Nicolaou and Camelleri

[1994] IRCA 14

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 548 of 1994
VICTORIA DISTRICT REGISTRY

B E T W E E N:

NICOLAOU
Applicant

A N D

CAMELLERI
Respondent

Reasons for Judgment

(Delivered Ex Tempore - Revised from draft transcript)

PARKINSON JR

2 August 1994

This is my decision in the matter VI 548 of 1994. The application is made pursuant to section 170EA of the Industrial Relations Act (1988) ('the Act'). The applicant claims:

(a) an order declaring that the termination of the employee's employment by the employer contravened division 3 of Part VIA of the Industrial Relations Act (1988);

(b) an order that the respondent pay compensation to the employee; and

(c) an order that the respondent pay to the employee one week's pay in lieu of      notice.

In these proceedings the applicant and the respondent appeared in person.  Evidence was given by both the applicant and the respondent as to the circumstances surrounding the employment of the applicant and the termination of the applicant's employment.  I have considered the operation of section 170CC of the act and regulations 30B and I am satisfied that Mr Nicolaou, the applicant, was employed on a permanent basis and not upon any contract of a fixed term nature.  I am further satisfied that no probationary or trial period was discussed between the parties at the time of entering into the employment.

The applicant alleges that the termination of his employment was unlawful because it contravened section 170DC and section 170DE of the Act. Section 170DC  provides that an employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:
           (a) the employee is given the opportunity to defend himself against the      allegations made, or
           (b) the employer could not reasonably be expected to give the employee the        opportunity.

Section 170DE subsection (1) provides that an employer must not terminate an employee's employment unless there is a valid reason or valid reasons connected with the employee's capacity or conduct or based upon operational requirements of the undertaking, establishment and service. Section 170DE subsection (2) provides that a reason will not be valid if, having regard to the employee's capacity and conduct and the operational requirements the termination is harsh, unjust and unreasonable.

In these proceedings, the court is required to decide whether the employer had a valid reason for the termination of the employment in the terms of section 170DE and whether the termination, albeit for a reason, was harsh, unjust or unreasonable.  The words "harsh, unjust and unreasonable" are words of every day language and should be understood as such and in my view the question is to be determined having regard to the circumstances surrounding the termination and the particular circumstances of the parties to the proceedings.