Cassidy and Dalley and Niass

[1994] IRCA 195

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
  No TI 124 of 1994
TASMANIA DISTRICT REGISTRY

B E T W E E N :

PAULA LYN CASSIDY
  Applicant

A N D :

SANDRA KAY DALLEY AND LEANNE LEASLIE NIASS
  Respondents

COURT:     NORTHROP J

PLACE:     HOBART

DATE: 8 DECEMBER 1994

REASONS FOR JUDGMENT

As I have indicated earlier, the facts which have been disclosed to the Court in this proceeding show a very unusual set-up and arrangement which had been entered into between the employer and this particular employee.  It appears to have been entered into in ignorance or in defiance of the provisions of an award, the need for employers and employees to observe the terms of an award and the fact that the terms of an award can be enforced by the law.  There are also unusual features in relation to the fact that there may well have been criminal acts committed by one or more of the persons concerned in this case.  I did give serious consideration about whether I should refer this matter to the appropriate authorities for further investigation of those matters.  But on further reflection, and in the absence of any evidence in relation to the respondent being a party to them, and in view of the fact that apparently the applicant is now making payments to a Commonwealth authority, I propose not to take that step.  It seems clear that there have been breaches of an award in this case, but that is not a matter for me to determine in a case of this kind.  The Act provides its own remedies for breaches of an award by a party to an award.

It is clear, on the evidence, as I indicated during submissions, that here the employer dismissed the employee by the giving of one week's notice in conformity with the award, for the reason that the employee said she would no longer work overtime hours without payment for that overtime.  In the circumstances, that is sufficient to justify a finding, and I do find, that the termination was unlawful in the terms of the Act.  The question then arises as to what compensation should be paid.

The business has been sold and there is no real prospect of reinstatement. The employee does not now seek reinstatement. She has now obtained another job. I do not know when she started that job or what salary she is getting for it, but the compensation is to be determined in accordance with section 170EE of the Industrial Relations Act 1988. I set out the relevant parts of subsection 170EE (3):

"(3) In working out the amount of the compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment, but the amount of compensation:

(a)must not exceed, in respect of any employee, the amount of the remuneration that would have been received by the employee in respect of the period of 6 months that immediately followed the day on which the termination took effect if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect; and

(b)must not exceed, in respect of an employee who is not employed under award conditions, the applicable amount on the day on which the termination took effect."

The officer of the Transport Workers Union who has appeared for the applicant has sought an amount of compensation in the sum of $10,570.21, based upon a complex calculation, having regard to what should have been paid under the award, including amounts for overtime, meal allowances and matters of that kind, including superannuation. These calculations are set out in a document called Particulars of Compensation Sought by Applicant Pursuant to Section 170EE and project those matters to a maximum of 26 weeks resulting in an amount of $17,768.40, but that amount being discounted for a number of reasons, having regard to the short period of the employment from the end of January 1994 until 3 June, just over five months, and based upon what should have been paid. In my opinion, as I expressed in the course of submissions, the amount claimed, even though discounted, is grossly overstated.

The wage that was in fact being paid was of the order of $370.00 per week. The termination was unlawful, harsh and unjust, but this is a case where the employment had lasted for a short period only, just over five months. I take into account the amount of the wage in fact being paid and ignoring completely the fact that that amount was under the award payments. I do that on the very peculiar circumstances of this case. In my opinion, a fair compensation in this case is an award of $4000.00 and I so determine. Accordingly an order is made that the respondents pay the applicant the sum of $4000.00 by way of compensation under the provisions of section 170EE of the Industrial Relations Act.

The respondent has sought some time to pay, but I do not propose to go into that matter today.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of The Honourable Justice Northrop.

Associate:

Date: