Mapolar v Donna Rosa Foods
[1996] IRCA 499
•14 October 1996
DECISION NO: 499/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1696 of 1996
B E T W E E N:
Hakan MAPOLAR
Applicant
A N D
DONNA ROSA FOODS
Respondent
REASONS FOR DECISION
14 October 1996 PARKINSON JR
This is a decision in relation to an application made pursuant to Section 170EA of the Industrial Relations Act 1988. (“the Act”) The applicant was employed by the respondent as a bakers assistant on 2 January, 1996 and the employment terminated on 11 April, 1996.
The respondent’s business is the packaging and supply of pizza breads and other specialty bread products to retail outlets. There was, between the applicant and the respondent, a written employment agreement as to some of the terms and conditions of the employment. The applicant’s duties were to bake and package the breads and to perform general stores duties. The applicant’s wages were $12.00 per hour for 30 hours work per week. He was employed on a part-time basis.
The respondent received a subsidy from the Commonwealth for wages paid to the applicant. This subsidy continued for 20 weeks of the employment and ceased to operate on 31 May 1996. In the wage subsidy agreement (Exhibit R5), the applicant’s status as a part time worker was confirmed, together with his hourly rate of pay and number of hours of work per week. This document was certified on behalf of the respondent by Mr Milikins, the production manager of the respondent.
It was a term of the written employment agreement (Exhibit A1), that the applicant would work reasonable overtime as required by the employer. Hours of work provided for in the agreement were “deemed to be ordinary hours”. No additional amount was payable for any overtime hours which the applicant was required to work. The evidence was that the applicant worked overtime on the three days prior to the date of the termination of his employment. On 11 April 1996 the applicant was approached by Mr Milikins at approximately 11.30am and informed that he was required to work overtime on that day. The applicant protested advising the respondent that he had to return the family car to his parents. The applicant’s evidence was that there was a specific need to do so on that day as his father had a dental appointment and needed to drive the car to attend. Mr Milikins denies that he was informed of this fact, although he concedes that he was informed that the applicant had to take the car home at the end of his shift.
I prefer the evidence of the applicant in this case. I found him to be a forthright and frank witness. I found the evidence of Mr Milikins and Mr D’Alberto unsatisfactory. Mr Milikins was an evasive witness who was reluctant to assist the Court with information. Aspects of both their accounts of an alleged assault by the applicant after the termination of the employment were inconsistent and lead me to form the view that their evidence is unreliable and that the applicant’s evidence is to be preferred.
The applicant’s employment was terminated in circumstances where the applicant had worked significant amounts of overtime in the preceding days and in a circumstance where the applicant was given almost no notice of the requirement to work overtime. He had clear domestic difficulties and raised those with the respondent. This is not a case where the applicant refuses without any reason to perform overtime. I am satisfied that the “reasonableness” aspect of the obligation in the contract to perform overtime, is not merely to be interpreted by having regard to the respondent’s requirements. The effect of the requirement to work overtime upon the applicant is a matter of relevance. In this case it was not reasonable to expect the applicant to alter his domestic arrangements on such a short period of notice. The obligation to find alternative arrangements to those already planned, so as to accommodate the overtime was not an obligation which fell merely upon the applicant. If it was the desire of the respondent that the applicant work overtime which was not reasonable, then a mutual arrangement satisfactory to both was required. I am satisfied that the applicant offered to try to make alternative arrangements to enable him to work the overtime on that day and this was dismissed out of hand by Mr Milikens. The applicant did not fail to comply with any obligation under the contract of employment. The termination of the applicant’s employment as a consequence of his refusing to work overtime on 11 April, 1996 was without valid reason.
The respondent referred to the work performance of the applicant as in some way supporting a valid reason for the termination based upon his work performance. There was no evidence of any substance to satisfy the Court that the applicant’s work performance had been called into question prior to the date of termination of employment. The applicant was employed on a subsidised wage program, he had no experience in baking and the respondent knew this when it hired him. The applicant apparently made a minor error in relation to the baking of some rolls on, at most, two occasions. These errors were pointed out to him by the manager. These errors occurred a significant period of time prior to the termination of the employment and despite this, the applicant continued to be called upon to work overtime. I am not satisfied that the applicant was warned in any sense which could have been construed as reflecting upon his continued employment in relation to these matters. Two documents described as written warnings, (Exhibits R3 and R4) were tendered. I am satisfied that these documents were never produced to the applicant in the course of the employment, nor at the time of the termination of employment. Further the documents are not reliable as they are on their fact inaccurate. Exhibit R2 is a document dated 28 February, 1996 and described by a tick in the relevant box as a second warning. Exhibit R3 is a document dated 4 March, 1996 and described by a tick in the relevant box as a first warning. I am not assisted by these documents. I am not satisfied that the work performance of the applicant was of any significance in the making of the decision to terminate his employment.
As to operational requirements of the business, there is no evidence to suggest that the refusal of the applicant to work overtime on one occasion, resulted in any affect on the production of the business on that occasion. Nor was there a pattern of refusal by the applicant in such a manner as to be inconsistent with the requirements of the business for regular short notice overtime. The refusal was brought about by the failure of the respondent to take adequate measures for staffing arrangements for the shift and this omission falls to the respondent.
I find that the respondent did not have valid reason for the termination of the applicant’s employment based upon either the applicant’s work performance, conduct or the operational requirements of the business.
