Filipovic v G W Healey & Son

[1995] IRCA 57

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1470 of 1994

BETWEEN:

MIKI FILIPOVIC
Applicant

AND

G. W. HEALEY & SON
Respondent

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

9 February 1995  Judicial Registrar Murphy

This is an application under section 170DE of the Industrial Relations Act 1988 (“the Act”) wherein the applicant claims compensation from his employer Peerless Products Pty Limited arising out of the termination of his employment in August 1994.

The employer trades under the name G. W. Healey & Son.  At the commencement of the hearing the Court ordered that Peerless Products Pty Ltd be substituted as the name of the respondent.

The Background

At the commencement of these proceedings the respondent raised as a preliminary issue the provisions of Regulation 30B of the Industrial Relations Regulations, namely that the applicant was on a period of probation, and sought to have this matter determined as a threshold issue. Counsel for the applicant submitted that the bulk of the evidence would cover both this issue and the balance of the issues in the proceedings, and I ruled in her favour, and ruled that it not be separated as a procedural issue. I will return to my findings in relation to the issue of probation later.

The applicant is a tradesman who for some years worked for a company known as GJ Automotives and, in the period prior to June 1994, had dealings with Mr Andrew Healey in relation to a gas conversion on his motor car.  In the course of those dealings Mr Andrew Healey raised with him the question of a position at the respondent company.  That developed into a number of conversations between the parties about a potential position as factory manager, and a discussion between Mr Healey and the applicant wherein a proposal was made that the applicant be employed as factory manager.

The applicant gave evidence that in the course of this discussion he was concerned that not enough money was being offered and he declined.  A subsequent meeting was held and in the course of that meeting again the question of salary was discussed, but Mr Andrew Healey was unable to be determinative at that point because his father was overseas. Mr Andrew Healey gave evidence that in the course of that discussion he indicated that any employment with the respondent would be on the basis of a three month probationary period to be reviewed after one month.  The applicant denies that part of the conversation.

The applicant’s version is that after this conversation there was a subsequent conversation between Mr Andrew Healey, his father Mr Norman Healey and the applicant at the respondent’s premises at which details of the employment offer were again confirmed and a job description was tendered to the applicant.  He had some concerns about the job description, the proposed job, and also about changing his employment and wanted to discuss the matter with his wife.  He then proceeded to do that.  He was encouraged to do so by Mr Healey and his son.

Subsequently, a further meeting was held between the applicant and his wife and Mr Norman Healey and his wife (Mrs Carol Healey), and also Mr Andrew Healey.  By the time of that meeting the applicant had discussed with his wife the question of a change of his position to the respondent, and he and his wife had estimated what his previous earnings had been at GJ Automotives and what he was required to receive by way of a basic wage at the respondent.  There was a conflict in the evidence in relation to the presence of both the father and son at this meeting.  The applicant’s evidence was that Mr Andrew Healey left the meeting soon after it commenced and then proceeded to take a phone call, and that Mr Norman Healey did most of the talking at that meeting.

In the course of that meeting Mr Norman Healey handed to the applicant a piece of paper containing an offer of $580.00 per week and the applicant, after a brief conversation with his wife, agreed that he would accept a position with the respondent on a salary of $580.00 per week.  The applicant gave evidence that at no time in this conversation was the question of a probation period discussed.  The applicant’s evidence and that of his wife was that this decision to move to new employment was a major decision as far as he was concerned.  His wife was also concerned about it as he was the only bread winner and they had young children.  She gave evidence that had the question of a probation period been raised she would have been concerned and would not have pushed him to accept the position.

The third meeting between the parties was, on the version of the applicant, a meeting at which they got to know each other, and then arrangements were made for him to commence employment.  He indicated that he wished to give his former employer appropriate notice and then to have a short holiday. From there the conversation moved to more personal matters relating to family and activities.

The respondent’s evidence on the other hand is that on three occasions the question of probation was raised, the first being at a meeting between the applicant and Mr Andrew Healey, the second at a meeting between the applicant, Mr Andrew Healey and Mr Norman Healey, and the third at the meeting between the two couples and Mr Andrew Healey.

