Ansett and Webb v Mainbrook Holdings Pty Ltd t/as Australian Ice Productions

[1995] IRCA 93

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2629 of 1994
VI 2630 of 1994

BETWEEN:

KATHERINE SARAH ANSETT & ANOR
First Applicant

AND

KYLIE WEBB & ANOR
Second Applicant

AND

MAINBROOK HOLDINGS PTY LIMITED
Respondent

REASONS FOR JUDGMENT (EX TEMPORE)
(Revised from Draft Transcript)

7 March 1995  Judicial Registrar Murphy

Separate proceedings were commenced on behalf of the first applicant, Katherine Sarah Ansett (“Ansett”), and the second applicant, Kylie Webb (“Webb”), (“the Applicants”) by the Media, Entertainment and Arts Alliance, the third applicant, against the respondent.  As there were common questions of fact and law in the proceedings, I ordered that they be consolidated.  The respondent has not appeared at the hearing.  The representative for the applicants tendered to the Court affidavits of service of all the relevant documents on the respondent at its registered office in Herdsman, Western Australia.  There are also on the Court file copy letters to the respondent indicating that the matter was to be heard on this day.  In those circumstances, it is appropriate to proceed with the hearing of the matter. 

The First Applicant

The first applicant, Ansett, gave evidence that she was employed by the respondent, commencing on 14 October 1994, as an assistant choreographer.  She was to work as a choreographer on a large scale ice show, which was to tour Australia for a period of at least 60 weeks.  A week later, the title of her position was changed to be assistant choreographer/assistant director.  It was agreed between herself and Mr Morriss of the respondent that she would be paid at the rate of $404.00 per week and it was further agreed between them that that would increase to $808.00 per week from 20 November 1994.  It was also agreed between Mr Morriss and herself that she would be paid an incidentals allowances at the rate specified by the Actors Equity rules for a trip to Sydney and Brisbane recruiting staff for the production.  She claimed an amount of $184.80.  She was paid wages on two occasions and on a third occasion she was also paid, but this cheque was not met by the bank.  Subsequently, a substitute cheque was issued and met by the respondent.  The total amount that she was paid while she was employed there was $4,040.00.

She claims that in the period until her employment was terminated, there was an amount of owing of $2,303.00 in wages.

She worked for the respondent until 2 December 1994 and in the latter period was working at an office at 145 Brunswick Street, Fitzroy.  On 29 November, police attended at the office and advised some 15 to 20 members of the pre-production group working at the office that they should vacate the premises.  They then moved office to another space that they had been working in, 26 Gertrude Street, Fitzroy.  It was at that address that they received, on 2 December 1994, a facsimile dated 28 November 1994, which indicated that their employment was terminated from 30 November 1994.

The first applicant gave evidence that before she commenced employment with the respondent, she had two part-time positions earning her $300.00 per week. Since her termination she has made endeavours to obtain employment, but has until last week been unsuccessful. She claims arrears of wages and non-payment of expenses. The first applicant also claims under section 170EE of the Industrial Relations Act (“the Act”) compensation in the sum of $10,504.00 based on the amount that she would have earned had the employment with the respondent continued.

The Second Applicant

The second applicant, Webb, gave evidence that she was, prior to October 1994, a freelance production manager, and was approached by the respondent and offered a position as a production manager.  It was to be first on this ice show production, to be employed until the show opened in around April this year.  She was then to be employed in other undefined capacities with the respondent.

She gave evidence that she commenced work casually on 17 October.  There was an agreement between herself and Mr Morris of the respondent that she was to be paid $250.00 for three days casual work.  She commenced full-time employment on 20 October.  Her full-time pay was to be $665.00 a week.  It was subsequently agreed between herself and the respondent that this would be increased to $950.00 per week.  There were also discussions between herself and Mr Morriss of the respondent and an agreement that the respondent would pay for the calls on her mobile phone. 

While employed she was paid one amount of wages of $906.00 and a further amount of $1283.00.  This latter cheque was not met but after her termination it was met.  She gave evidence that she had received a total amount of wages of $2660 over her period of employment.  She should have received a total amount of $4095.  She was thus owed $2435.  She also gave evidence that there was an amount of $92 owing for her mobile phone account.  She too was terminated on 2 December in the same circumstances as the first applicant.

