Ballgobin v JJC Electrics Pty Ltd
[2011] FMCA 993
•5 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BALLGOBIN v JJC ELECTRICS PTY LTD | [2011] FMCA 993 |
| INDUSTRIAL LAW – Fair work – termination of employment – unfair dismissal – whether on balance of probabilities proper notice was given. |
| Applicant: | JEAN BALLGOBIN |
| Respondent: | JJC ELECTRICS PTY LTD |
| File Number: | SYG 2463 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 December 2011 |
| Date of Last Submission: | 5 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2011 |
REPRESENTATION
| For the Applicant: | In person |
| For the Respondent: | In person |
ORDERS
Application dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2463 of 2011
| JEAN BALLGOBIN |
Applicant
And
| JJC ELECTRICS PTY LTD |
Respondent
REASONS FOR JUDGMENT
The applicant is an apprentice who signed a training contract with the respondent on 3 April 2011. He was to be trained for his Certificate III in Electro-technology. The training contract commenced on 1 April 2011 and the nominal term of the contract was 48 months. There was a probationary period of 3 months. The applicant is not a native Australian. He claims that he obtained some electrical qualifications in his home country and that he was undertaking a course at TAFE. He claims that he was told by the TAFE instructors that he was a person that could be treated as a fourth year apprentice, although this is not entirely borne out by the nominal term of the training contract which appears in the document.
The applicant says that he last worked for the respondent on 13 May 2011, a Friday, and that he was summarily dismissed by telephone that afternoon. He claims that he should be paid the sum of $286.34 in lieu of notice. The respondent employer appears through its director, Mr Cappadella. Mr Cappadella says that when he took Mr Ballgobin on, Mr Ballgobin told him that he should be paid as a fourth year apprentice, and that is what occurred.
However, about two weeks before the dismissal he was informed by MEGT, which is an Australian apprenticeship centre, that in fact the applicant should be treated as a first year apprentice and paid accordingly. The only claim that is made in respect of the notice period is for payment on the basis of a first year apprentice and this classification level, found at section 19 of the form completed by the applicant or on his behalf, indicates that he was a first year apprentice.
Mr Cappadella says that when he was told that the applicant was only to be paid as a first year apprentice, he thought that the applicant had misled him. He was also concerned about the applicant’s behaviour on the job. He said that he was late for work and took time off in the middle of the day. Mr Cappadella says that he decided, after all of this, that he wished to dismiss Mr Ballgobin, and he asked his wife to prepare a written one week’s notice document.
A document of that type dated 5 May 2011 was handed to me, it was apparently sent to the Fair Work inspector, Mr Dixon, who investigated the claim. Mr Ballgobin says he has never seen it, he makes the point that it wasn’t signed, but this document would not have been signed if it was sent directly to the Fair Work inspector, no doubt through email.
The question I have to ask myself is whether I can be satisfied on the balance of probabilities that Mr Ballgobin was not given written notice and was in fact telephoned on Friday 13 May 2011 and told not to come in the following Monday, because only if I can be satisfied to that degree can he succeed. These cases are always difficult: one hears two different stories from two different people, frequently they are diametrically opposed.
I take into account the fact that Mr Ballgobin appears to have managed to persuade Mr Cappadella to pay him as fourth year apprentice when he was not one. Whilst he may have taken advantage of his understanding of what his teacher said to him, he was the person who, at that stage, best knew what his status really was. It seems to me to indicate perhaps some economy with the truth.
Mr Cappadella, on the other hand, has come here today, no doubt at quite a considerable loss in terms of his trade, he is resisting a claim for $284.00. The righteous indignation which he expresses is, to my mind, not forced. In the circumstances, I find it very difficult to come to the required state of satisfaction and, not being able to do so, I dismiss the claim.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 12 December 2011
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