He commenced employment on 27 July 1994.  The applicant’s duties in the discussions between the parties prior to him commencing were that he was to take over from a factory manager who was to retire in approximately 18 months time.  The position was regarded as one of substantial importance to the respondent because the retiring factory manager had been there for some 30 years, and had a wealth of knowledge.  The proposal was that the applicant would spend some 18 months picking the brains of the retiring manager and then take over from him.

The respondent’s factory and plant consists of the selling of various types of industrial equipment including air compressors.  It was envisaged that the applicant would need to be exposed to the production processes of the respondent in the course of him learning the duties of the retiring factory manager.  When the applicant commenced work he was allocated to work in the air compressor section of the respondent’s factory.  He did that working under a team that was led by a Mr Jim Foley.  The respondent had recently received a shipment of air compressors from China that required modification and the applicant was set the task of assisting in these modifications along with Foley, and later another employee, Allan.

The applicant gave evidence that he was shown how to perform these duties, which included machining the heads of the compressors and replacing them, by Foley and then proceeded to perform them.  Subsequently problems developed in relation to some valves in the compressors and the applicant and Foley were required to modify the valves and some rivets in the compressors.  The applicant gave evidence that he was shown how to modify these valves by Foley and that he proceeded to do that.  He did admit however, that on two occasions he had failed to replace the valves the correct way.  Upon that being brought to his attention by Foley he then continued to install them the correct way.

In addition the valves would not seat properly, and this matter was brought to the attention of Foley by Mr Norman Healey.  The applicant and Allan were instructed to sand the valve seats to ensure that they seated properly.  The applicant proceeded to do that when he was instructed to do so.  There was some conflict in the evidence as to whether or not he had been told to do that earlier, and he had failed to comply with those instructions.  On this issue I accept the evidence of the applicant.

Some of these compressors had already been shipped to customers of the respondent and had failed when they arrived at those locations.  This caused concern to both Mr Norman Healey and Mr Andrew Healey. Mr Norman Healey raised the matter with Foley in a conversation on a Friday two or three weeks after the applicant commenced work.  In the course of that conversation one particular air compressor was tested and was found to have a gasket missing.  The applicant admitted that he had reassembled that compressor and failed to put the gasket in.  Mr Andrew Healey in the meantime had been to Sydney and found a number of compressors also had faults, including head studs not tightened and no gaskets.

He returned from Sydney and on the following Monday had a meeting with the applicant.  Before that meeting he had spoken to Foley who had indicated to him that he believed that the applicant had failed in his duties of modifying and reassembling the air compressors.

A conversation then occurred between the applicant and Mr Andrew Healey which is a crucial conversation in the sequence of events in this matter.  The applicant gave evidence that Mr Healey raised his alleged failures in relation to his performance of his duties and the applicant responded by saying, “well are you sacking me?” Healey then indicated, “yes”.  There was then a discussion about the appropriate period of notice.

Mr Healey’s version of this conversation is that the applicant, after he raised the question of his failure to perform, then said, “well do you want me to leave?” Healey then said, “well yes, what period of notice?”  The applicant then offered to leave in two weeks and Mr Healey said he could leave in two weeks or a month.

On the conflict between these two versions of events I accept the evidence of the applicant that Healey, in that conversation, required him to quit and it was agreed between the parties that he would leave on 7 September, two weeks later.  The applicant was upset after this conversation and he then proceeded back to his work.  When he returned to work Foley gave evidence that he told him that he had been fired.

The applicant, on the following day, 23 August, was concerned about what had happened and attended at the office of the respondent after work.  Mr Norman Healey and Mr Andrew Healey were present.  The applicant then proceeded to address his remarks, to the effect that he had not been given a fair go in his employment, directly to Mr Norman Healey.

Mr Andrew Healey responded on behalf of Mr Norman Healey who, on the uncontested evidence of the applicant, did not reply to anything that he said.  The applicant refused to listen to what Mr Andrew Healey had said to him and subsequently left.  Mr Andrew Healey claims that, in that conversation, he in effect offered the applicant his job back, but the applicant could not recall that being said.  I find it unlikely that Mr Andrew Healey did in fact offer him his job back in that conversation because Mr Norman Healey had given evidence that, at that stage, he had received information that the applicant had been working on private jobs in the course of his employment and he had lost trust in him.

