Leanne Burgess and Fourth Sarja Pty Limited (t/as 2 Buck Shop) Shop 114/270 Canterbury Road, Forest Hills Shopping Centre, Forest Hills

[1995] IRCA 190

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 1177 of 1995
VICTORIA DISTRICT REGISTRY

B E T W E E N :

LEANNE BURGESS
Applicant

A N D

FOURTH SARJA PTY LIMITED
(t/as 2 BUCK SHOP)
Shop 114/270 CANTERBURY ROAD
FOREST HILLS SHOPPING CENTRE
FOREST HILLS
Respondent

Reasons for Judgment
 (delivered ex tempore and revised from the transcript)

2 May 1995  PARKINSON JR
This is my decision delivered ex tempore in relation to the matter of Burgess and Fourth Sarja Pty Limited, trading as 2 Buck Shop at Forest Hills Chase, Canterbury Road, Forest Hills. In this matter I have made various orders in relation to amendments to the title of the proceedings.  I am satisfied that the respondent has had notice of this matter.  The respondent failed to appear in these proceedings or to participate in the proceedings in any other respect.

Having heard the applicant in this matter, I am satisfied that her employment was terminated without valid reason by the respondent.  She was employed between 24 October 1994 and 9 January 1995 as a store assistant, having left secure employment as an accounts clerk, for a position represented by the respondent's officers as one where she would be trained to become  store manager.  On 9 January 1995 the applicant's employment was terminated without notice and for reasons of allegations which I am satisfied had no substance. The termination was without any warning.

The termination and, indeed, the allegations the subject of my finding, occurred notwithstanding that the applicant had two weeks earlier been told by an officer of the respondent that she would commence her management training shortly.  On the evidence before me, I am satisfied that the termination of the applicant’s employment was as a result of her pressing for information in relation to her weekly pay slips and entitlements, and her tax deduction amounts together with employment declaration information.

This employer has apparently taken all steps available to it in an attempt to avoid any documentation which would identify the applicant as an employee of this respondent.  It has further failed in its obligations under the Australian Industrial Relations Act 1988 in relation to the termination of the applicant's employment.  I am not satisfied that valid reason existed for the termination pursuant to section 170DE(1) of the Act and, further, I am satisfied that the respondent in terminating the employment of the applicant acted harshly, unjustly and unreasonably.

I find that the respondent failed to comply with section 170DE(1) and (2) of the Act and, further, in failing to give the applicant an opportunity to be heard or fully informed of any allegations against her, failed to comply with the provisions of section 170DC of the Act.  The applicant was given no notice of termination and was unemployed until 22 February 1995.  I propose to order compensation. The applicant has satisfied me that she has been put to expense for the purpose of these proceedings, has suffered distress and anxiety as a result of her treatment together with loss of income as a result of the termination, and loss of future employment prospects of a secure nature as a result of her resigning from her previous employer to commence with the respondent. I propose to order the sum of $4800.00 in compensation.

That amount I have calculated by reference to what I appreciate to be the average earnings of the applicant in the period of the employment of $400.00 per week.  Any attempt to be more accurate than that, either by the applicant or the court is impossible having regard to the lack of payroll records provided by the respondent.  In this amount of $4800.00 I have included no consideration of outstanding leave entitlements or superannuation entitlements which the respondent may have been bound to pay.  I have deliberately excluded those matters from the amount of $4800.00.

Those matters are now open to the applicant to pursue by other proceedings through various Job Watch or other authorities.  It should be noted that it would assist the court, and in particular it would assist unrepresented applicants, if investigating authorities or bodies made attempts to establish the legal identity of employers prior to either the initiation or the conclusion of proceedings such as this. 

Having regard to the above matters, the court will order the amount of compensation earlier referred to.  The orders of the court will be:

1. that the respondent pay to the applicant the sum of $4800.00 pursuant to the claim filed by the applicant on 19 January 1995 in matter VI 1177 of 1995;

1. that such amount shall be payable by the respondent to the applicant within 21 days of today's date.

I certify that this and the preceding three (3) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson as recorded in the
transcript and revised by the Judicial Registrar
on 10 May 1995.

Associate:
Dated:   2 May 1995

Applicant in person
No appearance for the respondent

Date of hearing:  2 May 1995
Date of judgment:  2 May 1995