Pax Damon Leach v Bruce Duncan Russell and Associates

[1995] IRCA 367

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - articled law clerk - whether employee - whether ADEQUATE ALTERNATIVE REMEDY - whether PROCEDURAL FAIRNESS - whether VALID REASON on basis of CONDUCT AND PERFORMANCE - REMEDY

INDUSTRIAL RELATIONS ACT 1988, Ss 170EA, 170DC, 170DE, 170EE
INDUSTRIAL RELATIONS REGULATIONS, Reg. 30B
Legal Practitioners' Act 1893 (Western Australia), S 14C
Minimum Conditions of Employment Act 1993 (Western Australia)

Liddell v Lembke (1994) 127 ALR 342

­Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233

PAX DAMON LEACH  - v -  BRUCE DUNCAN RUSSELL & ASSOCIATES - WI 94/1314

BEFORE:        BOON JR

PLACE:           PERTH

DATE:             4 AUGUST 1995

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 94/1314

BETWEEN:  PAX DAMON LEACH
   -    Applicant

AND:  BRUCE DUNCAN RUSSELL &
  ASSOCIATES
  -    Respondent

BEFORE:                 BOON JR

PLACE:  PERTH

DATE:  4 AUGUST 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. That the Respondent pay to the Applicant the sum of $5200 by way of compensation for the unlawful termination of his employment, such sum to be paid within 21 days of the date of this order.

NOTE:           Settlement and entry of Orders dealt with by Order 36 of the   Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 94/1314

BETWEEN:  PAX DAMON LEACH
   -    Applicant

AND:  BRUCE DUNCAN RUSSELL &
  ASSOCIATES
  -    Respondent

BEFORE:                 BOON JR

PLACE:  PERTH

DATE:  4 AUGUST 1995

REASONS FOR JUDGMENT

This is an application under Section 170EA of the Industrial Relations Act seeking an order declaring the termination of the Applicant's employment by the Respondent to have contravened Division 3 of Part VIA of the Act, and an order that the Respondent pay compensation to the Applicant.

Prior to the hearing of this substantive application, there was a hearing on a Notice of  Motion seeking an order that the application be dismissed.  That will be dealt with briefly below.

At the hearing of the substantive application, the Applicant alleged that the provisions of the Industrial Relations Act had been contravened in a number of ways. Firstly, it was said that the Applicant was given no opportunity to respond to allegations relating to his capacity or conduct within the meaning of Section 170DC of the Act. Secondly, the Applicant said that there was no valid reason for the termination and that the termination was harsh, unjust or unreasonable within the meaning of Section 170DE of the Act. The Respondent says that the Applicant was given every opportunity to respond to allegations made against him, and further says that there were valid reasons for the termination.

THE NOTICE OF MOTION SEEKING THE DISMISSAL OF THE APPLICATION

Before the substantive hearing in this matter, this Court heard an application by the Respondent on Notice of Motion for an order that the substantive application be dismissed.  There were three main grounds on which the application was made, although these were not spelt out specifically in the Notice of Motion and were to be gleaned from the supporting affidavit.

Firstly, it was said that there was available to the Applicant an adequate alternative remedy in respect of the termination under existing State legislation that satisfied the requirements of the termination of employment convention, namely the Legal Practitioners' Act 1893 (Western Australia).  It was argued that Section 14C of that Act allows for reinstatement.  That section reads as follows: 

"14C(1)Upon the application of an articled clerk, or the practitioner to whom a clerk is articled, the Board may cancel the articles of such clerk upon such terms as the Board may see fit.

(2)There shall be a right of appeal to the Full Court of Western Australia by any person aggrieved by a decision of the Board under this section."

In Liddell v Lembke (1994) 127 ALR 342, the Full Court said that the Court has to be satisfied that there was available to the employee an adequate remedy compared with that available under Section 170EE, that the alternative remedy was available under existing machinery and that the existing machinery satisfied the requirements of the termination of employment convention. It is clear that the provisions of Section 14C of the Legal Practitioners' Act, which gives the Legal Practice Board a very wide discretion, does not in any way come close to satisfying the requirements of the convention. Accordingly, I ruled that Section 14C did not provide an adequate alternative remedy to the Applicant.

