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Accident Compensation Cases

Classique Giftware Ltd v Porter (EMC, 09/05/95)

Judgment Text

JUDGMENT OF PALMER J 
Palmer J
Introductory 
Ms Patricia Porter was found by the Employment Tribunal (Mr W R Grills) sitting at Timaru to have been unjustifiably dismissed from her employment as a retail shop assistant by the appellant on 31 May 1993. In its reserved decision which was delivered to the parties on 25 August 1994, the Tribunal ordered an award of compensation in favour of the respondent against Classique Giftware Ltd of $7,500 pursuant to section 40(1)(c)(i) of the Employment Contracts Act. 
By supplementary decision delivered on 28 November the Tribunal made an award of costs in favour of Ms Porter in the sum of $1,800. 
The Present Appeal 
The appellant has appealed against the Tribunal's decision upon wide-ranging and broadly encompassing grounds, namely: 
“1.00
That the Tribunal erred in fact and in law by finding that the Respondent had been dismissed on May 31 1993 and that employment was terminated without further consultation with A.C.C. 
2.00
That the Tribunal erred in fact and in law by holding that the reason for termination was that the Applicant was unable to kneel. 
3.00
That the Tribunal erred in fact and in law by finding that the applicant had ‘no problem’ with standing to carry out her duties. The Respondent adduced that problem as a fact in her own evidence. 
That the Tribunal further erred in fact and in law by holding that a ‘fair enquiry’ would have established the Respondent's ability to stand. That was not supported by medical evidence. 
4.00
That the Tribunal correctly held that the rehabilitation trial was concluded before its completion but erred in fact and in law in finding that a termination of the trial constituted a termination of the employment contract at that time. 
5.00
That the Tribunal erred in fact and in law by awarding compensation at a higher level than claimed. No amended Statement of Claim and no evidence to support an increased claim was presented by the Respondent. In any event, the Appellant submits that the award was excessive under the circumstances. 
6.00
That the Tribunal erred in fact and in law by finding that the dismissal was substantively unjustified and procedurally unfair. ”
As the notice of appeal confirms, the company's appeal is founded upon the primary basis that its dismissal of Ms Porter, which it contends was in fact on notice by letter dated 4 June 1993 - rather than the summary dismissal which the Tribunal held occurred on 31 May - was a justifiable dismissal both substantively and because it was carried out, the appellant contends, in a procedurally fair manner. In the alternative the company contends that if - contrary to its primary argument upon appeal - the dismissal is held by this Court to have been an unjustifiable dismissal, then the award of compensation ordered by the Tribunal should be set aside, firstly because the award of compensation was in excess of that formally sought by Ms Porter, namely an award of $7,000, and secondly because, in the appellant's submitted view, the award made was and is manifestly excessive in all the circumstances of the case. 
My Approach to the Present Appeal 
Given the extent to which material findings of fact and mixed determinations of fact and law made by the Tribunal are pervasively challenged through the grounds of appeal, it is timely to now refer to the principled approach followed by this Court concerning appeals generally from the Tribunal to the Employment Court. I refer in this particular context to the judgment of the Full Court of this Court in GWD Russells (Gore) Ltd v Muir [1993] 2 ERNZ 332Has Cases Citing which are not known to be negative[Green] , wherein the appellate role of this Court was materially analysed at p 336 et seq, thus: 
“The Court in Deka concluded from the scheme of the Employment Contracts Act 1991 (the 1991 Act) that an appeal from the Tribunal to the Court was to be by way of rehearing in the sense described in the Shotover case, namely on the record of the oral evidence given below. We adopt this conclusion. We observe that unlike the provisions of the District Courts Act, there is no express provision in the 1991 Act which requires the appeal to be by way of rehearing. The appeal provisions of s 95(1) of the 1991 Act are not dissimilar to s 5 of the Lakes District Waterways Authority (Shotover River) Empowering Act 1985 considered by the Court of Appeal in Shotover. Both statutory provisions do not provide that the appeal is to be by way of rehearing. Cooke P concluded: 
‘But it is trite to say that all appeals are creatures of statute, and their scope likewise. Apart from cases of agreement between the parties, hearings of appeals on the record of evidence taken below are usually so confined by the express terms of a statute. No doubt there could also be a case of necessary implication. Neither situation exists here. The whole tenor of s 5 of the local Act of 1985 points to a full rehearing de novo (p 441.) ’
... 
