Grant & Shop, Distributive & Allied Employees Association v Halici, Moviehouse Video Library
[1996] IRCA 254
•7 Jun 1996
DECISION NO: 254/96
C A T C H W O R D S
INDUSTRIAL LAW - UNLAWFUL TERMINATION - termination at the initiative of the respondent - VALID REASON - undefended therefore the burden of proof was not discharged - prohibited reason for termination - temporary absence due to illness - failure to defend and therefore failure to discharge burden of proof
Industrial Relations Act 1988 ss.170DA(2), 170DB, 170DC, 170DE(1), 170DF(1)(a), 170EE(5)
JASMINE LEE GRANT & SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES’ ASSOCIATION - v - TAHSIN HALICI - MOVIEHOUSE VIDEO LIBRARY
No. VI 5412 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 7 June 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5412 of 1995
B E T W E E N :
JASMINE LEE GRANT &
SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES’ ASSOCIATION
Applicants
AND
TAHSIN HALICI
MOVIEHOUSE VIDEO LIBRARY
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 7 June 1996
THE COURT ORDERS THAT WITHIN 21 DAYS OF THE DATE OF MAKING THESE ORDERS:
The respondent pay to the applicant the sum of $320.30 by way of damages pursuant to section 170EE(5) of the Industrial Relations Act 1988.
The respondent pay to the applicant the sum of $8327.80 gross by way of compensation.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 5412 of 1995
B E T W E E N :
JASMINE LEE GRANT &
SHOP, DISTRIBUTIVE & ALLIED EMPLOYEES’ ASSOCIATION
Applicants
AND
TAHSIN HALICI
MOVIEHOUSE VIDEO LIBRARY
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 7 June 1996
REASONS FOR JUDGMENT
(Delivered ex tempore - revised from transcript)
By an application made on 23 October 1995, the applicant seeks compensation alleging the unlawful termination of her employment as a shop assistant employed by the respondent between 22 August 1995 and 14 September 1995. The Shop, Distributive and Allied Employees’ Association, the union, is a party to the proceeding, and at hearing represented both the union and the applicant. The respondent did not appear at hearing.
The appearance filed with the Court by the respondent on 26 October 1995 named a solicitor as the respondent's representative. The Court file shows that there was no appearance for the respondent at the directions hearing on 12 March 1996, on which date the proceeding was fixed for hearing. However, the Court file further indicates that the solicitor named in the respondent's appearance was duly notified of the hearing date. Mary Therese Lambert (Lambert), the union's research officer, gave evidence that after receiving the respondent's appearance, contact was made with the named solicitor who informed the union that although he had received inquiries from the respondent, he was not instructed in the matter.
Subsequent to this the union dealt directly with the respondent, Mr Tahsin Halici (Halici), who attended the conciliation conference, which was adjourned at the respondent's request from 22 November 1995 to 2 January 1996. There have been numerous contacts between Halici and the union since the conciliation conference, and more particularly on 5 June 1996, Lambert told the Court that she rang the respondent's shop and left an urgent message with a person named John to the effect that Halici should ring the union because the matter was proceeding to hearing within a couple of days.
She also told the Court that prior to her contact on 5 June 1996 she believed another union officer had left un-returned messages for Halici at the shop. Bearing in mind the above mentioned efforts, I am satisfied that the respondent has been properly notified of the hearing date.
THE FACTS
The 20 year old applicant told the Court that after completing year 12 of her schooling, she worked for some one and a half years as a shop assistant in the city before relocating her residence to Templestowe and finding employment with the respondent, again as a shop assistant.
The applicant adopted as true and correct the contents of an affidavit sworn by her on 7 June 1996 (see Exhibit A1). Without reiterating the contents of the affidavit in full, I note that the applicant was originally engaged on the basis that she would work a 35 hour week between Monday and Friday, 10.00am to 5.00pm. Her evidence, however, shows that these hours increased to more than 38 hours per week because Halici was an unreliable boss; failing on a number of occasions to attend the shop at 5.00 pm to take over from the applicant who worked there by herself.
She gave evidence that on occasions she was left to close the shop at 10.00pm or did not get away until much later than her 5.00pm finishing time because of Halici's failure to turn up on time. I am satisfied that her rate of pay should be treated as being that applicable to a 38-hour week; namely $320.30 (see Exhibit A2).
One of the applicant's duties was to open the shop and for this purpose she held keys to the shop. On the evening of 11 September 1995 the applicant was unwell. Her employer was informed of this by telephone at 8.00am on Tuesday, 12 September 1995. On the same day the applicant obtained a medical certificate certifying her as being medically unfit to attend for normal duties between 12 September and Friday, 15 September 1995.
