Kehagias v Tyre Connection

[1997] IRCA 20

DECISION NO:20/97

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - EMPLOYMENT CONTRACT - whether RESIGNATION or TERMINATION OF EMPLOYMENT.

Workplace Relations Act 1996 (Cth) Part VIA

KEHAGIAS v TYRE CONNECTION
VI96/2481


Before:  MURPHY JR
Place:  MELBOURNE
Date of Hearing:      31 JANUARY 1997
Date of Judgment:    31 JANUARY 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI96/2481

BETWEEN:

CON KEHAGIAS
Applicant

AND

TYRE CONNECTION
Respondent

BEFORE:     MURPHY JR
PLACE:       MELBOURNE
DATE:          31 JANUARY 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The application is dismissed.

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

VI96/2481

BETWEEN:

CON KEHAGIAS
Applicant

AND

TYRE CONNECTION
Respondent

BEFORE:     MURPHY JR
PLACE:       MELBOURNE
DATE:          31 JANUARY 1997

REASONS FOR DECISION
Delivered ex tempore - revised from the transcript

The first issue to be determined in these proceedings under Division 3 of Part VIA of the Workplace Relations Act (Cth) (“the Act”) is whether there has been a termination at the initiative of the employer.  To determine that issue it is first necessary to determine the terms of the employment between the parties. 

Findings.

On the evidence my findings are as follows.  The applicant was referred to the respondent by the CES for a position as a tyre fitter.  He had a discussion with Ms Elaine Daher; her husband Mr Daher, was present.  I am satisfied that the applicant was told that the hours of work were 9.00 am to 5.00 pm, Monday to Friday, and 9.00 am to 3.00 pm on Saturday; a total of forty-six hours per week.  I am further satisfied that the applicant was not told at that meeting what was to be his wage rate.  He was told, however, that he would be paid at the appropriate award rate and the information would be conveyed to him after it was obtained by Ms Daher from Wageline.  I am satisfied that the applicant accepted this.  I am further satisfied that, in fact, the applicant worked those hours subsequently. 

I am unable to accept his evidence that he was promised a wage rate of $200 net per week for Monday to Friday, and $50 per week for Saturday.  I am satisfied that after the applicant commenced work at first he did query with Ms Daher the amount that he was being paid.  I am unable to make a finding as to whether he was paid the amounts set out in Exhibit A2 or in Exhibit R1.  The actual amounts in the applicant's list (Exhibit A2) were not the subject of direct challenge.  I note, however, that they closely approximate the amounts in Exhibit R1. 

I accept Ms Daher's evidence, however, that the applicant was advised that he was being paid at the appropriate rate under the award.  I further accept the evidence of Mr Skinner that the applicant had checked, in his presence, with Wageline as to his award entitlement.  The amended Wage Subsidy Agreement, (Exhibit R3), is of significance in recording that the wage rate for the applicant was not as set out in the original Wage Subsidy Agreement (Exhibit A1). 

Saturday work. 

The key to this case is whether it was a requirement of the applicant's employment that he work Saturdays.  I am satisfied that it was.  I am further satisfied that the applicant requested three Saturdays off, and that this caused inconvenience to the respondent.  I am satisfied that on 9 September, after he had the previous Saturday off, he was at work when Ms Daher confronted him about the difficulties it was causing the respondent.  I accept her version of a conversation on that day.  In particular, I am satisfied that the applicant stated that he did not want to work on Saturdays.  I do not accept that he gave as a reason for this that he was being underpaid or dissatisfied with his pay.

Rather, I am satisfied that Ms Daher confronted him with the proposition that he was required to work on Saturdays, and that the applicant then indicated he did not want to do so.  He proffered as a reason that he wanted to be with his friends and wanted to resume a mechanics' course that he had previously commenced.  It was then that Ms Daher said to him, “what do you want me to do?”  The applicant then said that he would leave on the Friday. 

In preferring the respondent's version in this matter I accept the evidence of Mr El Houli and Mr Callas that the applicant advised them that week that he was leaving and hoping to pursue the course.  I also accept their evidence that he indicated that he did not like the job he was doing.  This provides a motivation or reason why the applicant did what he did on 9 September.  I also accept Ms Daher's version of the conversation on Friday 13 September when the applicant was handed a Separation Certificate (Exhibit A3) which indicates that he had voluntarily left the employment.  In it she recorded the reasons that he had explained to her a few days earlier.  The evidence of the respondent, taken as a whole, has a ring of truth to it. 

The fact that the Wage Subsidy Agreement was amended to record forty-six hours per week at a wage rate which is relatively low, albeit for a junior, gives a reason why the applicant would say to Ms Daher in the interview on the 9th September that the work was too hard and too long.  It would also explain his comments to Messrs El Houli and Callas.  Contrary to his evidence, the applicant, I am satisfied, became dissatisfied with work on Saturdays, and for that reason when Ms Daher made it clear that he was required to do so, tendered his resignation. 

I am satisfied that there was no termination at the initiative of the employer and that the application must be dismissed. 

I certify that this and the preceding three (3) pages
are a true copy of the reasons for decision of
Judicial Registrar Murphy as recorded in the transcript
and revised by the Judicial Registrar.


Associate:      KAREN HALSE
Dated:           31 January 1997


APPEARANCES

Appearing for the applicant:	MR ALAN MCDONALD
Solicitors for the applicant:	MCDONALD & CHARMAN
Counsel appearing for the respondent:	MR J BOURKE
Solicitors for the respondent:	RICHMOND & BENNISON
Dates of Hearing:	31 JANUARY 1997
Date of Judgment:	31 JANUARY 1997