The Shotover case also supports the proposition that there is an onus on an appellant to show that the decision under appeal was wrong. If the Employment Court concludes that the Employment Tribunal's decision was wrong, it may then exercise any of the powers that are conferred upon by it by s 95(5) of the 1991 Act to direct the matter back to the Tribunal in whole or in part or to determine the appeal by confirming, modifying or reversing the decision of the Tribunal or by setting that decision aside and making such other order as the Court thinks ought to have been made in the first place. 
... 
There are passages in Cain [Cain v H L Parker Trusts [1992] 3 ERNZ 777Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] ], following Pilgrim v Director-General of Health [1992] 3 ERNZ 190Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at pp 200-203 which may be taken to suggest that the Employment Court can only interfere with a decision of the Tribunal if it is satisfied there has been a substantial miscarriage of justice or that it is seriously wrong. Those propositions were not intended to create a greater onus on an appellant than that described in the Shotover case, and adopted by this Court in Deka, of establishing that the decision under appeal was simply wrong. The passage in which such expressions were used in Pilgrim makes it clear that what was being said is that appeals were not to be allowed merely because of some error made in the course of the decision which has not ‘altered the outcome by one iota’ (Pilgrim, p 201). The Full Court adheres to that view. Whilst the Employment Court is most likely to intervene to correct an injustice where something has gone seriously awry, it may also in its discretion intervene where it is satisfied that the decision of the Tribunal, as a matter of equity and good conscience, cannot stand in an unmodified form. 
Accepting the traditional restraints on an appellate Court referred to in Shotover, we observe that there have been some recent observations which assist in describing the appellate Court's role in making the customary allowance for any advantages that the Court or Tribunal appealed from may have had in seeing and hearing the witnesses. 
The requirement of an appellate Court to look afresh at the matters in dispute and to form its own views, even where there have been findings of credibility, has been stressed in a recent decision of the High Court of Australia. In Devries & Anor v Australian National Railways Commission & Anor (1992) 112 ALR 641Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  a trial Judge's findings had been set aside on appeal by the Full Court of the Supreme Court of South Australia. An appeal against this decision was allowed by the High Court which found that the findings of the trial Judge were not vitiated by some error of principle, or mistake and it was reasonably open to the trial Judge to accept the plaintiff's evidence. 
Brennan, Gaudron and McHugh JJ said, at p 646: 
‘If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his [or her] advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”. ’
... 
Thus the Employment Court, if invited to on appeal, must reconsider the material before the Tribunal and then make up its own mind after having due regard to the Tribunal's decision, and if, on full consideration, the Court comes to the conclusion that the decision is wrong, it may then exercise any of the discretionary powers conferred by s 95(5). 
... 