In those circumstances, I accept the applicant’s version of the conversation of 23 August and find that there was no offer, in that conversation, that he could have his job back.

Subsequently, the applicant, at some stage, took legal advice and issued these proceedings.  They were served on the respondent some time prior to 1 September.  On that date, there was a further conversation with Mr Andrew Healey who indicated to him that he wished him to leave the premises immediately.  In the course of that conversation, Mr Andrew Healey said to him, “we have sacked you in your probation period”.

The applicant gave evidence that the first time the question of probation was raised, was in that conversation.  There was also a discussion between the parties in relation to legal advice.  The respondent gave evidence that the applicant said, “I have been instructed not to say anything on legal advice”.  The applicant said that Mr Andrew Healey said, “we are going to fight this, you better have a good lawyer”.  Notes of that conversation were taken by the company’s secretary, Carol.  Evidence was not led from Carol who participated in that meeting and I draw an inference that her evidence would not support the version of Mr Andrew Healey and I therefore accept the applicant’s version of that conversation.

Assessment Of The Witnesses

This case, particularly in relation to the issue of probation, is a case which, had the parties committed the issues to writing, would not be before the Court.  In Nicolson -v- Heaven & Earth Gallery Pty Limited, (1994) 126 ALR 233 at 241 Wilcox CJ made comments to the effect that although lawyers continue to tell commercial people to commit important contractual matters to writing, they continue to deal with matters by way of oral agreements, and that leaves the court with the difficult task of choosing between competing oral evidence on crucial matters.

In relation to the witnesses in this case, I found the applicant and his wife credible witnesses who gave their evidence squarely and in some detail.  They corroborated each other in relation to the version of what happened at the third meeting between the two couples and Mr Andrew Healey.  It is significant that their evidence in relation to the presence of Mr Andrew Healey and Mr Normal Healey was not challenged in the course of cross-examination.

Mrs Carol Healey gave evidence and whilst I found that she was attempting to recall the events as best she could, she was hesitant when she gave her evidence in relation to the issue of probation.  It had to be dragged out of her after a number of questions by the representative for the respondent.  Mr Normal Healey gave evidence relating to the conversation about probation, which was in the second conversation, which gave a version which was more elaborate than what had been put in evidence by Mr Andrew Healey.  The same applied in relation to Mrs Healey’s version of events.  She said:

“Andrew brought up probation, probation time and that the job will be reviewed and hopefully the position would be satisfactory for our customers and good working relationship between us as a family and our customers.”

Mr Andrew Healey’s version was slightly different because there was no reference to customers, and Mr Norman Healey’s version did not also make any reference to customers either.

The key evidence on which the respondents rely in relation to the issue of probation is that of Mr Andrew Healey.  I have some concerns with the evidence of Mr Andrew Healey.  A number of matters given in his evidence-in-chief and cross-examination were not put to the applicant.  These include what was precisely said in relation to the probation period.  I have indicated that there are different versions in relation to what Mrs Healey said and what Andrew Healey said.

Two other matters I regard as significant in relation to accepting Mr Andrew Healey’s evidence on this point.  The first of these is the failure of Mr Andrew Healey to give any explanation of the circumstances of the visit by the police to the applicant’s property after he had ceased employment.  Both the applicant and his wife gave evidence of this visit and the fact that the police took no further action in relation to it.  The second aspect of Mr Andrew Healey’s evidence was his evidence that he took advice from the Chamber of Manufacturers in about May 1994 as to the use of written letters of confirmation of employment.  He gave evidence that that advice was to the effect that those letters were of no use.

His evidence was that, prior to that date, the respondent in fact had confirmed the issue of probation for new employees in writing. This evidence I find surprising and contrary to what would be expected from a Chamber of Manufacturers in light of the amendments to the Act which came to effect in March 1994. That confirms that it seems highly unlikely, given the seriousness of the matter as far as the respondent was concerned, that if it sought to have a probationary period, it did not seek to put it in writing. It is significant that Mr Norman Healey gave evidence this morning that the respondent had employed a number of other people on a probation basis which was on the basis of an oral agreement. This evidence is inconsistent with that given by his son yesterday which was that, prior to May last year, all employment was confirmed by a letter.

