Broadley v Peter Markovic Pty Ltd - [1997] IRCA 225

DECISION NO:225/97

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - ONUS OF PROOF - VALID REASON - CONDUCT AND PERFORMANCE - WARNING - OPPORTUNITY TO RESPOND - whether ILLNESS or TEMPORARY ABSENCE a reasons for termination - REMEDY - whether REINSTATEMENT impracticable where small employer - COMPENSATION - assessment of likelihood that employment would have continued.

Workplace Relations Act 1996 (Cth) ss170DC, 170DE, 170DF, 170EA, 170EDA, 170EE.
Workplace Relations Regulations Reg 30D(2)

Termination of Employment Convention, 1982 Art. 7
Termination of Employment Recommendation, 1982 Paras 7 and 8.

.

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199
Perrin v Des Taylor Pty Ltd (1995) 58 IR 254
Drury v BHP Refractories Pty Ltd (1995) 62 IR
Izdes v L G Bennett & Co Pty Ltd (t/a Alba Industries )(1995) 61 IR 439
Reader v Wyndham Lodge Nursing Home Inc (unreported, Industrial Relations Court of Australia, Moore J, 26 March 1997)

Davis v Portseal Pty Ltd (1996) 70 IR 320; on appeal (unreported, Industrial Relations Court of Australia, Wilcox CJ, Lee and Marshall JJ, 10 March 1997).

BROADLEY v PETER MARKOVIC PTY LTD
VI/1176 of 1997

Before:  MURPHY JR
Place:  MELBOURNE
Date:  18 JULY 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI/1176 of 1997

BETWEEN:

AMANDA JANE BROADLEY
Applicant

AND

PETER MARKOVIC PTY LTD
Respondent

BEFORE:     MURPHY JR
PLACE:       MELBOURNE
DATE:          18 JULY 1997

MINUTES OF ORDERS

The Court declares that the respondent has breached ss170DC, 170DE(1) and 170DF(1)(a) of the Workplace Relations Act 1996 (Cth);
The Court orders that the respondent pay to the applicant the sum of $5,863;
The respondent may offset against the sum in paragraph 2 hereof any amounts remitted to the Australian Taxation Office on the applicant’s account.

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
VICTORIA DISTRICT REGISTRY

VI/1176 of 1997

BETWEEN:

AMANDA JANE BROADLEY
Applicant

AND

PETER MARKOVIC PTY LTD
Respondent

BEFORE:     MURPHY JR
PLACE:       MELBOURNE
DATE:          18 JULY 1997

REASONS FOR DECISION

Introduction.
This is an application for a remedy under s170EA of the Workplace Relations Act 1996 (formerly the Industrial Relations Act 1988) (“the Act”). The applicant alleges that her employment was terminated by the respondent on 16 December 1996 in circumstances that contravened ss170DC, 170DE(1) and 170DF(1)(a) of the Act. The respondent’s defence was that the applicant was lawfully terminated for reasons related to her conduct and performance.

Background.

The respondent is a real estate agency operating in the inner northern suburbs. The applicant commenced employment in July 1996 as a receptionist. Her duties were to greet customers, answer the telephone and disperse calls, take messages, and do some typing. She was interviewed for the position by the principal of the respondent, Mr Peter Markovic. I am satisfied that Ms Aileen Paton also participated in that interview.…

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.

Continue reading Broadley v Peter Markovic Pty Ltd

Details

AGLC: Broadley v Peter Markovic Pty Ltd [1997] IRCA 225
Case: [1997] IRCA 225
Decision Date: 18 Jul 1997

CaseChat Overview and Summary

The applicant, Amanda Jane Broadley, commenced proceedings against the respondent, Peter Markovic Pty Ltd, alleging that her employment was terminated in contravention of ss170DC, 170DE(1) and 170DF(1)(a) of the Workplace Relations Act 1996. Broadley sought a remedy under s170EA of the Act, including reinstatement or compensation for loss of earnings. The central issues before the court were whether the respondent had breached the statutory obligations under ss170DC, 170DE(1) and 170DF(1)(a) of the Act, and if so, what remedy should be awarded to Broadley. The court found that the respondent had breached ss170DC and 170DE(1) of the Act by failing to provide Broadley with a fair opportunity to respond to the allegations against her, and s170DF(1)(a) by terminating her employment for reasons that included her absences due to illness, which the respondent was able to accommodate. The court also found that reinstatement was impracticable due to the breakdown of relations between Broadley and the respondent’s principal. Instead, the court ordered the respondent to pay Broadley compensation in the amount of $5,863, representing the likely earnings she would have earned over the next three months had her employment continued. The respondent could offset any amounts remitted to the Australian Taxation Office on Broadley’s account against this sum.

Orders