We do well to remind ourselves that the Employment Court in hearing an appeal from a decision of the Tribunal should, where required, after making the customary allowance on matters of demeanour and credibility, look afresh at the matters in dispute and form its own views even where the findings of the Tribunal have been based on credibility. The Court must not limit itself to considering merely whether the decision under appeal was one that it was open to the Tribunal to make. To do so is to conduct a review, not an appeal. The Court must go further and consider whether on the view of the facts and law which it has found for itself, the decision under appeal is wrong. If it so concludes, it may intervene
(The emphasis is mine.) ”
Furthermore, as I recently remarked in Wholesale Plant Nursery Ltd v Johnston unreported, 5 April 1995, CEC 13/95
“To the same effect is the recently reported judgment of the Court of Appeal in Naden v Judicial Committee of the Auckland Racing Club (Inc) [1995] 1 NZLR 307Has Cases Citing which are not known to be negative[Green] . Through Tipping J, who delivered its judgment, the Court there held, in reliance upon its earlier judgment in Shotover Gorge Jet Boats Ltd v Jamieson [1987] 1 NZLR 437Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , which this Court applied in both Deka NZ Ltd v Singh [1992] 1 ERNZ 645Has Cases Citing which are not known to be negative[Green]  and then in the GWD Russells case, at pp 312-313: 
‘We are of the view that the same sort of approach should apply to the appeal rights given by the Rules of Racing. It is obvious that if matters have involved questions of credibility and issues assisted by seeing and hearing witnesses an appeal tribunal will usually be slow to differ from conclusions reached below. Nevertheless the appeal tribunal, unless the right of appeal is qualified in some clear manner, must still reach its own conclusion, albeit materially assisted in such a situation by the findings below. 
In the present case we are of the view that it would be wrong for the Appeal Judges when hearing the appellants' appeal, to cast on them an onus to show that the decision below was manifestly wrong. As Cooke P mentioned in the Shotover case, after reference to a number of authorities, it is sometimes said that in an unqualified appeal there should be no presumption in favour of the decision under appeal. The appellate body has to make up its own mind as to what is the right decision on all the material properly before it. Only if the appellate body cannot make up its mind should the decision below stand on any presumptive basis but, as Cooke P said, that equipoise is unlikely if the appellate body accepts its true responsibility. ’
(The emphasis is mine.) ”
I now comment by way of broad overview concerning the present appeal that, having reflectively considered the advocate's and counsel's submissions before this judgment was engrossed and having carefully considered in advance of the present hearing - and indeed through a reconsideration since the hearing - the evidence which was adduced in its entirety before the Tribunal, the Tribunal's decision, the documentary exhibits and the pleadings, I have decided how this appeal should be determined. For reasons which I shall subsequently enlarge upon, the appeal, upon the primary basis urged upon me by the company, that is to say that Ms Porter's dismissal should be held to be justifiable in all material aspects, shall be dismissed, but the appeal shall be allowed in part upon the alternate basis advanced by the company concerning the extent of the compensatory award made in favour of the respondent by the Tribunal. I shall subsequently explain how and why I am of the immediately concluded views which I have expressed. 
The Material Facts and Background 
Notwithstanding that in material aspects the relevant facts as determined by the Tribunal are, through the present appeal, now under challenge, I cite the Tribunal's summary of the issues under its heading “ISSUE”at pp 1-4 of its decision. Despite Mr Devlin's determined submissions to the contrary I conclude that within the parameters re-enunciated by the Full Court in the GWD Russells case, and more recently by the Court of Appeal in Naden v Judicial Committee of the Auckland Racing Club (Inc) (above), it was reasonably open to the Adjudicator to make the relevant findings of fact which he made where conflict of evidentiary account occurred. I stress that the Tribunal heard and saw the witnesses as the “trial court” which is not an advantage I have enjoyed. Upon my careful re-evaluation of the evidence I am unprepared to set aside, in material aspects, relevant findings of fact made by the Tribunal because I conclude it certainly has not been shown upon the present appeal that the Adjudicator's findings are vitiated by either mistake or through his failure to use and/or a palpable misuse of his opportunities of evaluating the relevant evidence and making findings based upon his assessment of the credibility of witnesses where conflict of account existed in the evidence. I shall subsequently return to this theme, given the specific grounds of appeal relied upon by the company. At this juncture I now cite the Tribunal's findings concerning the material facts and background under the heading “ISSUE”, namely: 
“Patricia Margaret Porter was employed by Classique Giftware as a retail assistant until May 31, 1993. On that date Ms Porter maintains that Ms Regnera Brinkmann (known as Ms Rene Hunt) the owner of Classique Giftware, unjustifiably dismissed Ms Porter. Ms Porter commenced work in March 1991. She signed an employment contract on August 21, 1992. Approximately two and a half years ago she broke her ankle, but the injury was not diagnosed until November 1992. At that date it was decided that she needed an operation. However, Ms Porter informed her employer that she would delay the operation until after Christmas so as not to disrupt the Christmas trading of Classique Giftware. The operation was scheduled for February 5. The difficulties with her ankle had created a problem in her knee which also needed correcting in the operation. The operation was a success as far as the knee was concerned. However, the operation did not correct the problem with her ankle. Ms Porter had originally hoped that the operation would only prevent her from working for a month. However, she was unable to return to work for some four months. She began work again on May 24, 1993 working only two hours per day. 
