Michael Bernie Dieter Korent and Yellow Bins Pty Limited

[1995] IRCA 590

Industrial Relations Court
of Australia
New South Wales District Registry  NI 95/1939

Between:                   Michael Bernie Dieter KORENT
  Applicant

And:  Yellow Bins Pty Limited
  Respondent

Place:  Sydney
Date:  9 October 1995
Before:  Tomlinson JR

Reasons for decision delivered Ex-Tempore

In this matter Mr Moore appears on behalf of the applicant and Mr Creighton on behalf of the respondent.  The respondent was not present in person.
Mr Creighton finds himself in the extraordinarily difficult position of having very little by way of formal instructions in the matter and so is unable to assist the court.  Accordingly much of what the applicant stated on oath remains uncontested.
The applicant in his evidence in chief stated he commenced employment as a result of a Jobstart agreement on 14 November 1994.  The applicant was employed as a driver by the respondent and during the course of his employment there were no complaints as to the manner in which the applicant performed his duties.

The applicant stated he was dismissed suddenly on 5 April 1995 after the proprietor of the respondent told the applicant that he could not afford to pay him.  Apparently at that discussion the applicant was told he was too slow and that there were “hold ups” during the course of the employment.

The applicant, in response to a question from Mr Moore, stated that he disagreed with these allegations but to my mind it appears that the respondent had already determined that Mr Korent would be dismissed.  There was some evidence before the court that a Mr Woods was employed by the respondent shortly before the termination of the applicant.

There was no doubt in the mind of the applicant that he was permanent, that he was never employed as a casual employee, that he received no casual loadings in forfeiture of his permanent status rights, that he served a probationary period.  That at the expiration of that probationary period to the mind of the applicant he became a permanent employee.

As a driver the applicant advised the court that he was earning $433 a week.  That as a result of the termination he was out of work for 17 weeks and 2 days.  Mr Moore quantified that loss as $7537.68.  The applicant told the court that he currently is employed as a cleaner with the Figtree Private Hospital where he works 30 hours a week.  That his salary is considerably less but it was refreshing to see an honest answer that he was happy in his work and that he had a job.  That is the sort of attitude to be applauded in this court.

To my mind the termination of the applicant, Mr Korent, was harsh and unjust and there has been no valid reason demonstrated to the court for that dismissal. It is my ruling that this termination has infringed the Industrial Relations Act.

Having heard the applicant under section 170EE(2) reinstatement is impractical as the applicant has indicated that he is currently employed and I hope he stays so.  Accordingly, it is my judgment that section 170DC was breached.  Secondly, there was no valid reason so 170DE was breached, and thirdly, I agree with the submission of Mr Moore of counsel that this termination was unreasonable and I find that section 170EE subsection (2) was breached.

Accordingly, under remedies the court may grant I order the respondent within 21 days of today's date to pay to the solicitors of the applicant the sum of $7537.68 representing the earnings lost.  I additionally order a further sum of $433.20 payable under section 170EE subsection (5) to be paid, making a total of $7970.88 payable within 21 days of the date of this hearing.

I certify that this and the preceding two (2) pages are a true and accurate record of the reasons for decision of Judicial Registrar Tomlinson delivered ex-tempore.

Associate:

Date:  3 November 1995

Appearances

For the Applicant

Counsel:  Mr R.Moore
Instructed by:               Mr McDonald of McGuire & McIlvaney

For the Respondent

Counsel:  Mr G.Creighton
Instructed by:               of Stewart Cuddy & Mockler