Kathleen Bartlett v Casino Pty Ltd
[1995] IRCA 428
•10 August 1995
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C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - whether applicant’s employment was terminated - compensation
INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170EE, 170DB
KATHLEEN BARTLETT -V- CASINO PTY LTD
No. SI 95/1072
JUDICIAL REGISTRAR: L FARRELL
PLACE: ADELAIDE
DATE: 10 AUGUST 1995
INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No SI 95/1072
B E T W E E N:
KATHLEEN BARTLETT
Applicant
- and -
CASINO PTY LTD
Respondent
MINUTES OF ORDER
BEFORE:JUDICIAL REGISTRAR FARRELL
PLACE : ADELAIDE
DATE : 10 AUGUST 1995
THE COURT ORDERS THAT:
The termination of the employment of the Applicant by the Respondent contravened Part VIA of Division 3 of the Industrial Relations Act 1988.
The Respondent pay to the Applicant compensation in the sum of $12,000.00 within 21 days of today’s date.
The Respondent pay damages pursuant to Section 170EE(5) of the Act in the sum of $577.00 to the Applicant 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 )
SOUTH AUSTRALIA DISTRICT REGISTRY )
No. SI 95/1072
B E T W E E N:
KATHLEEN BARTLETT
Applicant
- and -
CASINO PTY LTD
Respondent
BEFORE : JUDICIAL REGISTRAR FARRELL
PLACE :ADELAIDE
DATE :10 AUGUST 1995
REASONS FOR JUDGMENT
This is an Application pursuant to Section 170EA of the Industrial Relations Act 1988. The Applicant claims compensation for the unlawful termination of her employment.
At the time that her employment came to an end the Applicant was 23 years old and performing administration duties for the Respondent. She had been employed from 22 August 1994 until 17 March 1995.
The Respondent is a Company operating premises in Hindley Street, Adelaide and having interests in gaming machines.
The Applicant claimed that her employment was terminated on 17 March 1995 at the same time as a consultant to the Respondent, Mr D Marsh had his contract with the Respondent terminated. There was no dispute that Mr Marsh’s contract was terminated on that day. A large part of the Applicant’s duties involved assisting Mr Marsh. Prior to her employment with the Respondent she had been employed by Mr Marsh.
The Respondent denied that the Applicant’s employment was terminated. Counsel for the Respondent argued that the Applicant had in fact abandoned her employment.
Evidence regarding the events of 17 March 1995 was given by the Applicant and Mr Marsh. Evidence was given for the Respondent by Mr Wade, a Director of the Company, Mr El Deeb, Manager, Mr Goulding, Manager and Ms Kingston, Administrative Assistant. There were many discrepancies between the evidence of the various witnesses, however in my view Mr Goulding’s straight forward evidence determines the issue of whether the Applicant’s employment was terminated.
Mr Goulding was an employee of the Respondent and the licensee of the premises in Hindley Street. He gave evidence that on advice from one of the Directors of the Respondent, Mr Rologas, he was not to allow either Mr Marsh or Ms Bartlett into their office and to advise them their belongings would be forwarded to them. The Applicant was also requested to return her keys, her mobile phone and her car park card. Mr Goulding was clearly carrying out the instructions of a Director of the Respondent and in my view his words and actions constitute the termination of the employment of the Applicant. I therefore find that the Applicant’s employment was terminated on 17 March 1995 by Mr Goulding on instructions from Mr Rologas.
During the course of the hearing counsel for the Respondent conceded that if I found that the Applicant’s employment was terminated by the Respondent then the termination of employment was unlawful and the only remaining issue to be determined was the amount of compensation to be awarded to the Applicant.
In the circumstances of this matter that was a sensible concession to make.
The Applicant did not seek reinstatement. The Applicant had been employed by the Respondent for a period of approximately seven months. At the time of the termination of her employment her annual salary was $30,000.00. After the termination of her employment she worked unpaid in various business ventures with Mr Marsh on the basis that the business ventures may result in employment for her. They did not.
She made numerous attempts to find work. By the time of the hearing she had been promised work of the same kind and at the same rate of pay that she had received from the Respondent and that work was to commence in mid September 1995.
Her counsel submitted that she should receive compensation in the sum of $15,000.00 being the amount she would have earned had her employment not been terminated. Coincidentally this is the maximum amount that I could have awarded. The Respondent argued that I should take into account the possibility that the Applicant would have resigned or have had her employment terminated lawfully following the termination of the contract of Mr Marsh. It is certainly consistent with the Applicant’s evidence that she would have started to look for other work as soon as Mr Marsh’s contract was terminated. The Respondent also regarded the gratuitous work for Mr Marsh as a matter which warranted the Applicant’s compensation being discounted. I do not agree with that assertion and I do not take that into account. I do however discount the amount of compensation for the possibility that the Applicant’s employment would have come to an end in any event. I therefore award compensation to the Applicant in the sum of $12,000.00.
The Applicant also claimed damages pursuant to Section 170EE(5) in the sum of $577.00 for the failure of the Respondent to provide notice of termination pursuant to the provisions of Section 170DB. It was conceded by the Respondent that no notice had been given to the
Applicant. I therefore award damages to the Applicant in the sum of $577.00 pursuant to Section 170EE(5).
I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.
DATE OF HEARING : 26 and 27 July 1995
FOR THE APPLICANT : Mr M. Davis
FOR THE RESPONDENT : Mr M Crawley
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