An arrangement had been worked out in April by Ms Sue Henderson of the Accident Compensation Corporation. There was to be an initial pre-trial where Ms Porter worked two hours per day, five days per week for two weeks. If the initial pre-trial was successful, a second ten week trial would be entered into. The second trial would involve her working four hours per day five days a week, and building up to an eight hour day. Ms Porter's wages would be paid by the A.C.C. Ms Henderson told the Tribunal that Ms Hunt understood that Ms Porter could not resume full duties and that the nature of the two and ten week trials was to encourage her gradual rehabilitation. Evidence before the Tribunal was in conflict in respect to these arrangements. Ms Hunt said that there was to be a two week trial, and a return to working the full range of duties. Ms Henderson's evidence however is preferred. Ms Henderson gave evidence from written notes which were dictated immediately following discussions with Ms Hunt. The Tribunal finds as fact that Ms Hunt had entered an agreement with A.C.C. for a two week pre-trial return to work, and a subsequent ten week trial involving a gradual return to full duties. 
After one week however, Ms Hunt broke that agreement. Ms Hunt was not satisfied with Ms Porter's ability to carry out her duties. Since her knee and ankle were still in some pain, Ms Porter had difficulty kneeling. She used a stool while dusting the bottom shelves. Ms Porter had had the stool made some nine months before the operation so she could use it to reach the top shelves. Ms Porter told the Tribunal that she also dusted the lower shelves when sitting on the stool. Ms Hunt denied this, and said that Ms Porter did not use the stool to dust prior to her operation. The Tribunal prefers Ms Porter's evidence to that of Ms Hunt. Ms Henderson was able to confirm from her notes that the use of the stool to dust the lower shelf prior to Ms Porter's operation was a subject of discussion prior to Ms Porter entering into the pre-trial. Ms Porter's ankle had been broken for some months prior to the operation. The stiffness and soreness related to this injury would have made kneeling difficult. On the balance of probability the Tribunal finds that Ms Porter would have used the stool to dust the lower shelves both before and after her operation. 
On the Monday following the first pre-trial week Ms Hunt arranged a test of Ms Porter's abilities, and made this arrangement without speaking to Ms Porter. She removed the stool away from the shop area. When Ms Porter arrived at work she discovered that the stool was missing. When she asked Ms Hunt where the stool was Ms Hunt told her that the stool was in the basement. At this point the accounts of Ms Porter and Ms Hunt diverged. Ms Porter's account is as follows. Ms Hunt indicated that complaints had been received from customers about her sitting on the stool. Ms Hunt said that she could not use the stool anymore. Ms Porter then responded by telling her that she wanted those complaints in writing. At that point Ms Hunt lost her cool and yelled, saying that Ms Porter had no rights. She said that there was no job for Ms Porter because she couldn't perform the required duties. Ms Porter said that she needed the stool for the low dusting. The A.C.C. had told her that she should use the stool where required. Ms Porter told Ms Hunt that she was discriminating against her because she had a disability. Ms Porter said she would ring A.C.C. and discuss it with them. Ms Hunt said she was not allowed to use the telephone. Ms Porter said she would pay for the telephone. She went ahead and telephoned Ms Henderson from A.C.C. but she was not there. 