Secondly, it was argued that the Applicant was never employed by the Respondent but was retained by way of apprenticeship, and that this Court had no jurisdiction to hear the application. However, the Applicant was paid a wage of $200 per week in return for his services and the Respondent did not point to anything in the Industrial Relations Act or cite any authorities in support of his contention that an articled clerk is not an employee. I found that the Applicant was an employee and that this Court had jurisdiction to hear the application.

Thirdly, it was said by the Respondent that the Applicant was only employed, if at all, on a temporary or probationary basis and was dismissed during the probationary term as being unsuitable. The Respondent argued that it was an implied term of the contract of employment that the Applicant was to be employed under a period of probation. There was, however, even on the Respondent's argument no specified period for which the probation period was to run. Further, there was no mention of probation in the written articles agreement. For the Applicant to be excluded from the unlawful termination provisions of the Industrial Relations Act pursuant to Regulation 30B of the Industrial Relations Regulations, the duration of the probationary period must be determined in advance of the commencement of employment. The Respondent eventually withdrew that part of his application on Notice of Motion.

At the conclusion of the argument on all three of the submissions, I ruled that this Court had jurisdiction to hear the substantive application.  I then proceeded to hear the substantive application.

BACKGROUND

Bruce Russell, is a solicitor and is the principal of the firm of solicitors Bruce Duncan Russell & Associates, the Respondent in this matter.  Kelvin Bartholomeusz is the practice manager for that firm.  Mr Bartholomeusz is not a lawyer.  In November 1994, the Applicant, Pax Leach, was a final year law student.  Mr Bartholomeusz obtained Mr Leach's name from a list of people seeking articles.  The list was prepared by Ms Geraldine Byrne of the Law Society of Western Australia.  In early November 1994, Mr Leach attended two interviews at Bruce Duncan Russell & Associates for the position of articled clerk.  At the end of the second interview, no agreement had been reached as to the employment of the Applicant as an articled clerk.  Mr Leach offered to work for the firm for a few days each week while he was still at university to improve his prospects of selection with either the Respondent's firm or another firm.  It is common ground that it was difficult to obtain articles at around this time.  It was agreed that Mr Leach would work at the Respondent's firm two days a week while he completed his studies.  Mr Leach accepted a weekly wage of $200 pro rata for the work he carried out as a law clerk.  When Mr Leach finished his university exams, he agreed to continue working for Bruce Duncan Russell & Associates as a law clerk on a temporary basis.  At all times the Respondent was aware that Mr Leach had planned a holiday to the United States in December and January.  Mr Leach worked for the Respondent for three weeks full time before leaving for his holiday.

It is agreed that Mr Leach was spoken to several times about his conduct and performance during the period he worked for the Respondent as a law clerk prior to his overseas holiday.  The Respondent raised a number of allegations about the Applicant's conduct and performance. 

Firstly, it is said that Mr Leach's handling of a settlement relating to Tinga's Lunch Bar resulted in the loss to the Respondent of all referrals of settlements from the Willetton office of Roy Weston, real estate agents.  Mr Leach gave evidence that he was asked to deal with the settlement and found that there were difficulties with the settlement statement.  He noticed that in the contract for sale which had to be stamped there was a question mark under the item "stock in trade".  He did not know what to do about it, so he spoke to Mr Hans Meyer who was a business agent at Roy Weston Willetton, who was organising the real estate side of the settlement.  Mr Meyer told him to fill in the amount of $500 for stock in trade.  The clients involved became upset because as a result of this the purchase price on the agreement was $500 more than the agreed price.

Secondly, there was a problem when Mr Leach contacted the Department for Community Development on his own volition and requested that Bruce Duncan Russell & Associates be removed from the referral list for adoptions referrals.  Bruce Duncan Russell was on the top of the referral list and consequently received the bulk of the adoptions work from the Department.  Mr Leach said that when he first started at Bruce Duncan Russell the firm was short staffed because the two practitioners who had been involved in family law had recently left the firm.  Mr Leach had been told a number of times by his employers that Bruce Duncan Russell was a commercial firm and he "figured that they wouldn't really want to constantly be getting referred with family law work if they no longer had a family lawyer in the practice and wanted to basically be a commercial firm".  Mr Leach did not realise that the adoptions work was separate and valued by the firm.  He told Mr Russell straight away and realised that it was "probably a pretty dumb thing to do at the time".  The matter was put right immediately and Bruce Duncan Russell is still at the top of the referral list.

