Nicolson v Heaven & Earth Gallery Pty Ltd

IN THE INDUSTRIAL ELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI 656/1994

B E T W E E N:  PAUL TERRENCE HUNT

AND:

STA TECH ENGINEERING PTY LTD (T/AS BOYD STEEL)

COURT:                   J.A. RYAN, Judicial Registrar
PLACE:  MELBOURNE
DATE:  23 September 1994

REASON FOR JUDGMENT

TERMINATION, APPLICATION AND RESPONSE

The respondent terminated the employment of the applicant as a Welder on 27 May 1994. The respondent claims shortage of work in a seasonally linked industry led to the termination. The applicant claims the termination resulted from a somewhat complex set of circumstances involving a disputed debt to a third party.

There was a debt. It is disputed. The industry does experience shortage of work. The facts require detailed analysis.

On 6 June 1994 the applicant sought the remedies of re-instatement and compensation alleging unlawful termination. In his supporting affidavit, the applicant expressed the belief that the termination was unlawful because he was provided with a reduced redundancy payment by what he described as the "fraudulent use of an expired and unclear agreement". He also described the agreement as "old and already honoured" and he alleged the real reason for his termination was not redundancy. He seemed to be suggesting that his termination was associated with an intention to obtain payment from him in respect of a disputed debt to a third party and he alleged the obtaining of such payment "was based on extreme prejudice".

On 27 June 1994 Alan Thomas Esmore, the major director and owner of the respondent company, filed an affidavit indicating that the applicant's employment was terminated solely for the reason of shortage of work. He denied that the termination was motivated by the reasons alleged by the applicant. He denied prejudice or fraud and stated that the monies deducted from the termination pay were pursuant to a written authority relating to a debt to another business for repairs to the applicant' s motor vehicle and were irrelevant to the application for remedy for alleged unlawful termination of employment.

On 15 August the applicant filed a second affidavit this time with the benefit of advice from his solicitors.

He reiterated his belief that the termination of his employment by the respondent was unfair because the sum of one thousand one hundred and eleven dollars ($1,111.00) was unlawfully deducted from his termination entitlements. He described this deduction as the amount of an account rendered to him some six months before the date of his dismissal by a third party associated with the employer and he described that amount and that account as the subject of a genuine dispute. Indeed, his evidence at the

trial and the evidence of his wife, Helen Hunt, demonstrate the amount and the account are still very much the subject of dispute.

The applicant in paragraph 3(b) in his second affidavit of 15 August, expressed his belief as follows:

"The true reason for my termination was not redundancy but the existence of the dispute over the said account, which is not…