Drapaniotis v Prospect Foodland
[1996] IRCA 54
•12 January 1996
DECISION NO: 54/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - Claim of Unlawful Termination - whether termination at the initiative of the employer
INDUSTRIAL RELATIONS ACT 1988, ss.170EA
DRAPANIOTIS -v- PROSPECT FOODLAND
No. SA 95/1548
JUDICIAL REGISTRAR : L FARRELL
PLACE : ADELAIDE
DATE : 12 JANUARY 1996
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SA 95/1548
B E T W E E N:
KONSTANTINA DRAPANIOTIS
Applicant
- and -
PROSPECT FOODLAND
Respondent
MINUTES OF ORDER
BEFORE:JUDICIAL REGISTRAR FARRELL
PLACE : ADELAIDE
DATE : 12 JANUARY 1996
THE COURT ORDERS THAT:
The Application is dismissed.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SA 95/1548
B E T W E E N:
KONSTANTINA DRAPANIOTIS
Applicant
- and -
PROSPECT FOODLAND
Respondent
BEFORE : JUDICIAL REGISTRAR FARRELL
PLACE :ADELAIDE
DATE :12 JANUARY 1996
REASONS FOR JUDGMENT DELIVERED EX TEMPORE REVISED FROM TRANSCRIPT
This is an Application pursuant to Section 170EA of the Industrial Relations Act. The applicant claims that her employment was terminated unlawfully. The applicant had been employed at Prospect Foodland from January 1989. From mid-1989 she held the position of checkout supervisor.
In September 1994 the applicant advised her then employer, Mr Feema, that she was pregnant and either then or in October 1994 she advised him that she would work until mid-April 1995, approximately one month before her child was due to be born.
She also wrote the words “Dina’s last day” on a calendar at work on the date 13 April 1995. On 31 January 1995 the business was bought by the respondent.
At no time did the applicant take any steps to avail herself of the right to maternity leave either pursuant to the relevant award, the State Act or the Industrial Relations Act. It is not clear to me, as the relevant award was not put before me, whether she in fact had such a right at the time that her employment came to an end. On 6 March 1995 the applicant advised Mr Marotti that she had been advised to finish work as soon as possible by her doctor. The last day she worked was 11 March 1995. Her somewhat vague evidence was that she had given a verbal indication that she would come back within a year.
Mr Marotti, director of the respondent, gave evidence that he broached the question of whether the applicant was seeking maternity leave and requested that if she did want maternity leave she should provide some documentation to him. In evidence he stated that the two reasons he wanted to know this were firstly, whether he needed to keep her position open, and secondly, because he needed to seek some payment from the previous owner with respect to her possible future entitlement to long service leave.
On 1 August 1995 the applicant sought to return to work by telephoning Mr Marotti. He advised her that she had told him that she was leaving. The applicant claimed that she had taken maternity leave. Mr Marotti advised her that he had no position for her. Ultimately these proceedings were commenced by the applicant on 18 October 1995. However, there was no contest ultimately as to whether the applicant required an extension of time in which to bring these proceedings.
In relation to the evidence, I preferred the evidence of Mr Marotti. He gave his evidence in a straightforward matter-of-fact way. The applicant’s evidence was somewhat vague and left me with the impression that she was not completely truthful.
In my view the applicant brought her employment to an end on 13 April 1995. As such there is no jurisdiction for me to deal further with the matter. The application is therefore dismissed.
I certify that this and the preceding page are a true copy of the reasons for my judgment.
DATE OF HEARING : 12 JANUARY 1996
FOR THE APPLICANT : Mr Saies
FOR THE RESPONDENT : Mr Manuel
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