Thirdly, it was alleged that Mr Leach lost an original birth certificate from a client's adoption file.  Mr Leach disputes that he lost the certificate.  It was the first file he was given in November 1994 and it appears that he was the only one from the firm who handled that particular file.  The only time Mr Leach saw the original birth certificate was when he first started work in November.  Mr Leach concedes that he may have lost the birth certificate but it is far from clear what actually happened.

The incidents complained of above appear to have occurred in the period before Mr Leach left for America.  Mr Leach was counselled by Mr Bartholomeusz in relation to those incidents.  It was also made clear by Mr Bartholomeusz to Mr Leach that the firm was not happy with the way Mr Leach performed commercial work.  Mr Bartholomeusz said that, on the one hand, Mr Leach fitted in well with the firm in that he was able to get on with the staff.  On the other hand, there were always problems with the settlements handled by Mr Leach.  Further, according to Mr Bartholomeusz, Mr Leach did not do his work on time in that his letters would not go out to clients promptly and he was not filing documents immediately as required.  Mr Leach did not admit these allegations. In any event, these matters were discussed in that initial period in late November.  It appears that Mr Bartholomeusz also told Mr Leach not to act on his own without instructions from his employers.

Notwithstanding these problems, Mr Russell agreed to keep Mr Leach on as an articled clerk.  An articles agreement was signed by Mr Russell and Mr Leach on 12 December 1994, shortly before Mr Leach left for the United States.  Under the written agreement, Mr Russell agreed to take Mr Leach on as an articled clerk for one year from the date of registration.  The laws governing the registration of articles are set out in the Western Australian Legal Practitioners' Act and the rules made under it.  It was left to Mr Leach to arrange the documentation necessary to have the articles registered, although the Respondent agreed that its outside clerk would physically present the documents for registration.  Mr Leach arranged the documentation immediately before he left for the United States.  The articles were not able to be registered in December 1994 as some documentation was missing.  The articles were not registered until 7 February 1995, after Mr Leach's return from his overseas holiday.

In relation to the agreement that Mr Russell would take Mr Leach on as his articled clerk, Mr Leach said that his understanding was that Mr Russell was saying that if he was able to find articles elsewhere, at a better offer, he should take it.  This was because the firm was only able to offer articles to Mr Leach at a wage of $200 per week.  Mr Bartholomeusz's evidence was that he first discussed the matter with Mr Russell and recommended that the Respondent did not keep Mr Leach on for his articles.  Mr Russell was in a good mood and told Mr Bartholomeusz to give Mr Leach "one more chance to show if he can do something" and to get Mr Leach to have his articles forms lodged so that the articles period could begin to run from December 1994.  Mr Bartholomeusz's evidence was that he went to Mr Leach and said that Mr Russell would agree to sign his articles documents.  He told Mr Leach that they were not happy with him and that he would have to lift his game enormously when he came back after his holiday.  He said that the firm was only prepared to offer him $200 a week as it was not getting sufficient billable work out of Mr Leach.  They wanted to help him out with articles but if he wanted to get articles with another firm they would be very happy to transfer them.

Mr Russell's evidence was that he was sorry for Mr Leach.  He knew that articled clerkships were very difficult to come by.  Mr Leach was a nice young man and Mr Russell wanted to assist him.  Mr Russell indicated to Mr Bartholomeusz that he was to offer Mr Leach conditional employment in that Mr Russell would sign the articles on the basis that Mr Leach look for alternative employment, and in the meantime the firm would pay him $200 a week.  Although Mr Russell may well have had in his mind that Mr Leach's employment was conditional and that he was to seek alternative employment, I do not, on the evidence on the witnesses, find that this was clearly communicated to Mr Leach.  It was, in any event, contrary to the written agreement signed by Mr Russell.

It was to Mr Russell's credit that he, as principal of a small firm, sought to assist Mr Leach by offering him articles in what was a difficult job market.  I accept that he did this with good intentions.  The effect of that agreement, however, was to place upon Mr Russell certain obligations which are probably more onerous that those associated with most other employment relationships.  Those obligations are set out in the State legislation referred to and are not within this Court's jurisdiction.  They do, however, form part of the overall circumstances surrounding the employment relationship and that context may be relevant to whether the termination was harsh, unjust or unreasonable.

