Kristen Leigh Renkin v Lorraine Moss (trading as Lorenzo Foods)
[1995] IRCA 227
•19 May 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2737 of 1994
B E T W E E N :
KRISTEN LEIGH RENKIN
Applicant
AND
LORRAINE MOSS (trading as LORENZO FOODS)
Respondent
Before: Judicial Registrar Staindl
Place: Melbourne
Date: 19 May 1995
REASONS FOR JUDGMENT
(Ex Tempore - Revised from Transcript)
Kristen Lee Renkin ("the applicant") was employed with Lorenzo Foods from 19 September 1994 until 21 November 1994. I am satisfied that Lorenzo Foods is a business name owned by Lorraine Moss. There has been a deal of correspondence from Lorenzo Foods to the Australian Industrial Relations Commission and to this Court, including a notice of appearance filed on behalf of Lorenzo Foods in this matter. In that notice of appearance the contact person is described as Lorraine Moss and that notice is apparently signed by Ms Moss. In these circumstances it is appropriate that the name of the employer as described in the application as Lorenzo Foods be substituted by Lorraine Moss, trading as Lorenzo Foods.
The applicant was employed as a trainee sales representative. She was employed initially on what was known as a training salary, at the rate of $250 per week for the first six weeks and thereafter at the rate of $300 per week. She has given evidence, which I accept, that the appropriate rate of pay for her was $10.33 per hour when working as a sales demonstrator. I am satisfied that she was working as a sales demonstrator in the weeks immediately preceding the termination of her employment. On the basis of a 38-hour week she should have received $392.54 per week.
On Monday, 21 November 1994, the applicant attended a meeting with the manager of Lorenzo Foods and one other person. Some questions were asked of her concerning her attitude to the business, to which she was largely unresponsive. She was then told by the manager that he should have fired her weeks ago and to get out of the office. However, she had to wait until the following Friday to receive the two weeks pay owing to her and she was not given any pay in lieu of notice.
This case therefore presents as a case of summary dismissal. In my view there was no conduct on the applicant's part to justify summary dismissal. Furthermore, it seems to me that the employer did not have a valid reason to terminate the applicant's employment within the meaning of section 170DE. I therefore find that the applicant's termination has been unlawful. I add that in a letter dated 22 December 1994, signed by Ms Moss and directed to this Court, various allegations in respect to the applicant's performance and conduct were made. I am satisfied after hearing from the applicant that these various allegations are unfounded.
One week following her termination, the applicant found another job which was better paid and accordingly she does not seek reinstatement. In addition I have noted the correspondence from Lorenzo Foods which indicates that Ms Moss is ill and is expected to take some time to recover. Because of these factors, I find that reinstatement is impracticable.
The applicant seeks compensation. At the time of termination of her employment she was owed her weekly wage of $392.54. She was paid a total of $600 for two weeks work immediately prior to the termination of her employment. During the two previous weeks, she had in fact worked 53 hours each week. Thus she is owed a further 30 hours’ pay for those two weeks, being $309.90. She is also owed $392.54 for the week's pay in lieu of notice to which she was entitled. Further, the applicant should have been paid pro rata holiday pay at the time of termination. She was employed for nine weeks and was therefore entitled to 0.7 of a week holiday pay. Her weekly base rate of $392.54 multiplied by 0.7, gives $274.78.
Thus the applicant is entitled to the following amounts by way of compensation and/or damages:
Wages owing at the time of termination being
2 weeks pay of $785.08 less $600 paid $185.08
Extra hours worked during those 2 weeks $309.90
1 weeks pay in lieu of notice $392.54
Pro rata holiday pay $274.78
Total $1162.30
Accordingly I order that:
Lorraine Moss (trading as Lorenzo Foods) be substituted for the respondent’s name of Lorenzo Foods.
Lorraine Moss pay to the applicant the sum of $1162.30.
I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl.
Associate:
Dated:
Applicant in Person
No appearance for the Respondent
Date of hearing: 19 May 1995
Date of judgment: 19 May 1995
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - Identity of employer - Summary dismissal not justified - Remedy - compensation
Industrial Relations Act 1988 ss.170
KRISTEN LEIGH RENKIN - v - LORRAINE MOSS (trading as LORENZO FOODS)
No. VI 2737 of 1994
Before: Judicial Registrar Staindl
Place: Melbourne
Date: 19 May 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2737 of 1995
B E T W E E N :
KRISTEN LEIGH RENKIN
Applicant
AND
LORRAINE MOSS (trading as LORENZO FOODS)
Respondent
MINUTES OF ORDERS
Judicial Registrar Staindl 19 May 1995
THE COURT ORDERS:
Lorraine Moss (trading as Lorenzo Foods) be substituted for the respondent’s name of Lorenzo Foods.
Lorraine Moss pay to the applicant the sum of $1162.30.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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