Rick Maaskant v Olympus Downs Pty Ltd and a Patras trading as Mag-Pies Vic

[1995] IRCA 455

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  VI 3437 of 1995

B E T W E E N:

Rick MAASKANT
Applicant

A N D

OLYMPUS DOWNS PTY LTD
First Respondent

A. PATRAS trading as MAG-PIES VIC.
Second Respondent

REASONS FOR DECISION - DELIVERED EX TEMPORE

1 September 1995  PARKINSON JR

This is my decision delivered ex tempore in relation to an application made by the applicant, Mr Maaskant, in matter VI 3437 of 1995.  There is a preliminary matter in relation to this application with which I propose to deal before deciding the merits of the proceeding. 

There is a difficulty in these proceedings in ascertaining the true employer.  The applicant's evidence is that he was employed by the business Mag-Pies Vic.  The respondent originally filed an appearance in the proceedings which indicated that the applicant was employed by Olympus Downs Pty Ltd as trustee for Olympus Downs Trust trading as Mag-Pies Vic.

A letter received by the Court on 31 August 1995 from Mag-Pies Vic, bearing the same address of the place of employment of the applicant and  the former address of the named respondents filed in the notice of appearance, advised the Court that the named director Mr Patras, that is the director who signed the original notice of appearance in the proceedings, would not be appearing in the proceedings this day because the company Olympus Downs Pty Ltd no longer exists.  That letter is on the letterhead of Mag-Pies Vic, identified as makers of fine pastries, 27 Thornton Crescent, Mitcham, Victoria, 3132. The letter was sent by facsimile to the Court and bears a facsimile imprint of Mag-Pies Pty Ltd.

It is implicit in that letter that Mr Patras, by whose business the applicant identifies he was employed, is still operative within the business located at 27 Thornton Crescent, Mitcham, Victoria. The Industrial Relations Act 1988 provides generally within its provisions for successor and assignee obligations of persons who take over or continue to operate the business of an employer (see Regulation 131N). I am not satisfied that the applicant was not employed by Mr A. Patras trading as Mag-Pies Vic.

I am satisfied in this case on the evidence of the applicant as to the circumstances of his employment and its location, as to a joint obligation in respect of the employment of the applicant.  Pursuant to O.6 r.2, O.6 r.8, and O 42  div. 2, I decide on my own motion that Mr A. Patras trading as Mag-Pies Vic, be joined as a respondent in these proceedings and, pursuant to O. 11 r. 1, I am satisfied that the respondents, including the respondent joined this day, have been served with notice of these proceedings and are aware of their taking place this day.  The proceedings are amended in the form I have indicated and time is abridged for service. 

I further order that a copy of this decision and the orders of the Court this day be provided to the respondents in the proceeding by way of certified mail to the business address of the respondents by the registry of the Court. It is my decision that the respondents are liable jointly and severally for the moneys in compensation which I am about to order in these proceedings.

I turn now to consider the merits of the application.  The applicant was employed for a period of some three days by the respondent.  His evidence was that he responded to an advertisement placed by the employer in The Age newspaper on 7 June 1995.  A copy of that newspaper advertisement was provided to the Court by the applicant and marked exhibit A1.  That document exhibit A1 indicated that there were two positions available with the respondent for afternoon shift.  The applicant's evidence was that he was employed and took employment on the understanding that the employment was for a full-time permanent position.

The applicant's employment was terminated on the conclusion of the weekend period over which he was employed.  The circumstances of the termination were that he was terminated upon the return of the foreman who had been absent from work over a long weekend because of domestic commitments.  The applicant believes he was employed only as a fill-in for the foreman for the convenience of the business over the period of the foreman's proposed absence, and that there was never intention to continue the employment beyond that absence.

On the evidence before me this day, and having regard to the circumstances and the manner in which the employment was terminated, I am satisfied that this was the case.  However, it is apparent from the applicant's evidence that the respondent’s foreman had some concerns as to the applicant's work performance during the period of the long weekend, although no discussion of this occurred and no specific matters were put to the applicant at the time of the termination. 

I am satisfied that the applicant in these proceedings is entitled to a remedy.
I am satisfied there has been a failure in the respondent to establish that it had valid reason for the termination of the employment. Further, I am satisfied on the material put before me by the applicant that the termination of the employment was harsh, unjust and unreasonable and contravened section 170DE(2) of the Act and further, that there was a failure to comply with section 170DC of the Act in so far as giving the applicant an opportunity to respond to any allegations made as to his conduct or work performance. In the circumstances of the applicant's belief that the employment would be permanent and ongoing, and the manner in which the employment terminated, I am satisfied that compensation ought lie.

The applicant has not sought an order for reinstatement; he seeks only compensation.  In my view, having regard to the length of employment and the possibility that there were differences between the parties as to work performance, I have decided that an order for compensation in the sum of $1840.00, representing one months pay in addition to the amount of $100.00 or so provided to the applicant upon termination, is an appropriate order. 
The orders of the Court will be:

1. the title of the proceedings in this matter be amended as indicated in the course of this judgment;

1. that time for service and requirements for service be abridged in accordance with the rules of Court;

1. that the respondents pay to the applicant the sum of $1840.00 in compensation;

1. that payment be made within 14 days of today’s date; and

1. that a copy of the decision of the Court and the orders of the Court in this matter be provided to the respondents in the proceedings by the registry of the Court by way of certified mail. 

I certify that this and the preceding four (4) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson delivered ex tempore
and revised from the transcript.

Associate:
Dated:  1 September 1995

Applicant in person
No appearance for respondent

Date of hearing:  1 September 1995

Date of judgment:  1 September 1995

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
  VI 3437 of 1995

B E T W E E N:

Rick MAASKANT
Applicant

A N D

OLYMPUS DOWNS PTY LTD
First Respondent

A. PATRAS trading as MAG-PIES VIC.
Second Respondent

MINUTES OF ORDERS

1 September 1995  PARKINSON JR

THE COURT ORDERS THAT:

1. The title of the proceedings in this matter be amended as indicated in the course of this judgment.

1. Time for service and requirements for service be abridged in accordance with the rules of Court.

1. The respondents pay to the applicant the sum of $1840.00 in compensation.

1. Payment be made within 14 days of today’s date.

1. A copy of the decision of the Court and the orders of the Court in this matter be provided to the respondents in the proceedings by the registry of the Court by way of certified mail. 

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

C A T C H W O R D S

PRACTICE AND PROCEDURE - non-appearance of respondent - difficulty in ascertaining true employer - joinder of second respondent

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION

Industrial Relations Act 1988, ss. 170DE(2), 170DC; reg. 131N, O. 6 r.2, O. 6 r.8, O.11 r.1, O. 42

RICK MAASKANT v OLYMPUS DOWNS PTY LTD and A. PATRAS trading as MAG-PIES VIC.
VI 3437 of 1995

Before:           PARKINSON JR
Place:              MELBOURNE
Date:              1 SEPTEMBER 1995