Kavanagh v Forges of Footscray

[1996] IRCA 490

DECISION NO: 490/96

C A T C H W O R D S

INDUSTRIAL LAW - Termination of employment - not at initiative of the employer

Industrial Relations Act 1988 ss.170CA, 170CB, 170DE, 170EA

CASES:

Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

Siagian and Sanel Pty Lth (1994) 1 IRCR 1

Grout v Gunnedah Shire Council (1994) 1 IRCR 143

Anderson v Umbakumba Community Council (1994) 1 IRCR 457

KAVANAGH -v- FORGES OF FOOTSCRAY

No. VI-1502 of 1996

Before:  Ryan JR
Place:  Melbourne
Date:  30 September 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-1502 of 1996

B E T W E E N :

MARGARET KAVANAGH
Applicant

AND

FORGES OF FOOTSCRAY
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan            30 September 1996

THE COURT ORDERS:

1. That the application be dismissed.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-1502 of 1996

B E T W E E N :

MARGARET KAVANAGH
Applicant

AND

FORGES OF FOOTSCRAY
Respondent

Before:      Ryan JR
Place:       Melbourne
Date:         30 September 1996

REASONS FOR JUDGMENT
Delivered Ex Tempore
(settled from the transcript)

Even if one allowed for the upset of the Applicant on 13 March, which is understandable and acceptable, and even if one allowed for the uncertainty and inconsistency of the evidence of the Applicant, and even if the Court were to accept the substance of the evidence given by the Applicant today, there still does not remain any clear evidence of termination of the Applicant at the initiative of the employer. I accept the firm and clear evidence of Messrs Nichols and Carlisle that Mr Nichols told the Applicant in the Footscray Police Station on 13 March that she was suspended to 9 am on 22 March 1996.

I agree with Mr McDonald, appearing for the Applicant, that at no stage until today did the Respondent take the position that there was no termination at the initiative of the employer and that there was no jurisdiction for this application to be made.  But there is no obligation on the Respondent to file a particular form of defence or to do it in advance.

I think it is quite clear from the authority of the Full Court in Mohazab v Dick Smith Electronics Proprietary Limited (No 2) (1995) 62 IR 200, and indeed from the cases cited therein; Siagian and Sanel Pty Lth (1994) 1 IRCR 1 at 19; Grout v Gunnedah Shire Council (1994) 1 IRCR 143 and Anderson v Umbakumba Community Council (1994) 1 IRCR 457 that a termination must be, for there to be jurisdiction, a termination at the initiative of the employer.

Mr McDonald concedes that but asserts that the evidence is in support of a termination at the initiative of the employer.  I disagree.  I see no evidence, including the evidence of the Applicant, that would support a conclusion that the termination was at the initiative of the employer.  In those circumstances, the result is inevitable.  The application must be dismissed for lack of jurisdiction.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the application be dismissed.

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

I certify that this and the preceding 1 page is a true copy of the reasons for judgment of Judicial Registrar Ryan.

Associate:          
Dated:  9 October 1996

Solicitors for the Applicant:           McDonald & Charman
Counsel for the Applicant:            Mr A McDonald

Solicitors for the Respondent:      Freehill Hollingdale & Page
Counsel for the Respondent:                 Mr A Bristow

Date of hearing:  30 September 1996
Date of judgment:  30 September 1996