The next allegation raised by the Respondent is that Mr Leach was late returning from the United States and that he failed to communicate this to the Respondent.  Although I accept that this would be annoying and inconvenient, it appears even from Mr Bartholomeusz's evidence that Mr Leach had been vague about his return date.  Mr Bartholomeusz said in his evidence that he should have asked Mr Leach to pin down an exact day for his return.  As it happened, the firm expected Mr Leach to return in mid January but he did not return to Australia until late January.  This caused the firm some inconvenience but as the circumstances surrounding this allegation are not clear I cannot ascribe any great weight to it.

The next, and most significant, allegation against Mr Leach concerned an incident in which he altered the amount on a client's cheque.  He was asked by the Respondent to attend to the stamping of a transfer.  This transfer related to a settlement being handled by Mr Russell.  It was not Mr Leach's file but he had done some minor work on it.  When Mr Leach went to the Stamp Office it was found that the stamp duty had been incorrectly calculated by the locum solicitor who had dealt with that part of the file.  The client's cheque was therefore made out in a higher amount than it should have been.  Mr Leach spoke to the clerk at the desk who advised him to alter the client's cheque to the lower amount.  Mr Leach was worried that if he took the cheque back to the office to have it returned to the client the documents would not be stamped in time and the client would incur penalty interest.  He altered the cheque on the advice of the clerk but did not initial it.  He asked the clerk for a photocopy because he was unsure about what he was doing.  He went back to the office and immediately reported the incident to Mr Russell.  Mr Russell did not complain about it and said he would let the bank and the client know about it.  Nothing was said about it until Mr Russell asked Mr Bartholomeusz to speak to Mr Leach about it.

Mr Russell gave evidence that he was dismayed to say the least by the incident.  He did not discuss the matter with Mr Leach because his initial reaction was to fix the problem immediately with the bank and the client.  He then asked Mr Bartholomeusz to speak to Mr Leach about it.

Mr Leach's actions in relation to the cheque were extremely unwise.  He should have sought the advice of Mr Russell when faced with the problem.  He did, however, take the matter up with Mr Russell immediately upon his return and the matter was taken care of by Mr Russell.

The next matter complained of was when Mr Leach arranged for a client who was not a "valued client" to park in one of the firm's car parking bays which was reserved for "valued clients" only.  Mr Leach's evidence was that he had to take lengthy instructions from the client in question.  This client was very disorganised and had to keep running to his car to put more money in the parking meter.  Although Mr Leach was aware of the firm's policy relating to the use of the car parking bay, he told the client that he would ask Mr Russell whether the client could use the bay.  The client followed Mr Leach into Mr Russell's office uninvited, and Mr Russell was put in the embarrassing position of being unable to refuse.  Another "valued client" then found the bay was occupied and was upset.

Several other allegations against Mr Leach were raised by the Respondent in his Statement of Facts, but these were minor and they were not seriously pursued.  These complaints related to Mr Leach taking smoking breaks and his alleged "sulking", but I have not taken these into account.

THE TERMINATION

Mr Leach gave evidence that once he commenced articles, no problems were apparent until about two weeks after he started.  The cheque incident happened in his second week of articles.  Mr Bartholomeusz came to him and asked if he was looking for other work.  Mr Leach replied "No", as it was his understanding that he should not actively be looking for other work, but that if a better offer came along he should take it.  About a week later Mr Bartholomeusz again discussed with Mr Leach the fact that he should be looking for other work.  Mr Leach had in the meantime contacted Ms Byrne at the Law Society and had asked to be put back on the list of people seeking articles.  A few days after his second conversation with Mr Bartholomeusz and after the car parking incident, he was approached by Mr Bartholomeusz who said "Look, I've been asked by Mr Russell to let you go as we no longer need your services". 

Mr Russell in his evidence said that he did not terminate Mr Leach because of the cheque incident, but that it was because of the accumulation of all the incidents.

It was clear from the evidence of both Mr Bartholomeusz and Mr Russell that they regarded the car parking incident as a major infringement.  In Mr Russell's words, he was "furious about it all day" and it seems to have been the straw that broke the camel's back.

Since the date of termination, an application was submitted to the Legal Practice Board for the cancellation of the articles.  That is a matter entirely for the Board.  For the purposes of the matters to be considered by this Court, the employment relationship ended when Mr Bartholomeusz told Mr Leach on 24 February 1995 that the firm no longer required his services.

DID THE TERMINATION BREACH SECTION 170DC?