Ms Porter said that she waited until 11.00 a.m. when she was due to finish work and then left Classique Giftware. She waited until 11.00 a.m. because she didn't know where she stood with A.C.C. under her employment contract and didn't want to be accused of walking out. She was however under no illusion that she had been dismissed. During that time between the conclusion of their discussions and her leaving the shop Ms Hunt did not speak to her. At 11.00 a.m. Ms Porter immediately went to see Ms Henderson. She talked to the staff at A.C.C. and told them the story. Ms Porter asked Ms Henderson to go and see Ms Hunt about the situation and to also get a statement of the reasons for her dismissal. Ms Henderson gave evidence to the Tribunal to the effect that she went to see Ms Hunt. Ms Hunt confirmed that she dismissed Ms Porter. The reason for the dismissal was that she was unable to dust the lower shelves without the use of a stool. Ms Henderson, as pointed out above, told the Tribunal that Ms Porter had told her that she had previously used the stool to dust the lower shelves. Ms Henderson was plainly at a loss in trying to explain the dismissal, particularly insofar as the A.C.C. was paying Ms Porter's wages. 
Ms Hunt's version of the story was conflicting on a number of points. Both Ms Porter and Ms Henderson testified that Ms Hunt had said that she was in receipt of complaints from customers about the use of the stool for dusting lower shelves. Ms Hunt denied stating that complaints had been received. Ms Hunt said that she indicated only that customers had passed comment. Whether or not Ms Hunt had said that complaints were received is an issue of lesser importance to the point that customers had merely made comment. The Tribunal is at a loss as to how the use of the stool could in any way affront a customer. The Tribunal observed the stool and gained a perspective as to how Ms Porter would appear when dusting the lower shelves. The Tribunal's conclusion is that Ms Porter appeared in a manner which would have been socially acceptable within a commercial premise. The impression of the Tribunal is that dusting with the use of a stool gave an impression of elegance which would not be conveyed by a person kneeling on the floor dusting the lower shelves. The Tribunal does not accept Ms Hunt's point that the use of the stool created a bad image. Ms Hunt said that she had raised the point to illustrate that Ms Porter was not carrying out her full range of duties. However, Ms Hunt had agreed with A.C.C. that a two week pre-trial would be carried out. Ms Hunt knew that Ms Porter had an operation. She knew the purpose of the pre-trial was to bring Ms Porter gradually back into the work force. She may not have been able to perform her full range of duties in the first week, but that could not have been a legitimate expectation on the part of Ms Hunt. In any event, the particular duty in question, dusting on the lower shelves, was in fact carried out by Ms Porter. The basic question for the Tribunal is whether it was reasonable for Ms Hunt to require that the dusting be carried out without the use of a stool. The Tribunal's conclusion is that it was entirely unreasonable given that Ms Hunt had agreed to a trial period to encourage Ms Porter's rehabilitation. 
According to Ms Hunt, Ms Porter was to have said that she was not medically capable of standing or kneeling for the next 18 months, and that this had been the advice of her specialist. Ms Hunt said that she was very surprised. Ms Hunt said that the A.C.C. indicated that she would perform a full range of duties in the following week when she commenced her four week trial performing four hours of work per day. Again the Tribunal does not accept this evidence. Ms Porter told the Tribunal that standing was not a problem. Her point was reinforced by the evidence of Ms Henderson. Ms Hunt then informed Ms Porter that she could not keep her job open for another 18 months. Ms Hunt was to have said she would speak to Ms Henderson about a medical report from the A.C.C. Ms Hunt says that she did not tell her to leave, or that the trial period was being terminated. According to Ms Hunt the conversation concluded at five minutes to eleven. Ms Porter seemed very upset, but made no further comment. A few minutes later another employee arrived at work. Ms Hunt asked if Ms Porter was still in the shop, and was told no. Ms Hunt checked downstairs and found that Ms Porter's stool and spare shoes were gone. She was surprised at Ms Porter's departure because Ms Porter usually told her when she was leaving work. 
