Schafer v Coleiro
[1996] IRCA 494
•08 October 1996
DECISION NO:494/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - no appearance for respondent at hearing - VALID REASON - failure to discharge ONUS OF PROOF - prohibited reason for termination - no notification to the employer of any claim made pursuant to section 170DF(1) of the Act
Industrial Relations Act 1988 ss. 170DB, 170DC, 170DE(1), 170DF(1)(f)
CASES:Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371
KYLIE JANE SCHAFER & ALHMU - v - LILY COLEIRO
No. VI 4342 of 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 8 October 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 4342 of 1995
B E T W E E N :
KYLIE JANE SCHAFER &
ALHMU - MISCELLANOUS WORKERS’ DIVISION
Applicants
A N D
LILY COLEIRO
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 8 October 1996
THE COURT DECLARES THAT:
The termination of the first-named applicant’s employment by the respondent on 8 August 1995 contravened Division III Part VIA of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT within 21 days of the date of making these Orders:
The respondent pay to the applicant -
(a) damages in the sum of $334.95; and
(b) compensation in the sum of $9463.99
less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
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 4342 of 1995
B E T W E E N :
KYLIE JANE SCHAFER &
ALHMU - MISCELLANEOUS WORKERS’ DIVISION
Applicants
A N D
LILY COLEIRO
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 8 October 1996
REASONS FOR JUDGMENT
(delivered ex tempore - revised from transcript)
By an application made on 17 August 1995, the applicants allege that the termination of the first-named applicant's employment by the respondent on 8 August 1995, contravened Division III Part VIA of the Industrial Relations Act 1988 (the Act). In particular, it is alleged there were breaches of sections 170DE(1), 170DB, 170DC and 170DF(1)(f) of the Act.
This proceeding was originally fixed for hearing earlier this year. However, it was apparently settled and on 2 April 1996 consent orders were made striking out the proceeding with a right of reinstatement. The proceeding was reinstated when the settlement failed. There was no appearance for the respondent at hearing. However, I am satisfied from the Court file that the respondent has been duly notified of the hearing date.
At hearing, the applicant and Fiona Leonard (Leonard) gave evidence. The applicant produced to the Court an unsigned statement dated 7 October 1996 (exhibit A1), the contents of which she adopted as being an accurate factual account of the matters surrounding the termination of her employment.
The applicant at the date of termination was employed as a permanent part-time child care worker level 1 at the Florence Court Children's Centre. This centre was, at the relevant time, owned and operated by the respondent. However, Leonard's evidence indicates that in the latter part of 1995 the centre changed ownership and is now called the Jelly Beans Child Care Centre.
When the applicant commenced her employment in March 1994 she did so with no experience or training. Her duties were to assist in the care of the toddlers aged two to three years, and in August 1995 she was still employed at this level assisting Leonard who commenced her employment with the respondent from July 1995 as a full time qualified child care assistant in charge of the toddlers' room. The applicant's date of birth is 6 August 1974 and two days prior to the termination she celebrated her 21st birthday.
Both the applicant and Leonard gave evidence that one of the procedures at the centre was for a child care worker to accompany toddlers to the toilet where necessary. Without reiterating in full the contents of the statement, it is apparent from the evidence of both witnesses that on 2 August 1995 four child care workers were in the yard attending a group of children consisting of toddlers supervised by the applicant and Leonard, and kindergarten groups supervised by two other child care workers.
In accordance with the respondent's procedures, the applicant responded to a request from a number of children who wished to go to the toilet. She followed the required practice of telling the other child care workers that she was leaving to do this, and Leonard was left with the toddlers playing on the equipment. Unfortunately, there was an incident where a child fell off a slide. Leonard was there and attended to the child and was subsequently asked by the directress, referred to as Nikki, to provide a written statement concerning the incident for the purposes of preparing a report to Community Services Victoria. The applicant attended the office following the incident but was not asked to provide any report and was never part of any formal investigation.
