the main employment conditions and entitlements to apply when you commence and should be read in conjunction with the provisions of the Minimum Conditions of Employment Act 1993 (WA). It is confidential and should only be discussed with the signatories.
Your appointment is subject to using your private motor vehicle for business purposes and you are responsible for having adequate cover for motor vehicle insurance and motor vehicle registration and third party personal injury insurance under the Motor Vehicle (Third Party Insurance) Act 1943 (WA).
If you seek any clarification to this arrangement please contact Graeme Donaldson at AAPC, Perth Office by telephone (09) 3212311 or by facsimile (09) 4815797.
For the record, to signify we agree on the terms set out in this letter (turn over for main conditions and entitlements), please sign (front and back) and return the duplicate copy to the Human Resources Department, AAPC, Perth Office at your earliest convenience, and in any event by 26August 1996 and retain the original for your personal records.
Gwenda, the position should provide challenges for you and we look forward to mutually rewarding times ahead.
Yours sincerely on behalf of Albany Esplanade Pty Limited
Ian Simmons
Regional Sales & Marketing Manager – WA/ NT
Accor Asia Pacific
Graeme Donaldson
Regional Human Resources Manager – WA/NT
Accor Asia Pacific
Signed Gwenda Chipp"
(Exhibit2 Annexure1)
"EMPLOYMENT CONDITIONS AND ENTITLEMENTS
POSITION: Sales Manager – The Esplanade Hotel, Albany, WA.LOCATION: AAPC Regional Sales Office, Perth
COMMENCEMENT DATE: 1September, 1996
PROBATION: Appointment is subject to a probation term of up to three months from the Commencement Date. Provided overall performance during probation is evaluated as satisfactory appointment will be confirmed in writing. The extension of the probation term is at the discretion of AEPL based on performance evaluation.
REPORT TO: Position reports directly to AAPC Regional Sales & Marketing Manager – WA/NT; and works in consultation with the Hotel General Manager.
MAIN RESPONSIBILITES: Position duties are agreed to be according to the attached Position Description. Provided statements included in this description are intended to reflect, in general, the duties and responsibilities of the Position and are not to be interpreted as being all inclusive.
HOURS AND DAYS OF WORK are agreed to be as required by the fluctuating demands of the Position.
SALARY is $32,500 gross per annum and is paid fortnightly into your bank account. Your Position is paid a salary and there is no requirement to pay any overtime and any penalty rates in addition to your salary. Performance based salary review is conducted annually and your salary may be adjusted at the discretion of AEPL in January of each year worked.
Motor Vehicle Allowance to assist with vehicle operating expenses incurred on business within the prescribed Perth Metropolitan Area, is $5,000 gross per annum paid fortnightly, on a prorata basis, into your bank account.
AEPL, at its sole discretion, may arrange and shall payfor any business travel outside the prescribed Perth Metropolitan Area. Provided if required to use your private vehicle for such travel, an additional Motor Vehicle Allowance is paid at the rate of 42 cents per kilometre, subject to you submitting a travel claim. / BENEFITS: Complimentary car park in close proximity to the Location while on duty
LEAVE FOR ILLNESS OR INJURY: Entitlement up to 76 hours during each year worked, accruing pro rata on a weekly basis, accumulating.
ANNUAL LEAVE: Entitlement up to 152 hours during each year worked, excluding holiday loading, accruing prorata on a weekly basis.
SUPERANNUATION: Six percent statutory superannuation contribution by AEPL under the Superannuation Guarantee (Administration) Act 1992 (Cth); subject to legislative change.
CONFIDENTIALITY: Except in carrying out your duties for AEPL, you must keep confidential and must not either during the course of your employment or following termination of your employment directly or indirectly disclose, publish or use for your own benefit or for the benefit of others either:
●any of AEPL's or AAPC's information which you acquire knowledge of during your employment with AEPL without first having obtained AEPL's and AAPC's written consent to such disclosure; or
●any information which has been disclosed to AEPL or AAPC by others under an agreement which requires AEPL or AAPC to keep such information confidential.
These confidentiality requirements do not apply to information that has become public knowledge without fault on your part.
TERMINATION OF EMPLOYMENT: During Probation 2 weeks notice and after Probation 4 weeks notice in writing or compensation instead of notice by either party, and should be read in conjunction with the Industrial Relations Act 1988 (Cth).
Any outstanding debts on your employee ledger account are to be deducted by AEPL from any termination payment and this letter is sufficient authorisation by you for any such deductions.
I have read and agree with the terms set out in this letter and accept the offer of employment therein on that basis.
