In the matter of Section 218 of the Industrial Relations Act 1988 and in the matter of an application by C.R.J O'Neill for an inquiry into elections for offices in the Australian Education Union W.A. Branch

[1994] IRCA 8

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

No W1 389 of 1994

B E T W E E N:

DAVID WAYNE NORMAN

Applicant

AND

ROD RETZLAFF OF ROD’S AUTO   ELECTRICAL

Respondent

REASONS FOR JUDGMENT

BEFORE      :          Judicial Registrar Farrell

DATE            :          18th January 1995

PLACE         :          Perth

This Application is made pursuant to S 170EA of the Industrial Relations Act 1988 in respect of the Applicant’s employment with the Respondent. The Applicant sought an Order declaring that the termination of his employment by the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988 and he sought compensation. The Applicant did not claim reinstatement.

The Applicant was employed from the 27th June 1994 to the 2nd September 1994 as an Automotive Electrician.  He was given one weeks notice prior to his termination and his weekly salary was approximately $650.00.

Prior to his employment the Applicant had been residing in Port Lincoln, South Australia.  He responded to an advertisement at the local CES Office.  The CES arranged some payment to him so that he could travel to Busselton in Southern Western Australia so that the Respondent could have the opportunity to assess his suitability for the job.  The Applicant worked for half a day on the 17th June 1994 and subsequently returned to Port Lincoln to make arrangements to relocate to Busselton.  The CES arranged payment for the cost of the Applicant’s removal to Busselton.  The Applicant asserted that his relocation expenses were more than he received from the CES, however no evidence of any other expenses was put before me.

There was a number of matters in dispute between the parties.  As to credibility, I found that the Respondent was sometimes evasive and his assertion that he made no arrangement as to a commencement date with the Applicant unbelievable.  The Applicant gave his evidence in a credible manner and I have no reason to doubt his version of events.

The Respondent did not want to accept any responsibility for having employed the Applicant and he blamed the CES for having sent the Applicant to him.  However he had arranged the test of the Applicant’s work.  He stated in evidence that the two jobs that the Applicant undertook for him on the 17th June 1994 were poorly done, but, he did not know this until the following week.

In my view the Respondent should have observed the Applicant work on the 17th June 1994 or he should have allowed time to assess the results of the Applicant’s work before engaging him if that was what was necessary to assess his ability to do the job required.  On his own evidence the Respondent was a highly competent auto electrician and ought to have been able to assess the Applicant’s performance on the 17th June 1994 if in fact that was the purpose of getting the applicant to work in his workshop on that day.

The Respondent was highly critical of the Applicant’s work following the commencement of his employment.  The Applicant in his evidence was able to answer some but not all of the criticisms. 

I find that on the evidence before me the standard of the Applicant’s work was not acceptable to the requirement of the Respondent’s business needs.

The Respondent claimed to have counselled and warned the Applicant in relation to his performance.  No written warnings were provided to the Applicant.  The Applicant denied that any counselling or warning had take place.  I accept the Applicant’s evidence in this regard.

In my view the Respondent should have ensured that his criticisms of the Applicant’s performance were communicated to the Applicant as soon as practicable after the Respondent became aware of any failings in the Applicant’s performance.  Additionally the Respondent should have ensured that the Applicant was in no doubt that if he did not improve his performance then his employment would be terminated.  The Respondent should have specifically advised the Applicant as to what aspects of his performance should be improved and given him  a reasonable length of time (and advised him of the length of time) in which to improve those aspects of his performance that were wanting and to counsel the Applicant if in his opinion improvements were not forthcoming.

For these reasons it is my view that the termination of the Applicant’s employment  contravened subdivision B of Division 3 of the Act.  However in assessing compensation I have taken into account the fact that the Applicant’s employment was unlikely to have continued beyond the period of time it would have taken for the Respondent to take the necessary steps to afford the Applicant procedural fairness.  In my view that would have been a further three weeks.  I have assessed compensation in the amount of  $1,950.00.

I certify that this and the preceding 3  pages are a true copy of my Reasons for   Judgment.

Signed:
  Dated:

Appearances for the Applicant     :          Applicant in person

Counsel for the Respondent        :          Mr Johnstone

Hearing date  :          16th December 1995

CATCHWORDS

INDUSTRIAL LAW - Termination of Employment - Complaint of unlawful termination of employment in contravention of Division 3 of Part VIA of the Industrial Relations Act - procedural fairness - assessment of compensation.

INDUSTRIAL RELATIONS ACT 1988 ss 170EA, 170DE, 170EE

DAVID WAYNE NORMAN -v- ROD RETZLAFF OF ROD’S AUTO ELECTRICAL

No. W1 389 of 1994

BEFORE      :         Judicial Registrar Farrell

PLACE          :         Perth

DATE            :         18th January 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

No W1 389 of 1994

B E T W E E N:

DAVID WAYNE NORMAN

Applicant

AND

ROD RETZLAFF OF ROD’S AUTO   ELECTRICAL

Respondent

MINUTES OF ORDER

BEFORE      :          Judicial Registrar Farrell

PLACE          :          Perth

DATE            :          16th December 1995

THE COURT ORDERS THAT:

1. The termination of the Applicant’s employment by the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act.

1. The Respondent pay to the Applicant compensation in the sum of $1,950.00 within 21 days of this date.

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