The second applicant gave evidence that since the termination of her employment she has made efforts to obtain other employment.  Those efforts were unsuccessful, except for a period of about two weeks, until she obtained full time employment on 13 February this year.  She claims that as a result of the acceptance of the employment with the respondent she gave up the opportunity be employed by a theatrical entrepreneur over the 1994/1995 summer holiday period.  She would have been paid $750 per week had she not been committed to the respondent.

She claims $7,600.00 compensation calculated at the rate of $950 per week for a period of 10 weeks less the earnings that she has achieved.

Accrued Jurisdiction

The claims for the arrears of wages and in the case of the first applicant, the travel expenses, and the second applicant, the mobile phone expenses, are made by the applicants in the accrued jurisdiction of this Court. I am satisfied that the court has jurisdiction to hear and determine those matters.

Has There Been A Breach Of The Act?

In relation to the applicants I am satisfied the Court has jurisdiction. They are employees for the purposes of the Act, and the jurisdiction of the Court is not excluded under any regulation. I am further satisfied in relation to the applicants that there has been a breach of the Act in that they have not been given proper notice of termination as required under section 170DB.

I am also satisfied that there has been a breach of section 170DE(1) of the Act, in that the respondent did not have a valid reason to terminate their employment.

Remedy

As indicated I am satisfied that the Court has jurisdiction under its accrued jurisdiction to make orders in relation to arrears of wages and incidental expenses in relation to the  applicants and I propose to make orders in the amounts sought.

It is clear that reinstatement is not a practicable remedy in this case and neither applicant sought reinstatement.

The question of compensation gives me some concern.  I am satisfied, however, that applicants, in reliance on the offers of positions with the respondent, gave up, in the case of the first applicant, secure part time employment, and in the case of the second applicant, a position that had been offered to her.

I am satisfied that the applicants are entitled to compensation referrable to the amounts that they would have earned had they remained employed by the respondent.  I propose to make an order of compensation of $10,500.00 in the case of the first applicant and $7,600.00 in the case of the second applicant.

I am also satisfied, as I have indicated, that there has been a breach of section 170DB of the Act. I decline however to make an award of damages for the breach of that provision on the basis that the amount of damages is included the awards of compensation that I have earlier referred to.

Orders Of The Court.

1. In the matter of the first applicant:

That the respondent pay to the first applicant the sum of $2,488.20 for arrears of wages and expenses and $10,500.00 compensation within 21 days of this date.

1. In the matter of the second applicant:

That the respondent pay to the second applicant the sum of $2,527.00 for wages and expenses and $7,600.00 compensation within 21 days of this date.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of Judicial Registrar Murphy as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:

Dated:  

Representative for the First Applicant	Ms Anne Gooley of Media Entertainment & Arts Alliance.
Representative for the Second Applicant:	Ms Anne Gooley of Media Entertainment & Arts Alliance.
No Appearance by the Respondent.
Dates of hearing:	7 March 1995
Date of Judgment:	7 March 1995

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - applicants terminated without reason and notice - accrued jurisdiction - claims for arrears of wages and incidental expenses - compensation - applicants had given up employment to accept positions - compensation assessed on basis of what they would have earned with respondent.

Industrial Relations Act 1988, ss.170DB, 170DE and 170EE.

KATHERINE SARAH ANSETT & ANOR -v- MAINBROOK HOLDINGS PTY LTD T/AS AUSTRALIAN ICE PRODUCTIONS

NO. VI 2629 of 1994

KYLIE WEBB & ANOR -v- MAINBROOK HOLDINGS PTY LTD T/AS AUSTRALIAN ICE PRODUCTIONS

NO. VI 2630 of 1994

Before:     MURPHY JR

Place:      MELBOURNE

Date:       7 MARCH 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2629 of 1994
VI 2630 of 1994

BETWEEN:

KATHERINE SARAH ANSETT & ANOR
First Applicant

AND

KYLIE WEBB & ANOR
Second Applicant

AND

MAINBROOK HOLDINGS PTY LIMITED
Respondent

MINUTES OF ORDER

7 March 1995  Judicial Registrar Murphy

THE COURT ORDERS:

1. In the matter of the first applicant:

That the respondent pay to the first applicant the sum of $2,488.20 for arrears of wages and expenses and $10,500.00 compensation within 21 days of this date.

1. In the matter of the second applicant:

That the respondent pay to the second applicant the sum of $2,527.00 for wages and expenses and $7,600.00 compensation within 21 days of this date.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.