Mr Leach was counselled a number of times in relation to his performance when he was employed as a law clerk by the Respondent.  Notwithstanding the problems experienced by the Respondent, Mr Russell was prepared to employ the Applicant as an articled clerk upon his return from the United States.  Mr Russell made it clear that Mr Leach's employment was terminated as a result of the accumulation of incidents.  He was worried about a possible professional negligence action against the firm.

This Court must decide whether Mr Leach had an opportunity to respond to allegations made against him.  The evidence of Mr Leach is that Mr Russell himself never counselled him at all, and that all of his dealings were with Mr Bartholomeusz.  The evidence of both Mr Russell and Mr Bartholomeusz supports this.  According to the dicta of Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 the requirements of Section 170DC are not to be taken lightly. His Honour said at page 243

"The principle is, I believe, well understood in the community.  It represents part of what Australians call 'a fair go'.  In the context of Section 170DC, it is not to be treated lightly.  The employee is to be given the opportunity to defend himself or herself 'against the allegations made'; that is, the particular allegations of misconduct or poor performance that are putting the employee's job at risk.  Section 170DC(a) is not satisfied by a mere exhortation to improve".

The transcript shows that Mr Leach's evidence in relation to this question is as follows:

"Well, I put it to you that Mr Bartholomeusz had in fact again had numerous conversations and discussions with you - - -?---He had - - -

- - - that work was not ---?---He had three conversations, including the one where he sacked me, after I got back from America.

So after you got back from America there was - - -?---Within that 3-week period I'd had three conversations including the one on the very last day when he said, "Look, we're going to have to let you go".

So there were three conversations about your work standard, is that correct?
---Yes, after I got back, yes.

Now, during any of those conversations that Mr Bartholomeusz had with you did he outline what the problems were or did he say - did he give you specifics of what the problems were that he was having?---Sometimes, yeah.  Yes, he did.  He gave me a few examples.

He gave you examples?---Yes.

Did he give you the opportunity to answer those complaints?---Yes.  I was saying to him, sell, look - well, we were arguing actually.

But he always gave you the opportunity to answer those complaints, is that correct?---Yes, I discussed them with him but he didn't accept my answers.

Okay, that is fine.  It is correct to say he gave you the opportunity to answer the complaints he had against you?---Well, I insisted on trying to explain myself.  He didn't say have you got any comments or anything.

But he gave you the opportunity to answer the complaints?---Well, in that he listened to what I said, yes."

The transcript shows that Mr Bartholomeusz's evidence on this question is as follows:

"When Mr Leach came back from holidays and commenced working were there any further problems that you discussed with him?---Yes, possibly I would've sat down and counselled him on another two or three occasions prior to going in and saying to him, you know, "We don't require your services any longer."

Okay.  Those occasions that you spoke to him about those problems, were they similar to the problems that he had prior to going off on this holiday?---No, they were worse.  I considered them worse because the one that annoyed me the most was when he allowed a client to go into the car park after being given specific instructions by Mr Russell that - - -

Okay, that is evidence that Mr Russell can give?--- Sorry.

Were you present at that time?---Present as in.

About the car park?---Yes, in the office?

Yes?---Yes.

Okay.  Did you discuss the matter with Mr Leach at all?---Yes, I said I was very unhappy about it because you just don't give - the car parks cost a lot of money.  We had it waiting for a commercial client.  The commercial client got extremely upset because the car park was taken.

Okay.  Were there any other incidents that caused problems while Mr Leach was working after he came back from his holiday?--- There was the problems with settlements. I don't think - I can honestly say there was one settlement that went through properly.  Every one had a problem with it to the point where I had to take all the settlement files off him and give them to a second year law student who then completed them.  Basically all of them.  I walked into his office one day and I said, 'Mr Leach, I just can't let you have settlements any more, I'm taking them all away from you'.

Did you give Mr Leach the opportunity to answer any of these complaints and attempt to fix these complaints?---On that occasion, no, because I had done on three or four other occasions with the settlement files.  I felt at that stage it had reached the point where it had gone too far."

I find that although Mr Leach was made aware of problems with his performance, it was never specifically put to him, once he had started articles, that his job was on the line if he did not improve. The evidence as to the extent of counselling is somewhat vague. It is not clear whether specific complaints or allegations were ever put to Mr Leach. He was spoken to about his performance, but he was not seriously given an opportunity to respond to the allegations in a manner in which his employer would take his responses into consideration. I find on the evidence that Mr Leach was not given "a fair go" as required by Section 170DC.

