Marina Linda Vidovich v Rocklea Nominees

[1995] IRCA 217

C A T C H W O R D S

INDUSTRIAL LAW - Termination of employment - claim of unlawful termination - whether procedural fairness - redundancy.

INDUSTRIAL RELATIONS ACT 1988, SS 170EA, 170DE, 170EDA

MARINA LINDA VIDOVICH v ROCKLEA NOMINEES PTY LTD - WI 95/1065

BEFORE:                 TOMLINSON JR

PLACE:  PERTH

DATE:  4 MAY 1995

IN THE INDUSTRIAL RELATIONS        )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/1065

BETWEEN:  MARINA LINDA VIDOVICH
  -          Applicant

AND  ROCKLEA NOMINEES PTY   LIMITED, TRADING AS
  MUFFIN BREAK MORLEY
  -          Respondent

MINUTE OF ORDERS

BEFORE:       TOMLINSON JR

PLACE:          PERTH

DATE:            4 MAY 1995

THE COURT ORDERS THAT:

1. The respondent pay compensation to the applicant in the sum of $1000, to be paid within 28 days of the date of this order.

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 95/1065

BETWEEN:  MARINA LINDA VIDOVICH
  -          Applicant

AND  ROCKLEA NOMINEES PTY   LIMITED, TRADING AS
  MUFFIN BREAK MORLEY
  -          Respondent

EX TEMPORE REASONS FOR DECISION

This is an application under the 1988 Industrial Relations Act brought by Marina Linda Vidovich, dated 22 January 1995. It is alleged the applicant worked as a sales counter person with the respondent, selling muffins. The applicant commenced work on 26 September 1994, and advised the court that after a certain discussion took place with the respondent on 7 January 1995, that she last worked on 14 January 1995. Prior to that she had received a letter on 10 January terminating her services together with one week's pay.

The applicant advised the court that she worked competently and from all accounts, it appears she was happy in her job.  The evidence before this court appears to be the business of the respondent never really got off the ground.  The applicant is pregnant and has indicated that if things had gone according to plan, she would have worked until the middle of April 1995.

The court heard evidence that the issue of the future employment of the applicant was first raised with the applicant on 7 January 1995.  At that time discussion apparently was in the form of questioning as to what suggestions the applicant could make as to an increase in sales, coupled with a suggestion the applicant might work reduced hours.

The court heard evidence from the respondent that the discussion that took place was slightly different and that the question of termination was fairly raised with the applicant at that time.  The respondent told the court the decision was taken to dismiss the applicant and to that end, the respondent stated she telephoned the Department of Industrial Relations to find out how termination procedures were to be put in place, in light of the falling profit situation.  It is unclear in my mind as to whether the applicant was aware that the contacting of the Department of Industrial Relations by the respondent was a prelude to her ultimate termination, and that that decision had in fact been taken.

What is clear to me is that that decision to terminate was taken without consultation or involvement with the applicant.  The respondent states he was not given advice that it was incumbent upon him to discuss all issues with the applicant concerning the termination or otherwise of her future employment.  In that regard, I find the employer was remiss.

It is my view, and it is the view of others in this court, that the industrial relations legislation does apply to redundancy situations.  It is clear to me the applicant was replaced by someone from the Midland store, who subsequently arrived to work at the Morley store for a considerable length of time after the applicant was terminated.  The respondent operated a small retail business and even though it was clear there was no direct involvement of the applicant in her future employment, it is likely that the applicant was aware of the weak financial situation of the respondent, and it was not improbable that she could have drawn her own conclusions.

However, I am in no way suggesting that that knowledge that she may have gained should in any way replace the direct responsibility of an employer to specifically involve employees about to be made redundant in all forms of consultation, offers of help and perhaps follow-up leads in allied trades.  I find the applicant to be a truthful person.  I also find that she is in somewhat of a difficult position, concerning her future work situation, due to the forthcoming birth of her baby and that at this time she is unable to further her employment situation.

In Beshara's case it was stated:

"It is not enough that there is a genuine redundancy.  The dismissal must be tested against substantive and procedural fairness.  It is insufficient for an employer to raise the aegis of a genuine redundancy as a wand against this Commission intervening where the circumstances in which the redundancy was imposed are otherwise harsh, unjust and unreasonable.  Obligations to consult, to provide notice and to apply objective selection criteria are facts in determining whether a dismissal is harsh or unjust or unreasonable."

I find that the employer has breached the Industrial Relations provisions and accordingly award to the applicant the sum of $1000 to be paid within 28 days of today's date.

I certify that this and the preceding two pages are a true copy of reasons for judgment of Judicial Registrar Tomlinson.

Associate:

Date:

Counsel for the Applicant:                 Mr G Wells
Solicitors for the Applicant:               Preuss Mohen

Counsel for the Respondent:  Mr T Holoday
Solicitors for the Respondent:           Lewis Blyth & Hooper

Date of Hearing:        4 May 1995
Date of Judgment:     4 May 1995