Kontominas v Olympia Group Pty Limited

[1995] IRCA 570

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - REDUNDANCY - PROCEDURAL FAIRNESS - HARSH, UNJUST OR UNREASONABLE -COMPENSATION.

Industrial Relations Act 1988

Quality Bakers of Australia Ltd. v Goulding (unreported 23 June 1995, No. NI 285 of 1995)

KONTOMINAS v OLYMPIA GROUP PTY LIMITED  - No.  NI 2173 of 1995

Before:  Judicial Registrar WALKER
Place:  Sydney
Hearing Dates:          4, 29 August 1995
Judgment Date:        24 October 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY  N⁰. NI 2173 of  1995

Between:  HARRY KONTOMINAS

Applicant

And:  OLYMPIA GROUP PTY LIMITED

Respondent

Before:  Judicial Registrar WALKER
Place:  Sydney
Hearing Dates:          4, 29 August 1995
Judgment Date:        24 October 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.  The respondent pay to the applicant compensation in the sum of $9,501.00.

2.  Such payment to be made within 21 days of the date of this judgment.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY  N⁰. NI 2173 of 1995

Between:  HARRY KONTOMINAS

Applicant

And:  OLYMPIA GROUP PTY LIMITED

Respondent

Before:  Judicial Registrar WALKER
Place:  Sydney
Hearing Dates:          4, 29 August 1995
Judgment Date:        24 October 1995

REASONS FOR DECISION

Mr Harry Kontominas, the applicant  in  these proceedings commenced employment with the respondent company in January 1987 as a site supervisor.  On 9 May 1995, while he was on paternity leave, he was told that he was terminated as his position had become redundant.  The applicant gave evidence that Mrs Constantinidis had telephoned him and told him that he was terminated and made redundant and not to come back next week, and that her solicitors would notify him in the mail.  Mr Constantinidis, the managing director of the company, in his evidence in chief, was asked by his counsel:

“... you  have heard Mr Kontominas’s evidence of his conversation with your wife, is his recount of the conversation consistent with the instructions you gave to her to contact him and advise him his employment was terminated?”

Mr Constantinidis: “Primarily, yes.”

From the evidence it was also clear that the applicant was not paid any income for the month of May 1995, or any pay in lieu of notice, long service leave or any accrued annual leave.

There was no argument by the applicant that there was not a genuine redundancy in this case and the respondent relied upon the decision of Beasley J in Quality Bakers of Australia Ltd. v Goulding (unreported 23 June 1995, No. NI 285 of 1995) to discharge the onus as to the valid reason for termination.  The only question that remains to be answered is whether the termination was harsh, unjust or unreasonable?

In the circumstances of this case the issue is simply, did the respondent consult with the applicant and alert him as to the possibility of his position becoming redundant?  The applicant is emphatic that he was never consulted or advised that this was a possibility.  Mr Constantinidis’s evidence on the other hand is that the applicant was advised of the position of the company and that there had been meetings held concerning the problems the company was experiencing.

The onus of proof as to whether the redundancy was harsh, unjust or unreasonable rests on the applicant and it was the applicant’s unequivocal evidence that he was never advised that he was likely to be made redundant.  He was asked by his counsel:

“Did anybody prior to your termination of employment warn you that your position would be deleted and you would be made redundant?”

The applicant replied: “No.”

The applicant was then asked:

“Were you given an opportunity to discuss your position in relation to the corporate structure prior to your termination?”

The applicant replied: “No.”

In cross examination it was put to the applicant that there were two meetings called by Mr Constantinidis, one in February 1994 and one in April 1994 and that Mr Constantinidis had discussed a split within the company.  The applicant agreed that these meetings had taken place but the result was that Mr Constantinidis had approached him and asked him if he would be capable of undertaking the work of the sales representative and also the project manager who had left the company as a result of the split.  The applicant gave evidence that he replied:

“Yes... I’ve been doing it for eight years, I don’t see why I can’t continue.”

Counsel for the respondent suggested to the applicant that Mr Constantinidis had discussed privately with the applicant, the state of the company prior to him taking his paternity leave and the applicant denied the suggestion.  It was then put to the applicant that prior to his taking paternity leave, he refused to do any other duties apart from sitting in the office and was unco-operative.  The applicant also denied these suggestions.

I am satisfied that on the balance of probabilities the respondent had failed to consult the applicant regarding his redundancy and that therefore the termination of his employment in such circumstances was harsh unjust and unreasonable.

I determine compensation in the amount of $9,501.00 and do so order.  

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Decision of Judicial Registrar Walker.

Associate:  Kerry Harrison

______________

Date signed:  24 October 1995

Appearances

Counsel for the applicant:                 Mr P. Barnes
Solicitor for the applicant:                Mr V. Panaretos, Steve Masselos & Co.

Counsel for the respondent:              Mr R. Moore
Solicitor for the respondent:             Mr S. Jamieson, Parish Patience Solicitors.

Dates of Hearing:  4, 29 August 1995

Date of Judgment:  24 October 1995