When the inherent probabilities of the probation issue are looked at the version of events given by the applicant and his wife is more probable than not for these reasons.  Probation, as far as the applicant was concerned, was a new concept.  He gave evidence that he had never previously been on a probationary period in any prior employment.  He was giving up secure employment and it was a big decision for him to do that.  The vague nature of the probation arrangement was also something which, in the Court’s view, would have been of concern to the applicant.

First it was for three months.  There was no contest that it was to be for 18 months that the applicant would have the opportunity to learn the duties from the retiring incumbent.  Secondly, the idea of a review of the probation after one month, in my view, would have caused uncertainty in the mind of the applicant.  On the respondent’s version, no details of the review were given to him.  The applicant had never been the subject of a probation period.  Given that, it is likely that he would ask what the review was, and seek some details of it so that he knew what he had to do to meet the criteria.  This applies also when the job description which had been the subject of discussion between them was very wide and included a number of matters on which he had some reservation, including the issue of computers, quality management, and supervision of employees.

Further, had probation been mentioned, in my view it is likely that he would have discussed this matter with his wife.  That it is something which on the evidence would have weighed in her mind had it been mentioned in the conversation between the two couples and Mr Andrew Healey.  Further, as I have said, if the position in relation to the respondent was so important and it sought to rely on such a provision it is the sort of thing that prudent business people would put in writing rather than be left to the vagaries of oral testimony.

To reject the applicant’s version in relation to probation requires the Court to reject a version from a credible witness whose testimony was not shaken in cross-examination.  It requires rejection of a version which is inherently credible and it requires acceptance of the evidence primarily of Mr Andrew Healey whose evidence had the incredible features that I have referred to earlier and whose demeanour in the witness box gave me cause to doubt his evidence on this important point.  For these reasons I reject the submissions of the respondent that this employment was subject to a probation period under Regulation 30B.  Following this finding it is unnecessary for me to consider the alternative submission by the applicant that the period was unreasonable in the circumstances.

Was There A Breach Of Section 170DC?

Having found that the employment was not the subject of a probation period, it is necessary for me to consider whether or not there has been a breach of section 170DC of the Act as alleged by the applicant. I have already found that the employment was terminated by the respondent on 22 August and that the employment was to finish on 7 September. This notice period was then truncated by the decision of Mr Andrew Healey on 1 September to pay out the applicant and require him to leave the premises immediately.

Section 170DC, it has been held in Nicolson ‑v‑ Heaven & Earth Gallery (above), imports into labour law a concept well understood in the community, “it represents part of what Australians call ‘a fair go’”.

“The relevant principle is that a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.”  (at 243)

Now in this case the question of the applicant’s work performance was not addressed to him in any formal way by Mr Norman Healey at all, as he conceded in his evidence.  There was, on Mr Norman Healey’s version, discussions between them, but it never reached any formal level.  Mr Andrew Healey only had one conversation in relation to the applicant’s performance.  That took place on 22 August and it was in that conversation that the applicant’s employment ended.

The question of whether 170DC of the Act has been complied with requires consideration as to what were the precise allegations made against the applicant. The nature of the production processes of the respondent was such it required a more elaborate investigation by the respondent than was undertaken by Mr Andrew Healey to properly put to the applicant the issues relating to his conduct or performance than occurred. This is because on the evidence of Mr Norman Healey he conceded that he could not say in relation to the compressor that he tested whether or not the applicant had performed the work on the valves or whether Alan had in fact performed the work.

Similarly, the applicant gave uncontested evidence that after the original problems in relation to the compressors he instituted a process of testing them by turning them on to their specified output.  This meant that when they left that section of the employer’s plant they had been tested and if that test had taken place then any fault such as failure to apply a gasket, incorrect tightening of the head bolts and incorrect placement of the valves would be identified at that point.

It is clear that Mr Andrew Healey did not take any action to ascertain whether in fact that testing had been carried out properly and in particular whether at the end of the production line the air compressors were properly tested also.  The result was that Mr Andrew Healey was not in a position to squarely put to the applicant that the defects in relation to the compressors were solely attributable to his actions.  Foley in his evidence conceded that mistakes would occur.

