Jennifer Mary Butler v Orchard Holdings Pty trading as Supa Valu - Marmion

[1995] IRCA 403

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - whether valid reason for termination - compensation

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

JENNIFER MARY BUTLER -V- ORCHARD HOLDINGS PTY LTD trading as SUPA VALU - MARMION

No.  WI 1407/95

Judicial Registrar:                  L Farrell
Place:  Adelaide
Date:  24 August 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

No. WI 1407 of 1995

B E T W E E N:

JENNIFER MARY BUTLER

Applicant

AND

ORCHARD HOLDINGS PTY LTD trading      as SUPA VALU - MARMION

Respondent

MINUTES OF ORDER

Judicial Registrar Farrell

Date:  18 August 1995

THE COURT ORDERS THAT:

The Respondent pay to the Applicant the sum of $2,000.00 within 21 days of today’s date.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY

No. WI 1407 of 1995

B E T W E E N:

JENNIFER MARY BUTLER

Applicant

AND

SUPA VALU - MARMION

Respondent

BEFORE:                 JUDICIAL REGISTRAR FARRELL

PLACE:  ADELAIDE

DATE:  18 AUGUST 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that her employment was terminated unlawfully.

The Applicant was employed as a Shop Assistant at the Supa Valu Marmion store.  She worked a regular weekly Saturday shift of five hours and a regular fortnightly Thursday shift of 4-5 hours.  She was paid $11.48 per hour for her Saturday work and $9.80 per hour for her Thursday work.  Her rate of pay was determined pursuant to the Shop and Warehouse (Wholesale and Retail Establishments) Award, an Award of the Western Australia Industrial Commission.  The Applicant’s evidence was that her rosters were set well in advance.  By agreement with her supervisor she would occasionally work extra days or change her rostered days.    She was paid a casual rate of pay however in my view, because she worked regular days and for a regular period of time on each day that she worked and her rosters were set well in advance, she was not in fact a casual employee.

Although no documentary evidence was put before me I heard oral evidence that in 1994 the owner of Supa Valu Marmion store experienced financial difficulties.  Foodland became involved in the business and accountants were appointed as receivers.  Ultimately the Respondent to these proceedings took over the store in January 1995.

I accept the evidence of the Applicant that she was give no notice that her employment was terminated by the previous owner of the store and there was no change to her employment at the time the Respondent took over the store.

She subsequently advised the Respondent that she would be turning 18 on 14 February 1995.When her pay did not increase following her birthday she again spoke to Mr Anderson.  Shortly after that she found that her name no longer appeared on the roster.  When she enquired as to why her name no longer appeared on the roster she was told that her position was redundant.

The respondent was represented by Mr Anderson a Director of the Company.  Evidence was given by Mr Anderson, Ms Lee Broome, frontend controller and Ms Vicki White, Grocery Manager.

The Respondent did not put in evidence before me the written contract by which he came to own the Supa Valu Store.  Nor did he produce any evidence to show that the Applicant was advised that her employment had come to an end prior to his company taking over the store.The Respondent did not call Miss Karen Ashton, who had apparently advised him on matters relating to the Applicant’s termination and Ms Bertolucci who had apparently spoken to the Applicant about her employment.

These matters were drawn to Mr Anderson’s attention during the hearing and he did not seek to rectify them.  His only explanation was that it would be inconvenient.   His evidence overall was unconvincing.Ongoing rosters at the store were put before me by consent however the authorship of the rosters is unclear.  They are clearly incomplete and prepared by different people.

On the evidence before me I am not satisfied that the Respondent had a valid reason for the termination of the Applicant’s employment.I find that the termination of the Applicant’s employment was unlawful.

The Applicant in her evidence stated that she did not seek reinstatement.   She was able to find some casual employment in July.  She is a full time student and she has sought employment that fits with that.  In my view compensation is the appropriate remedy.I award compensation to the Applicant in the sum of $2,000.00.

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

DATE OF HEARING:           18 August 1995
FOR THE APPLICANT:      Mr B Johnston
FOR THE RESPONDENT:   Mr K Anderson