Matthew Malone v Forthcorp Pty Ltd

[1995] IRCA 481

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT -  CLAIM OF UNLAWFUL TERMINATION  -  LACK OF PROCEDURAL AND SUBSTANTIVE FAIRNESS  -  REMEDY

INDUSTRIAL RELATIONS ACT 1988 , ss170EA, 170DB, 170DC, 170DE

MATTHEW  MALONE  v  FORTHCORP  PTY  LTD                   QI95/1016

BEFORE:   BOULTON  JR

PLACE:     BRISBANE

DATE        11  MAY  1995

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )   No. QI  95/1016
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  MATTHEW  MALONE

Applicant

AND:  FORTHCORP  PTY  LTD

Respondent

MINUTE OF ORDERS

CORAM:            BOULTON JR

PLACE:             BRISBANE

DATE:                11  MAY  1995   

THE COURT ORDERS THAT:

1.The application be allowed.

2.The respondent pay to the applicant the sum of $6500 within 14 days     of today.

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 95/1016
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  MATTHEW  MALONE

Applicant

AND:  FORTHCORP  PTY  LTD

Respondent

BEFORE            BOULTON JR

PLACE:             BRISBANE

DATE:                11 MAY 1995     

REASONS FOR JUDGMENT

In this application, the applicant appeared unrepresented at trial.  The respondent did not appear at all.  I am, however, satisfied that the respondent is well aware of the trial date.  There is a letter on the court file dated 8 May 1995 from a Mr Hyde, who described himself as a director of the respondent in the Notice of Employer’s Appearance filed on 3 February 1995.  In that letter Mr Hyde acknowledges receipt of a letter dated 5 May 1995 from the court, in which the court advised the respondent of the trial date.  The letter from the court also warned the respondent that, should it fail to appear, the court may proceed with the hearing in its absence.
In the circumstances, I proceeded with the trial in the absence of the respondent.

The only evidence was from the applicant, now aged almost 21.  He impressed me as a forthright and honest witness.  I accept his evidence.

My findings are as follows:  the applicant took up employment with the respondent in November 1994 as a chef at the Canungra Hotel, Queensland.  Nothing untoward in his employment occurred until 14 January 1995 when Mr Hyde questioned him about the whereabouts of some food dockets.  For reasons which the applicant is unable to advance, Mr Hyde did not accept his explanation, calling him a liar.  Mr Hyde thereupon sacked him, for "gross misconduct".  The applicant received two days pay, about $160, in lieu of notice, by way of a cheque drawn on an account of the respondent.

At termination the applicant was earning about $525 gross per week.  He was unable to take up further work, until early February 1995, as his wife was in the last stages of labour.  In his new job he was paid between $200 and $300 gross per week on casual rates as a chef.  This position was a seasonal one, and the work finished in early April 1995.  At about the end of April 1995 the applicant took up further work, earning $243 gross per week.  He has enlisted in the Army and expects to commence his service in a few weeks time.  His enlistment pay will be about $375 gross per week.

Prior to employment with the respondent, the applicant had held a position as a chef for about 18 months.  He swore in evidence that he enjoyed his job with the respondent and had planned to stay on, had the incident of 14 January 1995 not occurred.  I proceed on this basis, in assessing compensation.

The respondent failed to accord both procedural and substantive fairness to the applicant in terminating his employment as it did.  It had no valid reason for the termination.  It also failed to give the applicant either the period of notice required by the Act, or compensation instead of notice.  The applicant's termination was unlawful.

The applicant did not, in the application he filed, seek reinstatement.  He persisted in that stance at trial.  Given his present circumstances, I find that reinstatement is impracticable. 

I assess appropriate compensation, for the breaches of ss 170DC and 170DE, and damages for the breach of section 170DB of the Act, to be the sum of $6500.

The orders I make are:

1. The application be allowed.

1. The respondent pay to the applicant the sum of $6500 within 14 days of today.

I certify that this and the preceding THREE ( 3 ) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  11  May  1995  

Appearing for the Applicant:           In person

Appearing for the Respondent:                 No appearance

Date of hearing:  11  May  1995

Date of judgment:  11  May  1995