The key point of evidence in conflict is whether Ms Hunt dismissed Ms Porter at that stage. The Tribunal prefers Ms Porter's evidence because of the evidence given by Sue Henderson of the A.C.C. Ms Porter left the shop and went directly to A.C.C. She discussed the situation with A.C.C. staff. Ms Henderson confirmed that Ms Porter believed that she had been dismissed. This was a surprise to Ms Henderson who believed that Ms Porter's rehabilitation programme had been going well, and that Ms Hunt was going to take a co-operative approach to the rehabilitation. Ms Henderson went to see Ms Hunt that afternoon after talking to Ms Porter. Ms Henderson gave an account to the Tribunal of her discussion with Ms Hunt. She said that Ms Hunt had reported that she had received complaints from customers about the way Ms Porter was sitting on the stool. Ms Henderson said that Ms Hunt had confirmed that she had terminated Ms Porter's employment. This was a point upon which there was a conflict of evidence between Ms Hunt and Ms Porter. Ms Hunt said that she had not terminated her employment during their final conversation. Against this Ms Porter said that she had been told that there was no job for her because she could not perform the work. The Tribunal finds in favour of Ms Porter's evidence because Ms Porter went to the A.C.C. immediately following these discussions. Ms Henderson of the A.C.C. told the Tribunal that Ms Porter believed that she had been dismissed. Further, Ms Henderson told the Tribunal that she visited Ms Hunt on Monday afternoon. Ms Henderson said that Ms Hunt had confirmed that Ms Porter had been dismissed that morning. ”
I wish to enlarge briefly upon the material facts and also comment upon aspects of them. Firstly, I refer to the Tribunal's acceptance that Ms Hunt summarily dismissed Ms Porter on 31 May 1993. Ms Henderson's evidence upon which the Tribunal placed particular reliance in this setting was unmistakably specific concerning Ms Hunt's acknowledgment to her at about 4.30 pm on 31 May that Ms Hunt had dismissed Ms Porter at about 11.00 am that day. Ms Hunt was a witness called under summons by Mr Devlin to give evidence for Classique Giftware Ltd. During her evidence-in-chief Ms Henderson explained that the respondent had told her, while in a distressed state, in the late morning of 31 May that she believed Ms Hunt had earlier that day dismissed her. Ms Henderson discussed the situation directly with Ms Hunt at about 4.30 pm. Ms Henderson expressly said at p 79 of the transcript that: 
“... I asked if the employment had been terminated and when I saw Mrs Hunt in the afternoon she agreed that it had, and on Patricia's [Ms Porter's] behalf I requested a termination of employment letter. ”
Following an exchange of questions and answers recorded at p 82 of the transcript Mr Devlin asked, and Ms Henderson responded, thus: 
“Q.
‘But Mrs Hunt, you've said, advised you that the employment would need to be terminated?’ 
A.
‘Mrs Hunt confirmed that she had terminated Patricia's employment that morning.’ ”
Under cross-examination by Mr More the following exchange materially occurred at pp 87-89 of the transcript, namely: 
“Q.
‘And the reason she gave you, she told you she'd been dismissed, was she clear in her mind about that?’ 
A.
‘Yes.’ 
Q.
‘Can you remember what her words were?’ 
A.
‘She was very upset, she was in tears um and the main reason was given as you know the fact as I've said that Mrs Hunt didn't like her sitting on the stool in the shop.’ 
Q.
‘Right now what was your, I mean there you are you've only heard one side of the story and it's from Patricia.’ 
A.
‘Right.’ 
Q.
‘And she's said she's been dismissed because she can't sit on a stool to do the dusting?’ 
A.
‘Hm hm.’ 
Q.
‘As a rehab officer what was your reaction?’ 
A.
‘Um.’ 
Q.
‘Could you believe what you were hearing?’ 
A.
‘Well as you say there's two sides to every story that's why I went round to see Mrs Hunt.’ 
Q.
‘Okay then, so then you telephoned Mrs Hunt was there anything in that conversation, did she confirm during that telephone call that Patricia had been dismissed?’ 