In considering this matter I have also had regard to the fact that it is clear from the evidence of Foley, that by that time in the applicant’s employment, changes had taken place so that Mr Andrew Healey was putting to the applicant matters in relation to his work performance which related to a period a week prior to 22 August and when other changes had been implemented by the respondent.

I therefore find that the actions of the respondent through Mr Andrew Healey of simply raising with the applicant the allegations of a general nature in the meeting of 22 August without a more detailed investigation are such that the respondent has failed to comply with section 170DC of the Act.

Was There A Breach Of Section 170DE(1)?

The applicant also argued that the respondent was in breach of 170DE(1) of the Act in that the respondent had failed to discharge its onus of proof that it had a valid reason to terminate the employment of the applicant. The respondent’s argument on this point was that the performance of the applicant in relation to his duties working in the air compressor area was such that given his trade qualifications and experience it had a valid reason to terminate his employment.

I am not satisfied that the respondent had a valid reason to terminate his employment.  Given the nature of the respondent’s production processes, the respondent was not in a position, as I have already indicated, to specifically say whether any of the particular breaches of its production standards were directly attributable to the applicant.  There was a contest on the evidence as to whether or not Foley and the applicant had commenced marking some of the heads of the air compressors in a particular way which would identify which of them they had modified.

On this contest between the evidence I accept the evidence of the applicant that in fact they were not marking them differently. I also accept the evidence of the respondent that the applicant had admitted to at least failing to install one gasket on one particular air compressor and also, as he admitted himself in evidence, failing to install valves correctly.  But even if the respondent’s evidence in relation to the applicant’s work performance is accepted, I do not accept that this was a valid reason to terminate his employment.  He had only worked for them for a period of three weeks.  He had not worked in this type of industrial environment, which was akin to an assembly line arrangement, and Foley indicated that the work could be tedious.

I further do not accept that the evidence justifies finding that the reason was a valid reason because the applicant had never been given any proper warnings in relation to his work performance. Whilst Foley and Mr Norman Healey had brought matters to the applicant’s attention, Foley’s evidence was that he brought it to his attention by way of exhorting him to be more careful. Mr Norman Healey’s evidence was that he brought these matters to his attention in a similar fashion. This is not sufficient to be accepted as a proper warning for the purposes of both section 170DC, and, indeed, for section 170DE. This is made clear in the decision of Nicolson ‑v‑ Heaven & Earth Gallery (above) where Wilcox CJ at 243 indicates that informal exhortations to improve are insufficient.  It is clear on the evidence that that is, at its highest, what occurred as between the respondent and the applicant in this matter.

Was There A Breach Of Section 170DE(2)

Lest there be any doubt in relation to my finding as to whether there was a valid reason under section 170DE(1), I indicate that, in any event, the termination of the applicant’s employment was harsh and unjust and unreasonable under section 170DE(2). It is unreasonable to terminate the applicant’s employment in these circumstances where there has not been a proper system of a final warning, particularly given the provisions of Clause 8 of Schedule 11 of the Act, which provides:

“The employment of a worker should not be terminated for unsatisfactory performance, unless the employer has given the worker appropriate instructions and written warning and the worker continues to perform his duties unsatisfactorily after a reasonable period of time for improvement has elapsed.”

Now, whilst those provisions are not imported directly into the Act, they are the sort of provisions which a reasonable employer should adopt in circumstances where an employee has been terminated for work performance and where the level of his failure in his work performance does not constitute a fundamental breach of his duties under the employment contract. I also would find that the termination was harsh, given his short period of employment, and the fact that it was always envisaged that it would be 18 months before he would be able to completely undertake the duties of the retiring factory manager.

Remedy

It has been recently confirmed in the case Liddell -v- Cheryl Lembke t/as Cheryls Unisex Salon (Industrial Relations Court of Australia, unreported, Wilcox C.J., Keely and Gray JJ., 3 November 1994) that reinstatement is the primary remedy under the Industrial Relations Act, unless it is impracticable. In this case it is clear that it would be impracticable to reinstate the employment relationship, given the matters which have arisen between the parties. In particular the reporting of the applicant to the police, and the evidence of Mr Normal Healey in relation to his view of the lack of trust between the respondent and the applicant. The applicant does not seek reinstatement, and that is a factor which must be considered in relation to whether or not reinstatement is practicable.

