Hayden v Stuart Hocking T/A Weston Properties

[1996] IRCA 136

DECISION NO:  136/96

C A T C H W O R D S

INDUSTRIAL LAW - UNLAWFUL TERMINATION - whether termination for VALID REASON OF CONDUCT OR PERFORMANCE - whether PROCEDURAL FAIRNESS - COMPENSATION.

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

TIMOTHY JAMES HAYDEN -V- STUART HOCKING T/A WESTON PROPERTIES

No. SA95/1501

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  19 MARCH 1996

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA REGISTRY  )

No. SA95/1501

B E T W E E N:

TIMOTHY JAMES HAYDEN

Applicant

AND

STUART HOCKING  T/A  WESTON   PROPERTIES

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  19 MARCH 1996

THE COURT ORDERS THAT:

The Respondent pay to the Applicant the sum of $16,178 within 21 days.

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 REGISTRY  )

No. SA95/1501

B E T W E E N:

TIMOTHY JAMES HAYDEN

Applicant

AND

STUART HOCKING T/A WESTON PROPERTIES  

Respondent

BEFORE:                 JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:   19 MARCH 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 his employment was terminated unlawfully. He claims compensation. He does not seek reinstatement.

Both   the Applicant and Respondent were real estate agents.  They began a franchise business together in about June 1994 in an Adelaide Hills suburb.  Approximately 1 month later the Applicant requested that the Respondent take over his part of the business.  The Respondent agreed.  The Applicant was then employed by the Respondent on a commission only basis until his employment was terminated by the Respondent on 19 September 1995.

The evidence given by the Applicant and the Respondent was starkly different. The Applicant gave evidence that he received no written warning and was given no verbal warnings apart from 1 or 2 brief and inconsequential conversations.  The Respondent gave evidence that the Applicant was given 3 warnings in March 1995,  May 1995 and July 1995 as well as constant verbal warnings about a number of different matters.

The Applicant gave evidence that on 18 September 1995 he was requested by telephone to attend a meeting at 8.30 am the following day.  He was not told the reason for the meeting.

The meeting commenced with the Respondent stating:  “There is no longer a job for you because I am  sick of handling your stuff ups.”  He told the Applicant to get a real job and come back in 6 - 12 months.”   Shortly after which the Applicant cleared his desk and left. The Respondent’s version of the events of that meeting was that more detail was provided regarding the reason than that given by the Applicant  in his evidence.

Interestingly, the Respondent’s counsel’s opening of his case, (as is the practice before me, before any evidence was given) closely followed the version of events later given by the Applicant in his evidence.

The Respondent gave evidence of a number of matters that led to the Applicants termination.
  -  The mishandling of a particular file.
  -  His poor documentation.
  -  His lack of hours in the office.
  -  His sexual behaviour and remarks to other staff.
  -  His lack of effort.
  -  The necessity for the Respondent to appease the Applicant’s clients.
  -  His dishonesty with clients.
  -  His failure to remove signs from premises.

Much of the Respondent’s evidence was couched in broad terms.  The manner of his giving evidence suggested gross exaggeration of often trivial events.  I do not detail that evidence here but it led me to suspect the truthfulness of his evidence, particularly with regard to the 3 written warnings which he claimed were given to the Applicant.

The Respondent’s daughter , Mrs Ferluga, who worked in a clerical capacity for the Respondent gave evidence that the Applicant was difficult to contact, that he made very offensive sexual remarks to her the day before the termination of his employment and that the Applicant had told her that the Respondent was having an affair with Mrs  Schlesiager, another Real Estate Agent.  Mrs. Ferluga gave emphatic and straight forward evidence that the last two matters were not raised by her with her father at all before the termination of the Applicant’s employment.  This evidence contradicted the Respondent’s case.

For these reasons I have preferred the Applicant’s evidence to that of the Respondent and I am satisfied on the evidence before me that the Respondent had no valid reason for the termination of the Applicant’s employment connected with the conduct or performance of the Applicant.

Further I am not satisfied the Respondent has met the requirement of  section 170  DC  to provide
the Applicant with the opportunity to respond.  Counsel for the Respondent argued that no formality is required in respect of the Respondent’s obligations pursuant to section  170 DC.
Whilst I accept that no particular formality is required , at the very least the Respondent must make some invitation to the Applicant by words, or even perhaps by gesture, to explain his side of things.  The Respondent then must at the very least listen and consider those matters raised by an Applicant before proceeding to dismiss him.

In this case even on the Respondent’s own evidence no aspect of his obligations pursuant to section 170 DC were met.

I therefore find that the termination of the Applicant’s employment was unlawful and in breach of Division VI of the Industrial Relations Act.

REMEDY

The parties in this matter agreed that the maximum compensation that I could award pursuant to section 170 EE of the Industrial Relations Act was $16,178.50.

The Applicant gave evidence that he worked as a Real Estate Agent until late 1995.  He gave evidence that his losses from that business exceeded his earnings and that he ceased in that business because of harassment of him by the Respondent.  He gave evidence that he has more recently been engaged as a Sales Consultant for a company called Aussie Glass but that all of the wages  cheques and bonus cheques he has received have since bounced and it is doubtful that the company will survive another month.

The Respondent presented  no cogent argument to suggest that a limit ought to be placed on the period of time I should have regard to in assessing compensation.  There was no evidence or argument that the Applicant’s  employment would have brought to an end lawfully by the Respondent  and no exploration of the possibility that he would have resigned from the Respondent’s employment.  There matters were not addressed by the Respondent’s submissions with  respect to Remedy rather the Respondent’s counsel suggested that the Applicant ought not be cosseted.

In my view there is no cogent reason why the Applicant should not be entitled to the maximum compensation pursuant to the provisions of the Industrial Relations Act.

I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.

DATE OF HEARING            :   13 AND 18 MARCH 1996

FOR THE APPLICANT         :    MR SOULIO

FOR THE RESPONDENT     :    MR RANDLE