Johansen v Firefly Coaches Pty Ltd - [1997] IRCA 149

DECISION NO:149/97

CATCHWORDS

INDUSTRIAL LAW - alleged UNLAWFUL TERMINATION - TERMINATION OF EMPLOYMENT - VALID REASON - ONUS OF PROOF - CONDUCT AND PERFORMANCE - series of performance issues leading to termination - lack of OPPORTUNITY TO RESPOND - REMEDY - COMPENSATION

Workplace Relations Act 1996 (Cwth) ss170DC, 170DE, 170EDA, 170EE.

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371;
Wadey v Y.W.C.A. Canberra (unreported, IRCA, Moore J, 12 November 1996);
Perrin v Des Taylor Pty Ltd (1995) 50 AIR 254;
Reader v Wyndham Lodge Nursing Home Inc. (unreported, IRCA, Moore J, 26 March 1997);
Walton v Mermaid Dry Cleaners Pty Ltd (unreported, IRCA, Moore J, 24 October 1996);
Kenefick v Australian Submarine Corporation Pty Ltd (No. 3) (IRCA, Wilcox CJ, 26 July 1996, unreported);
Davis v Portseal Pty Ltd (unreported, IRCA, Moore J, 26 November 1996, Full Court, 10 April 1997);
R J Gilbertson (Qld) Pty Ltd v Lloyd (unreported, IRCA, Full Court, 29 November 1996);
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199.
Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1995) 63 IR 1;
Burazin v The Blacktown City Guardian Pty Ltd (1996) 142 ALR 144.

JOHANSEN v FIREFLY COACHES PTY LTD
VI95/6204

Before:  MURPHY JR
Place:  MELBOURNE
Date:  2 MAY 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI95/6204

BETWEEN:

SHAREE ASHLEY JOHANSEN
Applicant

AND

FIREFLY COACHES PTY LTD
Respondent

BEFORE:     MURPHY JR
PLACE:       MELBOURNE
DATE:          2 MAY 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The respondent pay to the applicant the sum of $3,000.00.

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI95/6204

BETWEEN:

SHAREE ASHLEY JOHANSEN
Applicant

AND

FIREFLY COACHES PTY LTD
Respondent

BEFORE:     MURPHY JR
PLACE:       MELBOURNE
DATE:          2 MAY 1997

REASONS FOR DECISION
Delivered ex tempore

The applicant seeks a remedy under s170EA of the Workplace Relations Act (Cwth) (“the Act”). She alleges that her employment as a reservations clerk at the respondent's Spencer Street Coach Centre was unlawfully terminated by the respondent on 5 December 1995.

Breach of s170DC admitted.
The respondent, after two days of evidence, conceded that the circumstances of the termination of the applicant's employment contravened s170DC of the Act. The respondent maintained, however, that it had a valid reason to terminate the applicant's employment. It further argued that because it had made out a valid reason for termination the consequences were that the applicant had suffered a minimal loss as a result of the respondent's admitted breach of s170DC of the Act.

The course of evidence
The course of evidence in these proceedings illustrates two things. The first is the difficulty a court often faces in controlling the scope of evidence where the originating process of the court is a plain English form, and where the matters proceed on oral evidence alone, without any pleadings or witness…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johansen v Firefly Coaches Pty Ltd

Details

AGLC: Johansen v Firefly Coaches Pty Ltd [1997] IRCA 149
Case: [1997] IRCA 149
Decision Date: 2 May 1997

CaseChat Overview and Summary

Sharee Ashley Johansen brought an action against Firefly Coaches Pty Ltd seeking a remedy under section 170EA of the Workplace Relations Act (Cwth) for her unlawful termination of employment as a reservations clerk at the respondent's Spencer Street Coach Centre. The respondent admitted that it breached section 170DC of the Act by not giving Johansen an opportunity to respond to the allegations against her before terminating her employment. However, the respondent argued that it had a valid reason to terminate Johansen's employment and that she suffered minimal loss as a result of the breach. The court had to decide whether the respondent had discharged its onus of proof that it had a valid reason to terminate Johansen's employment and whether the failure to accord Johansen procedural fairness meant that the respondent had not discharged its onus of proof.

The court found that the respondent had discharged its onus of proof that it had a valid reason to terminate Johansen's employment. The court accepted the evidence of Ms Pila Rodriguez, a major customer of the respondent, that Johansen had a telephone altercation with her and that Johansen's conduct was unacceptable and likely to cause damage to the respondent's business. The court also found that the combination of the Rodriguez matter and the earlier matters justified the termination of Johansen's employment. The court rejected the respondent's submission that any compensation for the breach should be minimal because Johansen's employment, had procedural fairness been accorded, would not have lasted for more than a day. The court assessed the compensation at $3,000 and ordered the respondent to pay Johansen that sum.

Orders