A.
‘Um. Mrs Hunt confirmed that 'She did not wish Mrs Porter to be sitting down to be doing any dusting during the two hours she was employed. Mrs Hunt advises that the normal procedure is for a person to kneel. She then went on to advise me that due to a downturn in trading etc Mrs Porter's full time contract was to be reduced in the near future to four hours a day.'’ 
Q.
‘Now pause there. I put that to Mrs Hunt she said that she never told you that at all, what's your system?’ 
A.
‘Patricia was very upset about that because she was under the impression that she was a full time employee but when she saw her employment contract she realised that she wasn't.’ 
Q.
‘But?’ 
A.
‘And she was employed up to 36 hours a week.’ 
Q.
‘But did Mrs Hunt tell you that on the phone that she was going to be reduced in any event to four hours a day?’ 
A.
‘Yes.’ 
Q.
‘What's your system of note taking, do you dictate a memo?’ 
A.
‘I use a dictaphone, I make notes while I'm talking and then I dictate it straight away.’ 
Q.
‘So this was a contemporaneous minute?’ 
A.
‘Hm hm.’ 
Q.
‘Now?’ 
A.
‘I at that stage contacted Mr McClousky [Mrs Porter's surgeon (Mr Poplawski) who had earlier operated upon her knee and ankle] as well.’ 
Q.
‘And what was his reaction?’ 
A.
‘Well he offered to come with me, he wasn't impressed.’ 
Q.
‘So then you went round at 4.30?’ 
A.
‘Yes.’ 
Q.
‘Now what was your understanding from talking to Mrs Hunt had Patricia been dismissed that morning or not?’ 
A.
‘Patricia had told me that she had. When I got ...’ 
Q.
‘No but what did Mrs Hunt say?’ 
A.
‘Yeh Mrs Hunt confirmed that she had been dismissed because of the kneeling thing.’ 
Q.
‘Right did she didn't talk about standing at all?’ 
A.
‘No.’ 
Q.
‘Thank you. Now you'll note for the 31st of May said that Mrs Hunt advises that several of the customers have complained to you. Now can you recall what the words were that she used, did she use that word complain or did she use commented, or noted, or.’ 
A.
No she used the word complained
Q.
‘Now did you on that because this is the evidence that Mrs Hunt has given, did you say to Mrs Hunt on that afternoon 'I agree with you, Patricia will not be able to do the work?'’ 
A.
‘No.’ 
Q.
‘Did you watch Mrs Hunt dusting the shelves and say 'I agree with you Patricia couldn't do that?' I mean did Mrs Hunt give you a demonstration or something?’ 
A.
‘Mrs Hunt pointed out to me where the, how close to the floor the ornaments were but they were perfectly assessable [sic] with a stool.’ 
Mr Grills 
Q.
‘They were what?’ 
A.
‘They were perfectly assessable if she was using the stool. They were very low.’ 
Q.
So in your view the dusting could be carried out quite satisfactory from the stool?’ 
A.
Oh yes.’ ”
Accordingly Ms Hunt, in quite unmistakable terms, told Ms Henderson at about 4.30 pm on 31 May that she (Ms Hunt) had dismissed the respondent earlier that day and why she dismissed her. 
Mr Devlin, both before the Tribunal and through submission during this appeal, strongly contended - paragraph 1.00 of his typed argument refers - that Ms Hunt did not summarily dismiss Ms Porter on 31 May but dismissed her upon written notice through her letter to the respondent dated 4 June 1993 (exhibit “B” refers). This particular letter provided: 
“Dear Mrs Porter 
EMPLOYMENT 
Further to our discussions with yourself and Sue Henderson on Monday 31 May 1993 we regret to advise that your employment is terminated in accordance with Clause 18 of the Employment Contract signed by us and yourself on the 21st August 1992. 
We realise that you are unable to work the two weeks required and therefore we enclose our cheque for the two weeks wages in lieu of notice in accordance with Clause 19 of the Employment Contract. 

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