WAS THERE A BREACH OF SECTION 170DE?

As I have found that there was a breach of Section 170DC, it is not strictly necessary to examine whether or not the provisions of Section 170DE have been complied with. As I have said above, Mr Leach's employment as an articled clerk must be seen in the context of the obligations that go with the particular relationship. Whilst I sympathise with Mr Russell, he agreed to take on Mr Leach as his articled clerk knowing that there had been problems with his performance in the past. It is unreasonable for him to now seek to rely on those incidents which occurred before Mr Leach started his articles as a justification for terminating his employment.

Only two specific incidents relating to Mr Leach's conduct can be pointed to in relation to the articled clerkship.  There was also some mention of Mr Leach not being able to do settlements satisfactorily but it appeared from the evidence that this was not relied upon greatly by the Respondent.  It also appeared to me from the evidence that Mr Leach had not been given sufficient instruction as to how to do the settlements properly.  Mr Russell's main concern was Mr Leach's refusal to follow instructions and his tendency to "go off on tangents of his own". 

The first main incident was the cheque incident, and I do not agree with Counsel for the Applicant that this incident was trivial.  It was a surprising way for a law graduate to behave.  It was to his credit, however, that he immediately reported the matter to Mr Russell.  It was also surprising, in my view, that Mr Russell did not take the matter up with Mr Leach himself because his obligation as a principal to an articled clerk was to instruct him properly. 

The second incident was that relating to the car parking bay.  I do not find that this incident is so serious as to warrant termination, despite the emphasis placed on it by Mr Russell and Mr Bartholomeusz.  Mr Leach asked Mr Russell if the normal rule could be changed for his client and it was unlucky that the client followed him into Mr Russell's office.  If it was of such concern to Mr Russell, he could have explained that the bay had been booked by somebody else.  Instead, Mr Russell agreed to Mr Leach's client using the bay.  Although the reason for termination given at the hearing of this matter was that Mr Leach was involved in an accumulation of incidents, this must be seen in the context of an extremely inexperienced young person having been articled for a matter of only a few weeks.

Taking into account that Mr Leach was only three weeks into his articles at the date of his termination, that he had little time to improve his performance or to obtain further instruction from Mr Russell, and that Mr Russell knew that it would be very difficult for Mr Leach to obtain articles once he had been terminated, I find that the termination of Mr Leach's employment was not for a valid reason as it was harsh, unjust or unreasonable.

REMEDY

The primary remedy envisaged by the Act is reinstatement.  Mr Leach, however, said he would not go back to work for Bruce Duncan Russell & Associates.  Mr Russell said that he would not be prepared to reinstate Mr Leach as an articled clerk, although he would be prepared to take him on as an outside clerk.  In any event, Mr Russell now has two articled clerks working for him, and he is prohibited by Section 10(4) of the Legal Practitioners' Act from retaining more than two articled clerks at any one time.  In these circumstances, I find that reinstatement would be impracticable.

It was submitted by Counsel for the Applicant that the appropriate wage to take into account when assessing compensation is not the $200 per week actually paid to Mr Leach but an amount of $301.10 which is the minimum wage payable under the terms of the Minimum Conditions of Employment Act 1993 (Western Australia). I do not accept that proposition. Under Section 170EE(3) in working out the amount of compensation "the Court is to have regard to the remuneration that the employee would have received or would have been likely to have received if the employer had not terminated the employment".

In this case, the Applicant had agreed, albeit reluctantly, to work for the sum of $200 per week.  It appears likely that had his employment continued he would have been paid at that rate.  In this case, because of the special nature of an articles agreement and because of the very tight job market for articled clerks at around this time, I consider it unlikely that Mr Leach would have been successful in obtaining alternative articles even if his employment had not been terminated.  In those circumstances, I consider that an award of six months' wages, that is $5,200 is an appropriate amount of compensation.

The Court orders:

1. That the Respondent pay to the Applicant the sum of $5200 by way of compensation for the unlawful termination of his employment, such sum to be paid within 21 days of the date of this order.

I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.

Associate

Date:

Counsel for the applicant:                  Mr M Hall of Bar Chambers

Counsel for the respondent:               Ms V Ponnuthurai

Hearing date:         5 July 1995
Judgment date:      4 August 1995