Dadds v General Business Machines
[1996] IRCA 53
•08 February 1996
DECISION NO: 53/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - Claim of Unlawful Termination - whether applicant a CASUAL EMPLOYEE for the purposes of Regulation 30 B. - whether VALID REASON - whether termination HARSH UNJUST OR UNREASONABLE - COMPENSATION
INDUSTRIAL RELATIONS ACT 1988, ss.170EA
INDUSTRIAL RELATIONS REGULATIONS Reg. 30B
DADDS -v- GENERAL BUSINESS MACHINES
No. SA 95/1616
JUDICIAL REGISTRAR : L J FARRELL
PLACE : ADELAIDE
DATE : 8 FEBRUARY 1996
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SA 95/1616
B E T W E E N
JULIETTE LOUISE DADDS
APPLICANT
-and-
GENERAL BUSINESS MACHINES PTY LTD
RESPONDENT
MINUTES OF ORDER
BEFORE : JUDICIAL REGISTRAR L J FARRELL
PLACE : ADELAIDE
DATE : 8 FEBRUARY 1996
THE COURT ORDERS THAT:
The Respondent pay to the Applicant the sum of $8,000 pursuant to the provision of Section 170EE(2) within 21 days.
The Respondent pay to the Applicant the sum of $499 pursuant to the provisions of Section 170EE(5) within 21 days.
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 )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SA 95/1616
B E T W E E N
JULIETTE LOUISE DADDS
APPLICANT
-and-
GENERAL BUSINESS MACHINES PTY LTD
RESPONDENT
BEFORE : JUDICIAL REGISTRAR L J FARRELL
PLACE : ADELAIDE
DATE : 8 FEBRUARY 1996
REASONS FOR JUDGMENT
This is an application pursuant to Section 170EA of the Industrial Relations Act. The applicant claims that her employment was terminated unlawfully. She seeks compensation. She does not seek reinstatement.
The Applicant was employed from 4 September 1995 until 3 November 1995 to perform accounting and clerical duties on a full-time basis. The Applicant resigned from secure employment to commence her employment with the Respondent. She was well qualified and had considerable academic achievements. She is 24 years old.
It was the Applicant’s case that she was employed on a permanent basis at a salary of $26,000 per annum. The Respondent claimed that the applicant was a casual employee engaged for 3 months at a casual rate of pay (equivalent to $26,000 per annum) after which she would, if the employment relationship worked out, become permanent and her wage would then drop to a figure not below $25,000 per annum, which was the amount of her salary from her previous employment.
The crucial and conflicting evidence in this matter concerned the pre employment interviews between the Applicant and Mr Stubbs, General Manager of the Respondent. On balance I preferred the applicant’s evidence concerning what occurred at the interviews. Her evidence was clear and consistent with her subsequent conduct. Mr Stubbs, on the other hand, had varying degrees of recollection about what had occurred. Mr Stubbs never provided any documentation to the Applicant about her subsequent employment although the Applicant had requested that he do so on more than one occasion.
Evidence was led about other matters which might determine whether the Applicant’s employment was casual, but in my view the full-time nature and my findings of fact regarding the pre-employment interview override any other considerations in this matter. In my view the Applicant does not fall within the category of persons excluded from the provisions of the Industrial Relations Act pursuant to Regulation 30B
The Applicant was called into Mr Stubbs’ office at 5 pm on Friday 3 November 1995. She was told by Mr Stubbs that the employment relationship was not working out and she was being let go. The Applicant became distressed and asked why. She was given some vague reasons by Mr Stubbs relating to her teamwork and not putting in enough work.
In my view the Respondent had no valid reason for the termination of the Applicant’s employment. The employer has breached Section 170DC by failing to give the Applicant an opportunity to respond. Further, the manner in which the Applicant was dismissed, the failure to consult with her or to give notice, render the termination of her employment harsh, unjust and unreasonable. In my view the termination of the Applicant’s employment by the Respondent was unlawful.
The Applicant did not seek reinstatement. She gave evidence of having been unable to find alternative employment since her employment was terminated, other than casual hotel work from which she has earned approximately $90-00. The Applicant, although suffering none of the impediments that prevent many people from finding employment, remains unemployed and with no obvious prospects of finding employment some 2 and a half months after the termination of her employment. In assessing the amount of compensation to be awarded I have taken into account the likelihood of the applicant’s employment coming to an end lawfully. It seems to me that the applicant, given her evidence about her dissatisfaction with the duties she was required to perform for the respondent, would not have continued in employment with the respondent for more than a few months. In all the circumstances I think an appropriate award for damages is $8,000.
Counsel for the Applicant sought an order for damages for breach of contract. There was insufficient evidence before me upon which such a claim could succeed. Nor was there sufficient evidence to make any award to the Applicant for entitlements she may have to sick leave and annual leave, the first mention of such claims being made in the Applicant’s counsel’s final address. In my view the Applicant is entitled to the sum of $499-00 being the equivalent of one week’s notice to which she is entitled pursuant to S170 DB of the Industrial Relations Act.
I certify that this and the preceding page are a true copy of the reasons for my judgment.
DATE OF HEARING : 17 January 1996
FOR THE APPLICANT : Ms Garson
FOR THE RESPONDENT : Mr Porter
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