Signed Gwenda ChippDate: 19/8/96"
(Exhibit2 Annexure2)
7It is common ground that the Applicant's duties were set out in a position description statement which had been prepared by AAPC. This document provides as follows:
"POSITION DESCRIPTION
SALES MANAGER
MERCURE GRAND HOTEL ESPLANADE ALBANY
Overview:
Responsible for achieving revenue objectives and room night production from all market segments.
Responsible for the preparation of the Sales & Marketing Plan, the Activity Plan and the co-ordination of the activities associated with these plans.
Assist property management in achieving budgeted objectives.
Reporting to:
Directly responsible to the Regional Manager Sales & Marketing WA/NT.
Liaise with, report to and inform the Hotel General Manger on progress and performance of a Sales & Marketing nature.
Responsibilities:
Implement and maintain the Team Accor Platform and the ongoing development of the Platform to reflect the appropriate mix of accounts to achieve the desired measurable results.
Enhance the relationship of the Company's accounts under your management by undertaking brickwalling activities.
Monthly overview of the Sales & Marketing plan with Regional Manager Sales & Marketing, Hotel General Management and Owners on an as required basis.
Sales calls upon The Esplanade Hotel accounts as agreed with the Regional Manager Sales & Marketing.
Provide reports of Platform activities to a predetermined time schedule.
Represent the Hotel as required at business and associated events/functions.
Participate in the development of the property business plan.
Preparation of advertising and promotional activities including all media outlets, shopping centre displays and trade shows, etc.
Implement direct mail campaigns as appropriate for accommodation and food & beverage in the primary markets of Perth and Albany.
Maintain the direct mail database in association with the regional sales office.
Identify and develop products of relevance to the different market segments such as weekend packages, corporate specials, etc.
Undertake public relations activities in Perth and Albany to maximise the exposure and awareness of the hotel.
Close liaison in association with Account Manager Tours & Travel with selected (preferred) travel agency principals who sell clients to Albany and to organisations requiring accommodation of a style offered at The Esplanade, Albany.
Regular visits to the hotel on a basis of no fewer than 2 per month of a duration of no less than 1 night.
Conduct yourself in a professional manner at all times.
Other duties as required."
(Exhibit2 Annexure3)
8After MrWee's company purchased the Hotel the Applicant attended a meeting with MrWee and his wife, Valerie Wee, on 12November 1999 and other directors. This was the first time that she met Mr and MrsWee. Mr and MrsWee are residents of Singapore. During that meeting she was asked for recommendations and she was told to prepare for a trip to Singapore to promote the Hotel and meet with the remainder of the Earth Essence International Ltd team.
9From 1999 to 2005 the Applicant made approximately nine trips to Singapore. When she visited Singapore she usually met with Mr and MrsWee and other senior employees to discuss the performance of the Hotel. The Applicant had a good relationship with Mr and MrsWee during this period. She was often asked for her input as to possible future opportunities and development of the Hotel and to explain various aspects of the Hotel's operations.
10The Applicant's work required that she attend trade and consumer events held interstate, intrastate and internationally. The Applicant attended consumer travel fairs NATAS in Singapore and MATTA in Malaysia/Penang twice yearly. The Applicant says that the travel fairs were a key aspect of her sales and marketing functions and of considerable importance to the Hotel revenue as they provided access to the international market, especially within the Asia region. In particular, the fairs provided the opportunity to promote the Hotel to approximately 70,000 to 85,000 people each year. The Applicant says that her attendance at the fairs was reflected in increased bookings from inbound travel agents, contact made directly by email or consumers presenting her business card when checking into the Hotel.
11The Applicant says that when MrWee's company acquired the Hotel she was instructed by MrWee and MrGovidran, who was at that time the Manager of the Hotel, to focus only on carrying out sales and marketing activities. The Applicant was responsible for all marketing promotions, advertising and public relations, with the exception of the editorial of the local Albany Advertiser which was handled by the General Manager. She undertook sales visits to Albany where she visited potential and current clients. She also attended public relations events and liaised with staff of the Hotel for the purpose of updating promotional activities. In addition, the Applicant negotiated coach company contracts to ensure the Hotel was the preferred supplier of rooms and outlet for large groups and she dealt with Western Australian inbound travel agencies who specialised in international visitors to source clientele and negotiated with them to use the Hotel when their clients visited Albany. The Applicant was also responsible for the preparation and implementation for the annual sales and marketing plan and the annual room revenue budget. She says her goal each year was to exceed her results for the previous year and that her passion for the Hotel and the staff never waned. She enjoyed a wide and varied amount of responsibilities and was very proud to represent the Hotel. Until 2005, the Applicant had a very open relationship with Mr and MrsWee.