As to the circumstances of the confrontation between the applicant and Mr D’Alberto, I have earlier indicated that I prefer the evidence of the applicant to that of Mr D’Alberto and Mr Milikins. I do not accept the evidence of Mr D’Alberto or Mr Milikins that the applicant attempted to or did physically engage the former in any way. I accept the evidence of the applicant that he was physically assaulted by Mr D’Alberto when he was thrown against the bread cooling racks and physically assisted out of the respondent’s premises. The incident alleged against the applicant was alleged to have occurred when the applicant sought to discuss the issue of the termination of his employment with Mr Milikins. Mr D’Alberto’s evidence was that “ we brushed bodies ”. He described this as:
“Well we were standing close to each other. He pressed against me. I took that at the heat of the moment with both of us being there as a gesture of a push. So I just got him by the arm and I said “ Well, look, leave the premises.” I said “ look just leave or we’ll call the police”. ”
No mention was made in his evidence in chief to calling out to his partner he’s assaulting me call the police. This is in contrast to the evidence given by Mr Milikins. In addition the evidence is that Mr Milikins heard such a call being made, but failed to respond to the call either by going to Mr D’Alberto’s assistance or by calling the police. The applicant was physically escorted from the premises by Mr D’Alberto. The failure of Mr Milikins to take any action in response to his express concerns as to Mr D’Alberto is another factor which leads me to conclude that the incident described by Mr D’Alberto did not occur in the manner described by him. I prefer the evidence of the applicant.
I turn now to consider the operation of s170DC in relation to this matter. I am satisfied that there was no opportunity accorded to the applicant to be heard prior to the termination of his employment by the respondent, nor at any time sufficiently proximate to the termination of the employment. The applicant was not given adequate opportunity to explain his difficulty with working the overtime and nor was any proper consideration made of the matters raised by him in this regard, when the respondent decided to terminate the employment. No consideration of alternatives to terminating the employment was made and this in my view is a relevant consideration both in the context of s170DC and s170DE(1) of the Act. The respondent acted without hearing from the applicant in deciding to terminate the applicant’s employment. I am satisfied that the respondent failed to comply with s170DC of the Act.
I turn now to consider the question of remedy. The applicant was employed for a period of four months. His employment was terminated on 11 April, 1996. The applicant found alternative employment to commence in September, 1996 and does not seek an Order for reinstatement. I am satisfied in view of the applicants attitude to his new employment, that an Order for reinstatement, would be impracticable. I make this finding also having regard to the relations between the parties. I turn now, having regard to s170EE(2) and s170EE(3) to consider whether in all of the circumstances an order for compensation ought be made and is so what the amount of such order ought be.
There are no matters against the applicant’s conduct which weigh in favour of an Order for compensation not being made. I am satisfied that the applicant ought be compensated for the loss of income suffered by him as a consequence of the termination of his employment.
I turn now to consider the quantum of that loss. The applicant ceased employment on 11 April, 1996. At the time of the termination I am satisfied that the applicant, whilst not having committed himself to any particular career or employment path, would but for the termination at the initiative of the respondent have remained in the employment. It is clear however having regard to his own uncertainty and his employment history, that some account in the quantum ought be made for the real possibility that the applicant may have elected to terminate the employment in the foreseeable future. I consider that in view of these matters it is reasonable to assume that the employment would have continued for at least a further 8 weeks.
The applicant did not obtain alternative paid employment prior to September, 1996 although I am satisfied that he pursued such employment. He enrolled himself in and participated in a work training program, involving unpaid training in restaurant premises for a number of weeks.
I am also satisfied that the applicant worked regular overtime and that this overtime was likely to continue. I am satisfied that the applicant worked on average 35.5 hours per week at ordinary time rates of pay. This resulted in a gross wage of $426.00 per week. The applicant is entitled to compensation representing the amount of remuneration lost in the 8 week period subsequent to the termination of his employment. This is an amount of $ 3408.00, gross. The applicant is responsible for accounting for any taxation liability which may exist.
I certify that this and the preceding six (6) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate : Paul Ferguson
Dated : 14 October 1996
APPEARANCES
Counsel appearing for the applicant : Mr. Isles
Solicitors for the applicant : McDonald & Charman
Counsel appearing for the respondent : Mr. N. Green
Solicitors for the respondent : Abbot Stillman & Wilson
Date of hearing : 13 September 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1696 of 1996
B E T W E E N:
Hakan MAPOLAR
Applicant
A N D
DONNA ROSA FOODS
Respondent
MINUTES OF ORDERS
14 October 1996 PARKINSON JR
THE COURT ORDERS THAT:
The respondent pay to the applicant compensation in the sum of $ 3408.00 pursuant to Subsection 170EE(3) of the Industrial Relations Act 1988.
Such payment be made within 21 days of today’s date.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
whether refusal to work overtime VALID REASON - whether requirement to work overtime REASONABLE pursuant to employment agreement - whether applicant given written WARNING regarding CONDUCT AND PERFORMANCE -
Industrial Relations Act 1988, ss170DC, 170DE(1), 170EA, 170EE(2), 170EE(3)
MAPOLAR v DONNA ROSA FOODS
VI 1696 of 1996
Before: PARKINSON JR
Place: MELBOURNE
Date: 14 October 1996
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