Eli John Paul v Oxenbury Pty Ltd
[1995] IRCA 234
•19 May 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1292 of 1995
B E T W E E N
ELI JOHN PAUL
Applicant
A N D
OXENBURY PTY LTD
Respondent
Before: Judicial Registrar Staindl
Place: Melbourne
Date: 19 May 1995
REASONS FOR JUDGMENT (Ex Tempore)
(Revised from Transcript)
In July 1994, Eli John Paul ("the applicant") was employed by Oxenbury Pty Limited ("the respondent"). The respondent had a franchise with Solomons Carpets and the applicant was employed as a salesperson in respect of this business. He was employed on a salary of $25,000 per annum with the personal use of a fully maintained company vehicle. He also received commission on sales which averaged $100 per week.
Towards the end of 1994 the respondent lost its franchise with Solomons Carpets. Employees of the respondent were asked to forego some wages owing to them until February 1995. Following Christmas 1994, the applicant received payment for some time but this apparently ceased in early January 1995. A meeting was held between the respondent's employees and Mr Jason Lippingwell (a director of the respondent) on 18 January 1995. Mr Lippingwell requested that the staff again agree to defer receiving payment of monies owing to them until March 1995. The applicant was unhappy about this and in a subsequent telephone conversation told Mr Lippingwell that he was not prepared to wait any longer for payment. Mr Lippingwell then said, "I guess you will be looking for another job."
The applicant lodged an application under section 170EA of the Act, seeking compensation in respect to his unlawful termination. At the hearing before me the respondent was not represented, although I am satisfied as to service of the application. The respondent, Oxenbury Pty Limited, is no longer trading in its former business.
Subsequent to his termination, the applicant obtained other employment on 7 February 1995 with another store which sells carpets, under the business name of Solomons Carpets. He receives the same remuneration as he had been receiving with the respondent.
I find as follows:
The respondent did not have a valid reason for terminating the applicant's employment;
Re-employment is impracticable as the respondent is no longer trading;
The applicant is entitled to compensation of $3203.85.
I calculate the amount of compensation as follows:
The applicant's salary was $480.77 per week. He also received commission of $100 per week and the use of the company vehicle was valued at $60 per week. That makes a total of $640.77 per week. Between the time of termination and obtaining another job there is about three weeks. In addition, at the time of termination, the applicant should have been paid two weeks’ salary owing to him, making a total of five weeks’ remuneration owing to him. I do not take into account any underpayment of wages for the period December 1994 to early January 1995. The respondent has no notice of such claim. Accordingly, I order that the respondent is to pay to the applicant the sum of $3,203.85, being 5 weeks’ remuneration at $640.77 per week. Such amount is due immediately.
THE COURT ORDERS THAT:
The Respondent Oxenbury Pty Ltd pay to the Applicant the sum of $3,203.85 by way of compensation.
I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl.
Associate:
Dated:
Solicitors for the Applicant: E L Richards & Co
Applicant in person
No appearance for the Respondent
Date of hearing: 19 May 1995
Date of judgment: 19 May 1995
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - no valid reason - reinstatement impracticable - compensation.
Industrial Relations Act 1988 ss.170 EA
Eli John Paul -v- Oxenbury Pty Ltd
No. VI 1292 of 1995
Before: Judicial Registrar Staindl
Place: Melbourne
Date: 19 May 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1292 of 1995
B E T W E E N
ELI JOHN PAUL
Applicant
A N D
OXENBURY PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Staindl 19 May 1995
THE COURT ORDERS THAT:
The Respondent Oxenbury Pty Ltd pay to the Applicant the sum of $3,203.85 by way of compensation.
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