The applicant's birthday was celebrated at the centre on Monday, 7 August 1995. On Tuesday, 8 August 1995 she was called into the office and was informed by Nikki, in the presence of the respondent, that the child's mother had threatened to remove her three children from the centre as a result of the incident if the applicant was not sacked. The applicant was offered the opportunity to resign but declined to do so and was terminated on the spot; receiving her wages to the date of termination together with her annual leave entitlement. She received no compensation in lieu of notice and now seeks damages pursuant to section 170DB of the Act for one week's pay in the sum of $334.95.
A copy of the relevant and applicable award, the Children's Services (Vic) Interim Award 1994, was handed to the Court by the applicants’ representative. That document indicates that Florence Court Childrens' Centre is a respondent to the award. From 6 August 1995, when the applicant turned 21 years of age, she was then entitled to be paid at the higher rate of $9.57 per hour or $334.95 gross per week. It appears that the rate paid for annual leave was at the lower rate, however, there was no application properly before the Court to address any shortfall in that payment or, indeed, in the wages paid to the date of termination.
At hearing the applicant produced to the Court a bundle of group certificates which show that she has been employed on an intermittent basis since the date of termination in casual child care work.
VALID REASON
The respondent carries the onus of proving that at termination it has a valid reason for termination. The reason given to the applicant at termination is not one that could in any way be said to be, on the evidence, a sound, defensible or a well founded one (see Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371).
The applicant's evidence establishes that there was a termination at the initiative of the respondent and the respondent's failure to defend the proceedings means that it has not met the onus of proof it carries.
Accordingly, my finding is that there has been contravention of section 170DE(1) of the Act. I am further satisfied that section 170DC of the Act has been contravened because, on the evidence, there was no real opportunity afforded the applicant to explain any conduct alleged against her.
Section 170DF(1)(f)
The applicants were unable to satisfy me that any notification of a claim was given to the respondent pursuant to section 170DF(1)(f) of the Act alleging that the reason or one of the reasons for the termination was the applicant’s age. This, of course, highlights the problem applicants experience because the application filed with the Court does not provide for such notification, where section 170ED(a)(ii) of the Act refers to an application lodged under section 170EA alleging a contravention of section 170DF(1) of the Act.
Because of these matters, it is inappropriate in this proceeding to deal with a claim that may not have been notified to the employer at all.
REMEDY
My finding is that reinstatement is impracticable; primarily because the respondent no longer operates the centre at which the applicant was employed. The applicant seeks compensation at the rate payable to a 21 year old child care worker level 1. This is quantified at $17,417.40 for a 12 month period or $9,463.99 for six months.
Since termination the applicant has remained largely unemployed but for some casual employment, earning a total of $3,308 to date. She now works as a casual nanny for four days per week earning $80 gross per week. At the date of termination, the applicant appears to have had secure employment at the centre.
Leonard had remained employed with the new operator of the centre until seven weeks prior to this hearing, and I infer from this that there was no reason why the applicant could not have continued her permanent part-time employment with the respondent but for the capricious and unlawful termination of her employment. The applicant's continuing loss clearly exceeds the six months' ceiling applied to compensation payable under the Act, regardless of the amounts received by her in the interim. Accordingly, the order I make is that she be paid the maximum sum of compensation.
MINUTES OF ORDERS
THE COURT DECLARES THAT:
The termination of the first-named applicant’s employment by the respondent on 8 August 1995 contravened Division III Part VIA of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT within 21 days of the date of making these Orders:
The respondent pay to the applicant -
(a) damages in the sum of $334.95; and
(b) compensation in the sum of $9463.99
less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
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 five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated: 16 October 1996
Representative for the Applicants: ALHMU - Miscellaneous Workers’
Division
Appearing for the Applicants: Ms M. Cooper
No appearance for respondent.
Date of hearing: 8 October 1996
Date of judgment: 8 October 1996
0
0
0