K.J. Kelsall and Bryan Snooks and Judith Snooks trading as Diamond Valley Ultra Tune

[1994] IRCA 17

INDUSTRIAL RELATIONS COURT          
OF AUSTRALIA  VI 202 of 1994  
VICTORIA DISTRICT REGISTRY         

B E T W E E N:

K.J. KELSALL
  Applicant

A N D

BRYAN SNOOKS AND JUDITH SNOOKS TRADING AS DIAMOND VALLEY ULTRA TUNE
Respondent

Reasons for Judgment

(Delivered Ex Tempore - Revised from draft transcript)

PARKINSON JR
3 August 1994

This Application is made pursuant to section 170EA of the Industrial Relations Act 1988 by Mr Kenneth James Kelsall, the applicant. The proceedings are brought against Diamond Valley Ultra Tune, and I have indicated to the applicant that I will be granting leave to the applicant to amend the name of the respondent in the proceedings to Bryan Snooks and Judith Snooks trading as Diamond Valley Ultra Tune.

In this proceeding, the applicant claims that the termination of his employment by the respondents was harsh, unjust and unreasonable.  In these proceedings, the applicant appeared in person and there was no appearance for the respondents.  I am satisfied that the application and affidavit materials have been served upon the respondents, together with notification that the application was set down for final hearing in this court this day.

The applicant filed an affidavit of service of the application, the matter having been listed for directions before Mr Justice Gray on 16 May 1994.  At that directions hearing there was no appearance for the respondents.  The respondents were subsequently advised by a copy of a letter from the registry of this court of the hearing that was to take place this day.  In view of the above, I decided to proceed to hear and determine the application in their absence.

The applicant is aged 50 years and was employed on a permanent full time basis by the respondents as service manager\motor mechanic in their Ultra Tune operations.  The applicant gave evidence as to the circumstances surrounding his employment and termination of his employment.  The evidence was that he was employed by the respondent between 3 February 1992 and 15 April 1994.  The evidence was further that his employment was terminated as a result of a continued downturn in business of the respondent and was a redundancy situation in which no replacement employee was engaged and, in fact, the respondent owner/operator took over the duties of the applicant.  The applicant does not contend that this was not a true redundancy situation.

There is, however, a further element to the termination of the applicant of the basis of redundancy.  The evidence of the applicant was that he had in or about January 1994 queried with his employer whether his employment was at risk and was told that it was not.  It appears that he was further told that should it become at risk he would receive advice.  The applicant was given no further information as to any possible termination of his employment until his last day of work prior to commencing his annual leave in 1994.

On that day, 15 April 1994, his employer, the respondent, Mr Bryan Snooks, advised him at the close of business of his termination of employment effective that day.  The evidence before this court is that the employment was terminated on and from 15 April 1994 and that payment was made in cash for accrued annual leave of two weeks and 29 hours owing to the applicant, and from the evidence I find that no notice, whether oral or payment in lieu, was given to the applicant as to his termination.

Neither the amount of payment for annual leave, nor the relevant period of proposed annual leave could be attributed to the requirement period of notice of termination of employment; nor could the respondent rely upon that period of annual leave for the purposes of complying with section 170DB of the Industrial Relations Act 1988. This is because the applicant by that section was entitled to a full and complete total of three weeks notice. The period of annual leave which was provided by the respondent amounted to two weeks and 29 hours.

In addition, it is my view that the right to annual leave accrued by the applicant pursuant to his federal award or other contractual entitlements is an entitlement additional to his entitlement pursuant to the Industrial Relations Act 1988 to a prescribed period of notice. In this regard, I refer to a decision of the Industrial Appeals Court of Western Australia in Amalgamated Metal Workers and Shipwrights Union (Western Australian Branch) and Multicon Engineering Pty Limited (1980) 22 AILR 255.

I note at this stage that I have no evidence before me as to any additional entitlements which may exist in relation to the applicant's termination of employment arising out of the application of any federal award.

I am satisfied that the respondent failed to give the appropriate notice of three weeks to the applicant upon termination of his employment and accordingly find that the respondent contravened section 170DB of the act. I find also that the respondent contravened section 170DE of the act in relation to harsh, unjust and unreasonable termination for the following reasons. I find the conduct of the respondent in terminating the employment of the applicant in the manner that it did, with no notice, the failure to foreshadow any likely termination, and the failure of the employer to discuss with the applicant any other possible options was contrary to proper employment practice and appropriate business management.

I find, therefore, that pursuant to section 170DE, subsection 2, of the act that the termination of the employment of the applicant by the respondent, whilst for a valid reason of redundancy, was nevertheless harsh, unjust and unreasonable having regard to the procedure adopted by the employer and having regard to the failure to give notice to the employee.

The applicant sought an order for the payment of the notice and I propose pursuant to section 170EE subsection 5 of the act to make such order.  The payment will be of damages in the sum of $1800 which is the amount pursuant to the provisions of the act the applicant would have been entitled to had the employer complied with the notice, provisions of the act.

The applicant does not seek reinstatement and, in my view, in the circumstances of this termination reinstatement would be impracticable.  In view of my finding, however, that the dismissal of the applicant was harsh, unjust and unreasonable, it is my decision that I will order that the respondent pay to the applicant an additional amount of $600 in respect of the contravention of section 170DE of the act.  That is, in relation to the procedural manner in which the termination was dealt with by the employer.

The court orders as follows:

(1) that the applicant be given leave to amend the name of the respondent in these proceedings to Bryan Snooks and Judith Snooks trading as Diamond Valley Ultra Tune;

(2) I declare that the termination of the employee's employment by the employer contravened division 3 of Part 6A of the Industrial Relations Act 1988;

(3) an order that the respondents pay compensation of $600 to the employee arising out of the contravention of section 170DE of the act; and

(4) an order that the respondents pay to the employee the amount of $1800 as damages arising out of the failure to accord the employee notice as required by section 170DB of the act;

(5) time for payment is 21 days from the date of this order.

I certify that this and the five (5) preceding pages
are a true copy of the reasons for judgment of Judicial
Registrar Parkinson as recorded in the draft transcript
and revised by the Judicial Registrar on 8 August 1994.

Associate:

Dated:   9 August 1994

Applicant:                 In person

Respondent:              No appearance

Date of hearing:        3 August 1994

Date of judgment:     3 August 1994