Kim Phuoc Le v Tamir Clothing Manufacturers Pty Limited

[1995] IRCA 549

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY  N⁰. NI 2352 of  1995

Between:  KIM PHUOC LE

Applicant

And:  TAMIR CLOTHING MANUFACTURERS PTY LIMITED

Respondent

Before:  Judicial Registrar TOMLINSON
Place:  Sydney
Hearing Dates:          12, 19 September 1995
Judgment Date:        5 October 1995

REASONS FOR DECISION

The applicant in this matter Mrs Kim Phuoc Le at all times was spoken to through an interpreter.  The applicant gave her age as 36 years, that she was separated from her husband and that she had no dependents.  The applicant arrived in Australia in 1989 from Vietnam and stated that this was her first job since coming to Australia.  By application filed 1 June 1995, the applicant sought compensation, including compensation of arrears of wages due under the award, correct wages on termination, adjustments for all allowances plus damages including mental stress and damages for physical injury, the applicant it was alleged, being hit by her supervisor.

It was agreed at the commencement of the matter that the applicant was not proceeding with a claim for an on-going medical condition arising out of the employment and the assault that allegedly occurred on 5 March 1995.  The applicant through her counsel Mr Ward told the Court, that this was a “sweat shop” employment situation whereby the applicant was paid approximately $5.50 per hour and that in addition to compensation for unlawful termination the applicant sought compensation for under award wages.  The applicant told the Court she commenced work on 22 February 1995 and that she was terminated on 15 May 1995.  On that date according to the applicant, the supervisor shouted to her boss, Mr Hassan, that the applicant should be sacked as she would cause trouble, apparently for reasons not connected with the employment.  The applicant stated she was called into the office of the boss and told not to work any more but to go home. 

The applicant said she requested if she could telephone her brother.  Apparently Mr Hassan fetched her handbag for her.  The applicant stated she asked the boss:

“Why did you sack me - I did nothing wrong?”

The applicant stated the respondent Mr Hassan handed her a Separation Certificate marked exhibit 1 in these proceedings and her nephew, Mr Nguyen Hoai Vu arrived at the factory and acted as interpreter.

Through her nephew the applicant asked if it was the supervisor who caused trouble, whereupon the respondent allegedly replied, that the respondent Mr Hassan could not sack the supervisor.  At the time of departing the premises the applicant was given the sum of  $130.00.

The applicant stated she felt there was no justice and that she was very afraid.

The applicant relayed to the Court that on 15 March 1995 she was assaulted by the supervisor Miss Thuy, a woman also of Vietnamese extraction.  The applicant stated as a result of a blow she felt something heavy on her head and that she fell to the ground, unconscious.

After she recovered and was discussing the matter with the respondent Mr Hassan, the applicant said Mr Hassan told her not to tell anybody about the assault.  The applicant stated that she was away from work for two days as a result of the assault.

The applicant stated she was employed as a skilled machinist and that there had never been any complaint about the quality of her work.  The method of payment was that each Friday the applicant would receive an envelope with a sum of cash inside.  Admitted into evidence as MFI 1 was a bundle of envelopes with the name “Lee” with ink on the front.  The applicant advised she knew no details concerning superannuation, holiday pay nor the amount of tax instalments deducted from her weekly salary.

Approximately one week after instructing her solicitor to act in these proceedings the applicant received the sum of $638.00 from the respondent Tamir Manufacturers.  Admitted into evidence was exhibit 2 on the letterhead of the respondent addressed to the applicant that stated:

“Dear Mrs Le,

I am writing to (sic) regarding your termination on 25/05/95.  Your position was made redundant due to lack of work, I have calculated your termination payment as follows:

Holiday pay  1 week   $380.00
           Payment in Lieu of Notice                   380.00 
           TOTAL   760.00
Less: Tax 62.60 x 2   125.20
Net (Cheque attached)  634.80

I would also like to point out that your position was offered back to you but you declined to return to work.

Yours faithfully,

Hassan Abdel Rahim.”

The applicant said that she frequently worked on Saturdays and that she calculated she was paid at the rate of $5.50 per hour for the amount of hours worked.  This calculation was made from notes kept by the applicant.

In cross examination the applicant stated she had had limited part-time work since leaving the employer, the respondent.

The applicant further stated that when she commenced work with the respondent, her supervisor Miss Thuy showed her what to do.

The applicant agreed in cross examination that at the time of dismissal the respondent, Mr Hassan stated that he did not have enough work to keep her in employment.  Further, the applicant agreed that the respondent said to her nephew that he would telephone her when he needed to re-employ her.

The applicant was shown exhibit 3, the Employment Declaration Form.  That form had the box ticked indicating part-time work as the basis of employment but it seems for these proceedings nothing hung on that fact.  On the back of that form there were two telephone numbers written, being the home phone number of the applicant and the mobile telephone number of the nephew of the applicant.  In response to questions in cross examination, the applicant agreed those telephone numbers were given to the respondent so that he may contact her and advise her when he needed her as he had more work. 

The applicant stated she received no telephone messages from the respondent offering her further work after the termination, the only communication being the letter referred to previously.  The applicant stated she possibly did not receive the telephone calls as she was out looking for work at the time.
On behalf of the applicant the Court heard from Mr Vu Hoai Nguyen who advised he attended the factory on 15 May 1995 in response to a telephone call from his Aunt.  The nephew advised he did not recall the respondent Mr Hassan saying there was not enough work to keep the applicant employed.  The witness also stated that it was his opinion Mr Hassan terminated the applicant as there was trouble with other women in the factory.