Compensation

Having found that reinstatement is impracticable, it is necessary to turn to the issue of compensation.  In Nicolson (above) at 244, the Chief Justice noted that compensation is to be distinguished from loss of remuneration.  In this case the applicant was paid until 7 September and then performed some casual jobs until he obtained a probationary employment working as a coach driver for Greyhound Pioneer.  He was thus unemployed for a period of some 12 weeks, and lost a total sum of $6,960.00 in wages.  His earnings over the period that he was unemployed came to some $400.00, making his loss of wages $6,560.00.

The applicant has obtained probationary employment with Greyhound Pioneer and has been earning substantial amounts of money there, due to his working shift work and public holidays.  The evidence reveals that his base rate of pay is, however, $512.00 per week, which is $68.00 less per week than the $580.00 he was being paid at the respondent.

In considering compensation in Nicolson (above at 246) the Chief Justice indicates that the Court should take into account matters which might have occurred but for the unlawful termination.  I am therefore required to take into account what might have occurred had the unlawful termination not occurred on 22 August.  In my opinion, there is some risk that the applicant’s employment would have terminated in a lawful fashion, had it not terminated, as I have found, unlawfully on 22 August.  This is because it may well have been that the parties mutually took the view that the applicant was not suited to this position, and therefore the employment should not continue.

I have also noted that the applicant is just completing the second month of a period of probation with Greyhound Pioneer, and it appears from his evidence that is likely that he will be confirmed in his position as a coach driver.  That position is, however, on his evidence, inferior to the one that he had with the respondent, because it requires significant amounts of interstate travel and long hours.

Having regard to the fact that he has almost reached a point where he is earning as much as he was earning with the respondent, but that his basic wage with the new employer is some $68.00 per week less, and the likelihood that he will be confirmed in his appointment with Greyhound Pioneer at the end of this month, I have calculated that he has lost the sum of $848.00, being 12 weeks at $68.00 per week from 1 December to 1 March 1995.  I am proposing to make an award of compensation of $7,440.00, being $6,560.00 loss of wages and $884.00, which is the difference between what he would have earned at the respondent and his base rate at the Greyhound Pioneer employment.  I have not made any allowance for the moneys that he was paid by the Department of Social Security while he was unemployed, as he may be required to reinstate those moneys to the Department of Social Security.

Order Of The Court

1. That the name Peerless Products Pty Ltd be substituted as the name of the respondent in the proceedings.

1. A declaration that the respondent has breached Sections 170DC and 170DE of the Act.

1. The respondent within 21 days of this date pay to the applicant the sum of $7,444.00 in compensation.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment of Judicial Registrar Murphy as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:

Dated:  

Solicitors for the Applicant: Counsel for the Applicant:	Arnold Dallas & McPherson Ms M. Young
Solicitor for the Respondent: Counsel for the Respondent:	Australian Chamber of Manufactures Mr C. Rutledge
Dates of hearing:	8 & 9 February 1995
Date of Judgment:	9 February 1995

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - whether probationary period - conflicting oral testimony - adequacy of performance - whether opportunity to respond to allegations - compensation - matters to be considered.

Industrial Relations Act 1988, ss.170DC, and 170DE.

Nicolson ‑v‑ Heaven & Earth Gallery Pty Limited (1994) 126 ALR 233

Liddell -v- Cheryl Lembke t/as Cheryls Unisex Salon (Industrial Relations Court of Australia, unreported, Wilcox C.J., Keely and Gray JJ., 3 November 1994)

MIKI FILIPOVIC -v- G. W. HEALEY & SON

NO. VI 1470 of 1994

Before:     MURPHY JR

Place:      MELBOURNE

Date:       9 FEBRUARY 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1470 of 1994

BETWEEN:

MIKI FILIPOVIC
Applicant

AND

G. W. HEALEY & SON
Respondent

MINUTES OF ORDER

9 February 1995  Judicial Registrar Murphy

ORDER OF THE COURT:

1. That the name Peerless Products Pty Ltd be substituted as the name of the respondent in the proceedings.

1. A declaration that the respondent has breached Sections 170DC and 170DE of the Act.

1. The respondent within 21 days of this date pay to the applicant the sum of $7,444.00 in compensation.

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