Roy Stanley Jones v Swan Hill Quality Meats Pty Ltd (A.C.N. 007 078 613)
[1996] IRCA 59
•19 February 1996
DECISION NO: 59/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - respondent not represented in compliance with requirements of Industrial Relations Act 1988 - no VALID REASON - COMPENSATION and effect of applicant’s age on his opportunity to find full-time, permanent employment
Industrial Relations Act 1988 ss.170DB, 469
Industrial Relations Court Rules Order 13, Rule 2(3)
ROY STANLEY JONES - v - SWAN HILL QUALITY MEATS PTY LTD
(A.C.N. 007 078 613)
No. VI 3657 of 1995
Before: Judicial Registrar Millane
Place: Mildura
Date: 19 February 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3657 of 1995
B E T W E E N :
ROY STANLEY JONES
Applicant
AND
SWAN HILL QUALITY MEATS PTY LTD
(A.C.N. 007 078 613)
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 19 February 1996
THE COURT ORDERS THAT within 21 days of the date of these orders:
The respondent pay to the applicant the sum of $13,000 compensation.
The respondent pay to the applicant the sum of $2,000 damages pursuant to section 170DB of the Industrial Relations Act 1988.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3657 of 1995
B E T W E E N :
ROY STANLEY JONES
Applicant
AND
SWAN HILL QUALITY MEATS PTY LTD
(A.C.N. 007 078 613)
Respondent
Before: Judicial Registrar Millane
Place: Mildura
Date: 19 February 1996
REASONS FOR JUDGMENT
Delivered ex tempore - revised from transcript
The applicant seeks compensation alleging that on 26 June 1995 his employment was terminated in contravention of Division 3 Part VIA of the Industrial Relations Act 1988 (the Act).
The respondent was represented by solicitors until 8 February 1995 when they ceased to act. On the return date the respondent was not represented in compliance with the requirements of section 469 of the Act. I am satisfied that the respondent was on notice of the hearing date, notified to its former solicitors in November 1995. Accordingly, the matter proceeded as an undefended matter. An application was also made pursuant to Order 13, Rule 2(3) of the Industrial Relations Court Rules to amend the title of the respondent who was incorrectly described as Swan Hill Quality Meats. This application was granted as it was apparent from the Court file and the Employment Separation Certificate (Exhibit A1) that the shorter title was a misdescription.
The applicant is a butcher who turned 65 years of age on 7 November 1995. Between October 1987 and 26 June 1995 he was employed as a butcher and manager of the respondent's retail business in Swan Hill. He accrued substantial leave and it is his uncontested evidence that at his employer's request, he took the first six weeks leave and subsequently eight weeks leave. In the week before the second period of leave concluded he spoke to a Mrs Woodward, the wife of the owner of the business, who informed him that he should return on the following Tuesday. However, at 6.30 pm on the Monday evening he was telephoned by Mr Woodward and requested to attend its shop in Swan Hill where he was informed that his employment was terminated because of lack of work.
He was paid $760 gross; representing $500 for notice of one week's pay calculated on a 40 hour, five and a half day week at the rate of $12.50 per hour. The balance represented his outstanding holiday pay. The Employment Separation Certificate was tendered in evidence (see Exhibit A1) and states that the reason for his termination was shortage of work.
The respondent's shop at the date of termination consisted of some five butchers, including the applicant. As at the week preceding the hearing the applicant told the Court that there were still four butchers employed with one of the incumbents taking on the applicant’s role as manager.
Insofar as the respondent has the onus of proving that there is a valid reason for termination, it has failed to do so and the applicant is entitled to a remedy apart from his entitlement to a further four weeks pay in lieu of notice to comply with the statutory minimum contained in section 170DB of the Act. The applicant only seeks compensation. He told the Court that he did not feel that he could return to the small work environment of the respondent's shop where one of his colleagues was now manager in his stead.
The applicant has made attempts to obtain gainful employment, registering at the CES and approaching another butcher who did not need any further staff. Otherwise, since 1 July 1995, the applicant has held down a casual position delivering parcels for a return of $90 gross per week. Since turning 65 he has also been in receipt of the Age Pension. The applicant claims to be, and does, present as a fit and able bodied person who but for the unlawful termination of his employment, had not discussed or considered retirement from his employment.
On the evidence I am satisfied that reinstatement is impracticable. Further, I am satisfied that in considering the appropriate amount of compensation payable there is no reason for the Court to assume that the applicant could not have continued in his position for a period well beyond the six month compensatory cap provided for in the provisions of the Act. Moreover, the applicant is clearly prejudiced in his attempt to return to full-time, permanent employment because of his age. Accordingly, the order for compensation should reflect the cap applicable in this Court; namely $13,000.
MINUTES OF ORDERS
THE COURT ORDERS THAT within 21 days of the date of these orders:
The respondent pay to the applicant the sum of $13,000 compensation.
The respondent pay to the applicant the sum of $2,000 damages pursuant to section 170DB of the Industrial Relations Act 1988.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 27 February 1996
Solicitors for the Applicant: Dwyer, Mahon & Robertson
Counsel for the Applicant: Mr D.P. Martin
No Appearance for the Respondent.
Date of hearing: 19 February 1996
Date of judgment: 19 February 1996
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