O'Beirne v The Mobile Pages Pty Limited
[1995] IRCA 112
•22 Mar 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2539 of 1994
BETWEEN:
O’BEIRNE
Applicant
AND
THE MOBILE PAGES PTY LIMITED
Respondent
REASONS FOR JUDGMENT (EX TEMPORE)
(Revised from Draft Transcript)
22 March 1995 Judicial Registrar Millane
The Applicant appears in person and seeks compensation pursuant to Division 3 Part VIA of the Industrial Relations Act 1988 (“the Act”). The Applicant alleges that on 24 November 1994 her employment as a sales representative with the Respondent was unlawfully terminated. On 14 December 1994 the Respondent, through its solicitor, Mahoney Galvin Rylah, filed a notice of employer's appearance. According to the Applicant, the Respondent also attended a conciliation conference on 16 February 1995, at which time the parties were unable to resolve this dispute.
On 1 March 1995 notice of a directions hearing to be held on 21 March 1995 was given to the Respondent’s solicitors. In the interim the Respondent's solicitors, by a letter dated 10 March 1995, informed the court that they no longer represented the Respondent. The same information was transmitted to the Applicant, however, at no stage did the Respondent's solicitors file and serve any notice of change in accordance with Order 45 of the Industrial Relations Act Rules 1994. Accordingly, the Respondent's solicitors for the purposes of this proceeding are the solicitors on the record and all notices are to be directed to them.
On the return date of the directions hearing the Respondent did not appear and this matter was fixed for hearing on 22 March 1995. On 21 March 1995 and 22 March 1995 the court's listing officer contacted the Respondent's solicitors notifying them of the hearing date and the requirements of Order 45 of the Industrial Relations Court Rules 1994. Unsuccessful attempts were also made by the court to telephone the Respondent on the number provided in the notice of employer's appearance. The Respondent has not appeared to defend this proceeding and, in the circumstances, I am satisfied that it has been duly notified of the date for hearing through its legal representatives.
The Applicant was offered and accepted permanent employment on 14 November 1994 at the rate of $600.00 gross per week, $150.00 of which was a car allowance.
On 24 November 1994 at 7:45am, she, along with other employees, was asked to attend a meeting at which they were told that sales needed to improve and that the Respondent was moving premises. The Applicant returned to her sales duties and at 9:25am she was called to a further meeting at which she was informed that her performance was unsatisfactory and she was then told to leave her employment. The Applicant was given a cheque for a net sum of $467.00. The Applicant's evidence is that this cheque was not accompanied by any explanatory information and was deficient in as much as she was not paid for three days she had worked as well as the relevant portion of the car allowance.
The Applicant tendered to the court a letter received by her from the Respondent's solicitors dated 16 December 1994 (exhibit A1) in which it is conceded that the Applicant was owed the abovementioned sums by the Respondent. The letter also referred to a period of probation which was denied by the Applicant who also points out that at no stage was she counselled or warned or given the opportunity to respond to the allegations of poor performance.
I am satisfied on the abovementioned evidence that the termination of the Applicant's employment breached section 170DB, section 170DC and section 170DE of the Act. The failure to give notice or pay one week's pay in lieu of notice entitles the Applicant to an order for damages in the sum of $600.00. Otherwise she seeks compensation in circumstances where she was not an award employee and has remained unemployed for five months despite attempts to obtain employment elsewhere. She also asked this court to exercise its accrued jurisdiction and order payment of the three day's salary owing in the sum of $360.00.
The Applicant has received and continues to receive sole parent benefits since the date of termination at the rate of $326.00 per fortnight. I have assessed compensation payable at $8,000.00.
The orders the Court makes are:
That in terminating the employment of the Applicant the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988;
That the Respondent pay the Applicant compensation in the sum of $8000.00;
That the Respondent pay the Applicant the sum of $600.00 in damages pursuant to section 170EE(5) of the Act;
That the Respondent pay the Applicant arrears of wages in the sum of $360.00;
And the Court directs:
The Registrar to enter these orders and to forward sealed copies to the Applicant and the Respondent respectively.
I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of Judicial Registrar Millane as recorded in the draft transcript and revised by the Judicial Registrar.
Associate:
Dated: 22 March 1995
Solicitors for the Applicant:
Counsel for the Applicant:Solicitor for the Respondent:
Counsel for the Respondent:Dates of hearing:
22 March 1995
Date of Judgment:
22 March 1995
CATCHWORDS
INDUSTRIAL LAW - Unlawful termination of employment - solicitors failure to file and serve Notice of Change under Order 45 of the Industrial Relations Court Rules 1994 and effect same.
Industrial Relations Act 1988, ss.170DB, 170DC and 170DE.
Industrial Relations Court Rules 1994, Order 45.
O’BEIRNE -v- THE MOBILE PAGES PTY LIMITED
NO. VI 2539 of 1994
Before: MILLANE JR
Place: MELBOURNE
Date: 22 MARCH 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2539 of 1994
BETWEEN:
O’BEIRNE
Applicant
AND
THE MOBILE PAGES PTY LIMITED
Respondent
MINUTES OF ORDER
22 March 1995 Judicial Registrar Millane
THE COURT ORDERS:
That in terminating the employment of the Applicant the Respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988;
That the Respondent pay the Applicant compensation in the sum of $8000.00;
That the Respondent pay the Applicant the sum of $600.00 in damages pursuant to section 170EE(5) of the Act;
That the Respondent pay the Applicant arrears of wages in the sum of $360.00;
AND THE COURT DIRECTS:
The Registrar to enter these orders and to forward sealed copies to the Applicant and the Respondent respectively.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
0
0
0