The abovementioned information was conveyed to Halici and the applicant remained off work on 13 September 1995. On 14 September 1995 she made numerous attempts to telephone Halici to confirm that she would not be attending work that day because she was still unwell. The affidavit deposes to persistent attempts on her behalf to contact Halici to no avail. Even though she was not required to do this, the applicant arranged for her mother to drive her to the shop to open it by 10.15 am, where she remained for some hours, still trying to contact Halici and cope with her continuing illness, which had been diagnosed as gastroenteritis.
By 2.30 pm on the advice of her union, the applicant went home sick; closing down the shop beforehand. Between 4.00pm and 4.30pm on the same day, Halici telephoned the applicant alleging that she had breached security by having the shop keys. Halici explained this to the applicant on the basis that he alleged that she was in breach of security because she held the keys to the shop when she was not employed there. The applicant asked if she was fired and received an affirmative response.
In the course of the lastmentioned conversation, Halici also told the applicant that she had no business being ill when she was supposed to be at work. This was despite her explanation of her illness and the medical certificate provided. He asked her to arrange to return the keys, and thereafter there were no further direct discussions between them.
The applicant received her entitlements to the date of termination, but no notice in lieu of one week's compensation as is provided for in section 170DB of the Industrial Relations Act 1988.
On the evidence, I am satisfied that the applicant's employment was terminated at the initiative of the respondent. The respondent's failure to defend the proceeding and thereby its failure to discharge its burden of proving that there was a valid reason for termination leads to a finding that there has been a contravention of section 170DE(1) of the Act.
The evidence also supports a conclusion that the respondent failed to give the applicant a proper opportunity to defend herself against the allegations made by Halici on 14 September 1995, giving rise to a contravention of section 170DC of the Act.
It was also argued by the applicants that there was contravention of section 170DF(1)(a) of the Act, inasmuch as one of the reasons for terminating the applicant's employment was a prohibited reason; namely her temporary absence from work because of illness. Section 170DA(2) of the Act requires the respondent to prove a negative, that is to say that it was not motivated by a prohibited reason in terminating the applicant's employment.
Again the failure to defend the proceeding places the respondent in a position where it has also failed to discharge the burden of proof it carries where the application made to the Court alleges contravention of section 170DF(1)(a) of the Act.
Evidence was also given of settlements entered into with Halici following the conciliation conference. Indeed, terms of settlement were signed but not honoured by the respondent (see Exhibit A5). The Court was told that the applicants did not rely on the terms of settlement, having accepted the respondent's breach of the agreement to settle. Therefore the matter proceeded on its merits.
REMEDIES
The applicant opposed any order for reinstatement primarily because in recent times she has shifted her home to Lake's Entrance. She also pointed out to the Court that, as she was the only employee in the shop, it could lead to an intolerable situation working with Halici. My finding is that in all the circumstances reinstatement is impracticable.
On the question of compensation, the applicant sought the maximum payment of 26 weeks; amounting to $8327.80 gross. The applicant told the Court that she has remained unemployed since the termination, having made numerous unsuccessful efforts to find employment both through the Commonwealth Employment Service and newspaper advertisements.
The applicant gave birth to a daughter on 28 January 1996. She told the Court that that event precluded her from seeking and obtaining employment for a period of some two weeks after the birth. In assessing compensation the Court does so by determining the amount of the compensation and then by applying the six months' ceiling to that amount. The applicant has remained unemployed for a period in excess of six months, and there are not any guarantees that she will find employment as a shop assistant in the short-term, despite her continuing efforts to do so.
Because of these matters I am able to say that her entitlement to compensation exceeds the six months' ceiling, and by applying that ceiling as I am bound to do so, the applicant's compensation amounts to a sum of $8327.80 gross. In addition to this sum she is entitled to one week's pay in lieu of notice, amounting to $320.30 gross.
MINUTES OF ORDERS
THE COURT ORDERS THAT WITHIN 21 DAYS OF THE DATE OF MAKING THESE ORDERS:
The respondent pay to the applicant the sum of $320.30 by way of damages pursuant to section 170EE(5) of the Industrial Relations Act 1988.
The respondent pay to the applicant the sum of $8327.80 gross by way of compensation.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 14 June 1996
Appearing for the Applicants: Ms Mary Lambert of the Shop, Distributive
& Allied Employees’ Association
No appearance for the Respondent.
Date of hearing: 7 June 1996
Date of judgment: 7 June 1996
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