Mandy Patricia Ouvrard v Josef Woloszyn
[1995] IRCA 280
•11 May 1995
C A T C H W O R D S
INDUSTRIAL LAW - Termination of employment - claim of unlawful termination - whether casual employee - application dismissed.
INDUSTRIAL RELATIONS ACT 1988, S 170EA
INDUSTRIAL RELATIONS REGULATIONS, Regulation 30B(3)
MANDY PATRICIA OUVRARD v JOZEF WOLOSZYN - WI 1264 of 1995
BEFORE: FLEMING JR
PLACE: PERTH
DATE: 11 MAY 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1264
BETWEEN: MANDY PATRICIA OUVRARD
- Applicant
AND: JOZEF WOLOSZYN
- Respondent
MINUTE OF ORDERS
BEFORE: FLEMING JR
PLACE: PERTH
DATE: 11 MAY 1995
THE COURT ORDERS THAT:
The application be dismissed.
NOTE:Settlement and entry of Orders dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1264
BETWEEN: MANDY PATRICIA OUVRARD
- Applicant
AND: JOZEF WOLOSZYN
- Respondent
BEFORE: FLEMING JR
PLACE: PERTH
DATE: 11 MAY 1995
EX TEMPORE REASONS FOR JUDGMENT
(as revised from transcript)
The applicant was employed by the respondent for approximately one month from the end of January 1995 until 3 March 1995. Her duties involved, among other things, book work, delivering lunch orders and the general duties of a lunch bar.
The applicant gave evidence that she had previously worked in the respondent's lunch bar for 2½ years while her parents had owned it, and that after the sale of the lunch bar to Mr Woloszyn in January 1995, she had continued to work on in the business. The applicant's evidence is supported by the respondent who agreed she was employed by him to work for 55 hours per week and was to receive $500 clear per week.
The applicant agreed she was not entitled to sick pay or holiday pay under the terms of this contractual agreement. She said her contract of employment was verbal; that she was not a member of a union; and that she thought she was a full-time employee.
The applicant gave evidence that as a result of her increased work load, she sought to reduce her hours and approached the respondent and asked him if she could do so, but retain the same rate of pay. Mr Woloszyn declined this proposal. It seems this discussion occurred approximately one week prior to the cessation of employment on 3 March 1995.
The applicant gave evidence that on Friday 3 March she had a conversation with Mr Woloszyn in which she asked if she would be paid for the up-coming public holiday. The evidence about the conversation that occurred in relation to the discussion about the public holiday on 3 March is conflicting. Mrs Ouvrard said that when she asked for the paid public holiday, Mr Woloszyn laughed and said "You are the same as the other girls", the implication being that the other girls were casual employees and so also was the applicant.
Mrs Ouvrard said that there was a further discussion later that day wherein she sought payment for the public holiday. She gave evidence that Mr Woloszyn said "We can discuss it tomorrow or it's all over". Mrs Ouvrard said Mr Woloszyn said she was "breaking our agreement". She said the conversation went back and forward between the two of them and then the respondent said as follows: "Last day tomorrow"; Mrs Ouvrard said, "Are you sacking me?"; and the respondent said, "That's your last day tomorrow". When Mrs Ouvrard was asked whether the respondent said he was sacking her, she said, "No, he said - all he said was that it was `your last day tomorrow'".
The applicant gave evidence that later on the same day, she rang Mr Woloszyn and told him that she had telephoned the Industrial Relations Court to which he replied, "You're not sacked, come in tomorrow". Mrs Ouvrard gave evidence that she returned to work the next morning and that there was a further discussion with Mr Woloszyn who said, "We'll work it out". Mrs Ouvrard gave evidence that she refused to serve any customers until the matter
was resolved. Mr Woloszyn then put it to her that she could work full-time from 7 am to 3 pm at a reduced rate, with public holidays, sick pay and holiday pay, or on the same rate she was currently working, that is the 55 hours and $500 clear a week. Mrs Ouvrard gave evidence that she then left the respondent's lunch bar.
Mr Woloszyn denied dismissing Mrs Ouvrard. His evidence was that on Friday 3 March he offered her the choice of either full-time work from 7 am to 3 pm daily with public holidays, sick pay and holiday pay or, alternatively, working 55 hours a week at $500 a week. Mr Woloszyn denied that he was told by Mrs Ouvrard that she had telephoned the Industrial Relations Court.
This is an emotional case and I accept that Mrs Ouvrard has invested a great deal of effort into the lunch bar that was once owned by her father. I accept her evidence and do not doubt her credibility, especially in relation to her evidence about calling the Industrial Relations Court and in relation to her evidence about the conversations she had with Mr Woloszyn. However, that still leaves the court with a conflict in the evidence. I also do not disbelieve Mr Woloszyn. I accept that Mr Woloszyn did not dismiss Mrs Ouvrard, but rather that she resigned when her conditions of employment were not varied in a way that was acceptable to her. I prefer the evidence of Mr Woloszyn in that respect.
I find that the applicant was employed on a casual basis and that there is no evidence before me on which to make any other finding. There is no evidence about the contract of sale of the business which includes her terms of employment prior to the taking over of the business by Mr Woloszyn. That may have been helpful in Mrs Ouvrard's case in terms of determining whether or not her conditions of employment were to go on continuously as they had prior to the sale of business. Accordingly, this court has no jurisdiction to hear this application due to the exclusion pursuant to Regulation 30B(3) which deals with casual employees.
In relation to the remedy sought, Mrs Ouvrard is not seeking reinstatement. If this court had jurisdiction to hear this matter and if this court had determined that the dismissal had been unfair, the court would then have to consider what compensation the applicant was entitled to. On the applicant's own evidence, she has been able to find new employment within three
days after the cessation of employment with the respondent. However, the applicant chose
not to take up that employment for a further three weeks. If this court were to award
compensation, the maximum that the applicant would be able to obtain, in my view on the evidence, is three days pay.
I dismiss the application.
I certify that this and the preceding three pages are a true copy of reasons for judgment of Judicial Registrar Fleming.
Associate:
Date:
Applicant appeared in person.
Respondent appeared in person.
Date of Hearing: 11 May 1995
Date of Judgment: 11 May 1995
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