Michael Bodo Hollmann v Metro Tune
[1996] IRCA 80
•12 March 1996
DECISION NO: 80/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - uncontested application
Industrial Relations Act 1988 ss.170EE(3) & 170EE(5)
MICHAEL BODO HOLLMANN - v - METRO TUNE
No. VI 3620 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 12 March 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3620 of 1995
B E T W E E N :
MICHAEL BODO HOLLMANN
Applicant
AND
METRO TUNE
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 12 March 1996
THE COURT ORDERS WITHIN 14 DAYS OF THE DATE OF THESE ORDERS THAT:
The respondent pay to the applicant damages in the sum of $425 gross pursuant to section 170EE(5) of the Industrial Relations Act 1988.
The respondent pay to the applicant compensation in the sum of $4,000 pursuant to section 170EE(3) of the Industrial Relations Act 1988.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3620 of 1995
B E T W E E N :
MICHAEL BODO HOLLMANN
Applicant
AND
METRO TUNE
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 12 March 1996
REASONS FOR JUDGMENT
Delivered ex tempore - revised from transcript
In this matter the applicant seeks compensation alleging that his employment by the respondent as a motor mechanic from 24 August 1994 was unlawfully terminated on or about 30 March 1995. The respondent did not file an appearance and did not contest this proceeding. The affidavit of service sworn by the applicant on 25 October 1995 and filed with the Court indicates that service has been effected in compliance with the rules of the Court.
The respondent's business involves the servicing and repair of motor vehicles in response to calls from customers. The applicant has 20 years experience as a motor mechanic. He was unemployed for some months in 1994 before being referred to the respondent and the proprietor of the respondent, Sam Modico, who employed him pursuant to a Jobstart agreement from 24 August 1994. The employment was full time for a 40 hour week at the rate of $425 gross per week, or $22,100 gross per annum.
When filing his application with the Court, the applicant also filed a statutory declaration made by him on 3 July 1995 in which he detailed the facts and circumstances leading up to the termination of his employment. The applicant adopted and relied upon the contents of the statutory declaration at hearing and it is not necessary for me to repeat all the matters set out in detail. Suffice to say that it is the applicant's uncontested allegation that Modico's wife, who is his business partner and who looked after the bookings and calls for the business, rang the applicant on or about 28 March 1995 and informed him that there was not enough work for him to do and that he had to finish up.
There were some subsequent discussions concerning payments of his entitlements and some offer of subcontracting work which was declined. It appears that on 30 March 1995 two cheques were paid to the applicant. One was for one week's net pay then owing of $350 and the other was for one week's pay in lieu of notice for the same sum. The respondent stopped payment on both cheques and subsequently the applicant recovered the unpaid wages but now seeks, from this Court, payment in lieu of notice pursuant to section 170DB of the Industrial Relations Act 1988 and compensation pursuant to section 170EE of the Act.
I am satisfied that the applicant's employment was terminated in contravention of the Act and the applicant is entitled to one week's damages in the sum of $425 gross. I am further satisfied that reinstatement is impracticable in all the circumstances. It appears that there was some argument between the men at about the time of termination, with the respondent alleging that the applicant had sworn at his wife. This is just one circumstance indicating to the Court that reinstatement would, in any event, be impracticable.
On the question of compensation, the applicant told the Court that he now works between 10 and 30 hours per week as a motor mechanic at a used car yard. This is casual employment and he has been so engaged since 30 March 1995 earning on average between $200 and $250 gross per week at the rate of $15 per hour. Bearing in mind the abovementioned matters, I have assessed compensation at $4,000.
MINUTES OF ORDERS
THE COURT ORDERS WITHIN 14 DAYS OF THE DATE OF THESE ORDERS THAT:
The respondent pay to the applicant damages in the sum of $425 gross pursuant to section 170EE(5) of the Industrial Relations Act 1988.
The respondent pay to the applicant compensation in the sum of $4,000 pursuant to section 170EE(3) of the Industrial Relations Act 1988.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate: ........ ........ ........ ........ ........ ........ ....
Dated: 19 March 1996
Applicant in person.
No appearance for the Respondent.
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