On behalf of the applicant the Court also heard from Mrs Pham Lien, who stated she worked at the factory of the respondent as a machinist and had been there for some four years and that she left there in April of 1995.

The witness deposed that on 15 March 1995 the supervisor physically attacked the applicant so that the applicant fell down to the floor.  The witness denied that at that time she was in Queensland.  The witness stated she invented a story concerning the health of one of her sons as she wished to conceal from her fellow workers the situation that had developed between herself and the respondent employer.

The witness denied discussing the question of payment for her evidence with Mrs Nguyen Thai Thiet.

In re-examination the witness stated there was always plenty of work at the factory of the respondent.  Mr Hassan Abdel Rahim told the Court that he operated the Tamir Clothing factory and that he had some seven to eight employees.  When extra employees were needed Mr Hassan employed casual labour.

In his evidence in chief Mr Hassan stated during May of 1995 he terminated the applicant as there was not much work due to a seasonal change in the weather.

Some two days later after the termination the respondent Mr Hassan stated that he called the applicant at home to ask her to come back to work as he had more work for her to do.  The witness agreed that after receiving notification from the Industrial Relations Court he provided the applicant with a cheque of $684.00 as referred to previously.

The witness specifically denied any knowledge of the alleged assault on 15 March 1995.  Mr Hassan stated that the applicant was paid the sum of $330.00 a week for a five day week and agreed that the next time the Court was sitting that he would bring the wages records of his factory as evidence.  The witness stated when cross examination resumed that he indeed telephoned the applicant two days after he terminated her to say that he needed her back at work.  Further, that the applicant has put on two further employees since the applicant was terminated.  Admitted into evidence as exhibit 4 was the time, pay and wages book of the respondent. 

CONCLUSION

In several areas it appears that record maintained by the respondent was inaccurate. The respondent had been a clothing manufacturer in excess of ten years and advised the Court that he left the details of superannuation payments to a specialist consultant Mr Robert O’Connell from the AMP Society. However, on behalf of the applicant by way of final submission, it was suggested there was no shortage of work and the Court was asked to draw the conclusion that the termination of the applicant contravened the Industrial Relations Act entitling her to compensation payable. It was further alleged that the respondent owed to the applicant the obligation of a safe system of work and in so far as a fellow employee tapped the applicant that obligation was not fulfilled.

On behalf of the respondent it was alleged that the applicant lacked credibility and that the evidence of the respondent Mr Hassan clearly indicated the reason for termination was a lack of work. 

In addition to compensation under the Industrial Relations Act the applicant has claimed an under award payment in that she was paid at the rate of $6.00 per hour. The respondent in resisting this claim produced copies of the relevant award governing the work done and also gave a differing account of the hours worked. There was no evidence produced to satisfy the claim of the applicant that she indeed worked excessive hours. Neither party produced documented evidence as to the hours worked. I find the wages book produced by the respondent as exhibit 4 to be sadly lacking in accuracy and it is noted that the applicant in her evidence in chief told the Court that she kept a record of the hours worked but that these records were not produced to the Court. Accordingly I am unable to find anything other than that the applicant worked a normal thirty-eight hour week.

On 15 May 1995, the respondent went to the trouble of calling the applicant into his office, and according to him, terminating her because he did not have enough work for her to do.  Subsequently, some forty-eight hours later, the respondent telephoned the applicant in an attempt to speak to her to say that he now wished to re-employ her.

In this case I find that both the applicant and the respondent lacked credibility, however a common thread appears to be that the respondent terminated the applicant without a valid reason.

For the purposes of these proceedings I find that the applicant was paid at the rate of $380.00 per week.  The applicant in her evidence indicated that she wished to work full-time and had refused part-time employment as this was not satisfactory.  To my mind insufficient evidence was presented to the Court that the applicant discharged her obligation to mitigate her position and to actively look for a job to replace the one she held with the respondent.

The applicant has been paid notice payments as required by s170DB and accordingly this section of the Industrial Relations Act has been followed.

s170DC of the Industrial Relations Act provides an employee is to have an opportunity to respond to allegations. That did not happen here and so I find the Act has been breached.

s170DE provides an employer must not terminate an employee without a valid reason.  Here I find the reason of “not enough work” not to be a valid reason and that this section of the Act has been breached.

It is a finding of this court that having regard to the operational requirements of the employer that the termination of the applicant within the meaning of s170DE(2) was harsh, unjust and unreasonable

I order the respondent to pay to the applicant the sum of $4,940.00 within twenty-eight days of the date of this judgment.

I hereby certify that this and the preceding (7) pages are a true and accurate copy of the Reasons for Decision of Judicial Registrar Tomlinson.

Associate:  Wayne Ball

______________

Date signed:  5 October 1995

APPEARANCES

Counsel for the applicant:                Mr W. Ward
Solicitor for the applicant:                Mr J.A. Buda & Associates
Counsel for the respondent:             Mr R. Johnston
Solicitor for the respondent:             Mr G. Shad & Co.

Dates of Hearing:  12, 19 September 1995

Date of Judgment:  5 October 1995