Sharon Barter v Cummings Corporation Pty Ltd T/a PJ Balnaves and Co

[1995] IRCA 599

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - whether valid reason - whether harsh unjust or unreasonable - compensation.

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

SHARON BARTER -V- CUMMINGS CORPORATION PTY LTD T/A P.J.BALNAVES & CO

No. SI95/1292

JUDICIAL REGISTRAR:                L FARRELL
PLACE:  ADELAIDE
DATE:  2 NOVEMBER 1995

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI1292 of 1995

B E T W E E N:

SHARON BARTER

Applicant

AND

CUMMINGS CORPORATION PTY LTD   trading as P J BALNAVES & CO

Respondent

MINUTES OF ORDER

BEFORE:                JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  2 NOVEMBER 1995

THE COURT ORDERS THAT:

1. The Respondent to pay to the Applicant the sum of $9,706.00 within 21 days of    today’s date.

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

INDUSTRIAL RELATIONS COURT  )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY     )

No. SI1292 of 1995

B E T W E E N:

SHARON BARTER

Applicant

AND

CUMMINGS CORPORATION PTY LTD trading as   P J BALNAVES & CO

Respondent

BEFORE:                 JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  2 NOVEMBER 1995

REASONS FOR JUDGMENT

This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that her employment was terminated unlawfully.

The Applicant was employed by the Respondent as a Secretary from 15 February 1995 until 30 June 1995.  It was agreed during the course of the hearing that the Applicant was employed pursuant to the Clerks (SA) Award.  Her commencing salary was $24,500.00.  Mr Balnaves gave evidence that the Applicant was employed as a probationary employee for three months, that the review date was then extended and that she was ultimately dismissed when all other employees were terminated.  All other employees of the Respondent were then engaged by a new Company in which the Respondent is now involved.  A new employee was hired to fill the role the Applicant had formally performed.  Mr Balnaves gave evidence that on 30 June 1995 he told the Applicant that her employment was being terminated because his partner in the new Company did not her.  The Applicant was not consulted, warned or counselled prior to the termination of her employment.  Mr Balnaves was happy with her performance and gave her a glowing reference upon the termination.  He gave evidence that the reference contained his honest opinion of the Applicant.  The Applicant gave evidence that no probationary period was ever mentioned to her prior to the commencement of her employment.  Her evidence was that Mr Balnaves told her that her salary would be reviewed in three months time.  I accept her evidence in that regard, it is consistent with her approaching Mr Balnaves in late May regarding an increase in salary.

Counsel for the Respondent argued that it had a valid reason for the termination of the Applicant’s employment because the Company that employed her ceased to trade on 30 June 1995.

In my view that reason for the termination of the Applicant’s employment was a sham.  I am therefore not satisfied that the Respondent has a valid reason for the termination of the Applicant’s employment.

I am also of the view that the Respondent has failed to afford procedural fairness to the Applicant in the manner that the Applicant was dismissed.

I therefore find that the Applicant’s employment was terminated unlawfully.

The Applicant has been able to find some temporary agency work since the termination of her employment. She has earned $2,544.00 from that work. She has since learned that she is pregnant and her expected confinement date is the 3 March 1996. Had she continued to be employed by the Respondent she would have been entitled to take maternity leave from her employment with the Respondent from 15 February 1996. As a result of the termination of her employment she has lost the right to return to a job following maternity leave. It is a significant right recognised in the Industrial Relations Act.

In assessing compensation I take into account that the Applicant has earned approximately $2,544.00 since the termination of her employment, the loss of job security, and her ongoing loss of income from a job for which she had a reasonable expectation of continuing employment.  I therefore award compensation to the Applicant in the sum of $9,706.00.

I certify that this and the preceding  page is a true copy of the reasons for my judgment.

DATE OF HEARING  :          26 OCTOBER 1995

FOR THE APPLICANT       :          MR PRENDERGAST

FOR THE RESPONDENT    :          MR ESAU