Martensz v Swanson

[1996] IRCA 353

DECISION NO:  353/96 

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION  -  WHETHER TERMINATION AT INITIATIVE OF EMPLOYER

INDUSTRIAL RELATIONS ACT  1988 , s170EA.

SALLY MAARTENSZ  v GARY JAMES SWANSON

QI 96/1048

BEFORE:   BOULTON JR

PLACE:     ROCKHAMPTON    (HEARD IN BRISBANE)

DATE:       29 JULY 1996    

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )                  No. QI  96/1048
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  SALLY MAARTENSZ

Applicant

AND:  GARY JAMES SWANSON

Respondent

BEFORE:           BOULTON JR

PLACE:             ROCKHAMPTON (HEARD IN BRISBANE)

DATE:                29 JULY 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be dismissed.

NOTE:       Settlement and entry of orders are dealt with in Order 36 of the   Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )                  No. QI  96/1048
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  SALLY MAARTENSZ

Applicant

AND:  GARY JAMES SWANSON

Respondent

BEFORE:           BOULTON JR

PLACE:             ROCKHAMPTON   (HEARD IN BRISBANE)

DATE:                29 JULY 1996 

REASONS FOR JUDGMENT

The applicant is now aged 27, having been born on 5 September 1968.  She was employed as a cook by the respondent, the correct title of which is Newfeld Holdings Pty Ltd ACN 067 724 690, at its Stockmans Cafe, Nerang, from 2 December 1995.

The applicant suffered a fall at work on 11 January 1996, in which she injured her neck.  She was off work and  in receipt of workers' compensation.  She returned to work, under the auspices of the Workers’ Compensation Board, working restricted hours and duties.  Her workers' compensation payments continued until about mid-April 1996.

The contest at trial was whether or not the applicant's employment was terminated at the initiative of her employer.  The applicant's case was that after she had returned to work on reduced hours and duties, the principal of the respondent told her on 23 February 1996 that he did not want her there anymore.  She took this as meaning her employment had been terminated.

On the other hand, the respondent's case was that a Mr Swanson, a director of the respondent, spoke to the applicant on 23 February and told her not to return to work unless she was 100 per cent fit.  She was not being sacked but was no good to him in her present condition.  Mr Swanson swore he had no further contact with the applicant after this conversation, although he tried phoning her.

There is in evidence a letter dated 7 March 1996 (exhibit R4) which Mr Swanson wrote to the Workers’ Compensation Board concerning the applicant.  It supports his version of what was said by him to the applicant on 23 February.  In it, he wrote in effect that the applicant was not to recommence duties at Stockmans until she had a medical clearance to resume full-time/unrestricted duties.

The contents of this letter are entirely inconsistent with the notion that the respondent had terminated the applicant's employment almost two weeks earlier.  In the circumstances, I am not satisfied that the applicant's employment was terminated at the initiative of her employer.  I think the applicant was upset at her condition and the state she was in, and mistakenly thought her employment had been terminated.

I add for completeness that even had she been successful in her application, her claim could only have been very modest.  The respondent's business was sold, with completion of the sale occurring on 25 March 1996.  Few of the respondent's staff were retained in employment by the new owners.  The new owners did not take on a cook.  There is also the question of the applicant’s medical condition and fitness for work and the effect of these factors on any compensation she might have been awarded.

There was some hearsay evidence given without objection but which I have ignored in reaching my decision.

The application is dismissed.

I certify that this and the preceding one (1) page are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:          29 July 1996  

Appearing for the Applicant:    In person  

Appearing for the Respondent:   Mr Johnson of Johnsons, Solicitors  

Date of hearing:  15 July 1996

Date of judgment:  29 July 1996