Connally v Malifind Pty Ltd

[1995] IRCA 84

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2473 of 1994

BETWEEN:

BETTINA BYSOUTH
Applicant

AND

CITY FAMILY HOTEL
Respondent

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

28 February 1995  Judicial Registrar Fleming

In this matter a summary of the evidence is that the applicant was approached by a representative of the respondent on 14 October 1994 and invited to audition for a position as a dancer in the respondent’s establishment.  After successfully auditioning on 21 October 1994 the applicant and another woman were offered permanent employment on Friday and Saturday evenings between 12:00 midnight and 3:00am at $20.00 per hour.  The applicant worked on 22 October, 28 October and 29 October.  It is the applicant's evidence that on 22 October 1994 a representative of the respondent, who is known as Steve, made advances towards the applicant which were unsolicited.  The applicant stated that Steve called her into his office and said “This is for you and you only” and he asked her to stand up and gave her a bear hug and “he pushed his penis up against me and it just didn’t feel like a normal cuddle”.  He also brushed passed her in the corridor touching her left breast.

It is the further evidence of the applicant that the person known as Steve made derogatory comments on 22 October 1994 about the applicant and her family and about Aborigines and Kooris generally.  The applicant gave further evidence that she complained to the head bouncer on 28 October 1994 about the so-called cuddle she had received from the person known as Steve and that this conversation was disclosed to Steve by the bouncer.  The applicant gave evidence that on 29 October 1994 the representative of the respondent, Steve, said that this would be the applicant's last night as the management did not want any more dancers.

The applicant's evidence is that Steve apologised for brushing up against her breast but did not mention the other episode wherein he pressed himself against her.  The applicant also gave evidence that the person known as Steve said he did not want any sexual harassment charges against him because he was getting a divorce.  The applicant further stated that at 2.30am on 29 October the applicant and her co-worker, Ms Cadzow, felt uncomfortable and went to get their pay.  She was given $50.00 and her co-worker was given $60.00, and the applicant gave evidence she was humiliated by Steve and told to leave via the back door under the escort of bouncers.  The applicant said that she felt like a dog.

The respondent has failed to appear today.  Mr Ireland for the applicant submitted that he had a telephone conversation, this day, with a Mr Viney, who is apparently an estate agent.  Mr Ireland submitted that Mr Viney said the respondent would not be appearing today as he was sick.  It was Mr Ireland’s submission that there were several managers who could appear for the respondent and he sought leave to proceed.

The court proceeded with this application in the absence of the respondent, having satisfied itself that the respondent had been served with the application and the affidavit of service of James William Seddon was filed on 12 January 1995.  The court accordingly in the absence of any evidence to the contrary finds that there was no valid reason for the termination of the employment of the applicant and that her termination is harsh, unjust and unreasonable.

In all the circumstances, I propose to make an award of compensation and I fix the general amount of compensation in the amount of $6000 and I make no further order.

Order Of The Court

1. That the respondent pay the applicant compensation in the amount of $6,000.00.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of Judicial Registrar Fleming as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:

Dated:  

Solicitors for the Applicant: Counsel for the Applicant:	J. A. Middlemis Mr J. Ireland
No appearance made by Respondent.
Date of hearing:	28 February 1995
Date of Judgment:	28 February 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 2473 of 1994

BETWEEN:

BETTINA BYSOUTH
Applicant

AND

CITY FAMILY HOTEL
Respondent

MINUTES OF ORDER

28 February 1995  Judicial Registrar Fleming

THE COURT ORDERS THAT:

1. That the respondent pay the applicant compensation in the amount of $6,000.00.

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