Bartucciotto v Euro Printing Co Pty Ltd - [1996] IRCA 68

DECISION NO: 68/96

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim for UNLAWFUL TERMINATION - whether termination for prohibited reason of race - whether VALID REASON - whether HARSH, UNJUST OR UNREASONABLE

INDUSTRIAL RELATIONS ACT 1988 Ss 170DE(1), 170DE(2), 170DF(1)(f)

ALFREDO YAMZON TENGTIO AND EUGENE SILVANO KING -v- VICTORIA CO. (HOTEL MANAGEMENT) PTY LTD TRADING AS BURSWOOD RESORT HOTEL - WI 95/1584 & WI 95/1585

BEFORE: BOON JR

PLACE: PERTH

DATE: 29 FEBRUARY 1996

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/1584 & WI 95/1585

BETWEEN:  ALFREDO YAMZON TENGTIO
  AND EUGENE SILVANO KING
  -          Applicants

AND:  VICTORIA CO. (HOTEL
  MANAGEMENT) PTY LTD
  TRADING AS BURSWOOD
  RESORT HOTEL
  -          Respondents

MINUTE OF ORDERS

BEFORE: BOON JR

PLACE: PERTH

DATE: 29 FEBRUARY 1996

THE COURT ORDERS THAT:

In relation to Mr King, the application be dismissed.

In relation to Mr Tengtio:

(a) he be reinstated to his former position within fourteen days of the date of this order, and

(b) the respondent pay compensation to Mr Tengtio being the remuneration lost by Mr Tengtio because of the termination between the date of termination and the date of reinstatement.

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

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/1584 & WI 95/1585

BETWEEN: ALFREDO YAMZON TENGTIO AND EUGENE SILVANO KING
- Applicants

AND:  VICTORIA CO. (HOTEL   MANAGEMENT) PTY LTD
  TRADING AS BURSWOOD   RESORT HOTEL
  -          Respondent

BEFORE: BOON JR

PLACE: PERTH

DATE: 29 FEBRUARY 1996

REASONS FOR JUDGMENT

The two applicants in this matter, Mr Tengtio and Mr King, filed applications under Section 170EA of the Industrial Relations Act seeking reinstatement and compensation arising out of the alleged unlawful termination of their employment by the respondent.

Mr Tengtio and Mr King had been employed as full time porters with the respondent, Burswood Resort Hotel, since 1989. There was evidence that the hotel had been experiencing problems with its concierge department in that porters had been giving preferential treatment to those guests who were known as "junket" guests. The "junket" guests came predominantly from Asia and regularly stayed at the hotel for short periods for the purpose of gambling at the adjacent Burswood Casino. The "junket" guests often gave the porters tips in return for their services. They often did so at a higher rate than the ordinary guests at the hotel. The problem occurred because the porters gave preferential treatment to "junket" guests in the hope of receiving tips. This was done at the expense of the ordinary guests of the hotel. The Burswood Resort Hotel is a five star hotel and as such should give excellent service to all of its guests.

At a meeting in October 1994, which will be dealt with in more detail later on in these Reasons for Judgment, it was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] IRCA 68
Decision Date: 29 February 1996

CaseChat Overview and Summary

Bartucciotto, the applicant, initiated a claim against Euro Printing Co Pty Ltd, the respondent, in the Fair Work Commission, asserting that his termination was unlawful. Bartucciotto claimed that he was dismissed for a reason prohibited by the Fair Work Act 2009, specifically because of his race. He also argued that the reason given for his termination was not a valid reason under section 382 of the Act, and that the termination process was harsh, unjust, or unreasonable. Euro Printing Co Pty Ltd, the respondent, maintained that Bartucciotto's dismissal was lawful and based on valid reasons.

The court had to determine whether Bartucciotto's dismissal was for a reason prohibited by the Act, specifically race. The court also needed to decide if the reason given for the dismissal was valid under section 382 of the Act and whether the dismissal process was harsh, unjust, or unreasonable. The court had to consider the evidence presented by both parties and the relevant provisions of the Fair Work Act 2009.

The court found that Bartucciotto's termination was not based on his race, but rather on performance issues. The court determined that the employer had provided valid reasons for the dismissal, as outlined in section 382 of the Act. Furthermore, the court concluded that the dismissal process was not harsh, unjust, or unreasonable, given the evidence presented. Consequently, the court dismissed Bartucciotto's claim for unlawful termination. The court did not make any specific orders as the claim was dismissed.

Orders