Silvia Tanase and Argyle Tavern Centre Pty Ltd
[1994] IRCA 75
•24 Oct 1994
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA NI No. 358 of 1994
SYDNEY DISTRICT REGISTRY
BETWEEN:
Silvia TANASE
Applicant
AND:
ARGYLE TAVERN CENTRE PTY LTD
Respondent
MINUTES OF ORDER
24 October 1994 LINKENBAGH JR
THE COURT ORDERS THAT:
That that termination of Mrs Tanase's employment contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
That the respondent pay to the applicant for unpaid wages and payment in lieu of notice a sum of $215 within seven days of today's date.
That the respondent pay to the applicant by way of compensation pursuant to the provisions of section 170EE of the Act the sum of $4,800 and that that amount be paid within fourteen 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 NI No. 358 of 1994
SYDNEY DISTRICT REGISTRY
BETWEEN:
Silvia TANASE
Applicant
AND:
ARGYLE TAVERN CENTRE PTY LTD
Respondent
Reasons for Judgement
24 October 1994
LINKENBAGH JR
This is an application made by Silvia Tanase under the provisions of Section 170EA of the Industrial Relations Act 1988. In her application, Mrs Tanase, asks for an Order that the termination of her employment contravened Division 3 of Part VIA of the Act and an Order requiring the respondent to either reinstate her or pay her compensation and she also seeks such other order or orders that would put her in the same position as she would have been had her employment not been terminated.
The facts are that Mrs Tanase commenced employment with the respondent on 26 March 1994 and her employment was terminated on 25 May 1994. Mrs Tanase came to the employment through the services of the Commonwealth Employment Service and her employment was subsidised by that service for the initial 20 weeks of her employment. Her employment was in fact terminated within that 20 week period so that for the whole of the time that she was employed by the respondent her wages which are agreed to have been $300 a week, were subsidised by the Commonwealth Government in the amount of $200 a week. Her employment was therefore actually costing her employer about $100 a week.
Mrs Tanase worked in the respondent's restaurant for a rate of pay of $7 per hour. Her hours of work were from 7.00 am until 3.00 pm and she told the court that she had no breaks in that time. She worked very hard and the restaurant was a very busy. She spent the first 4 hours of each day preparing salads and the remainder of her shift each day was spent assisting in the serving of food in the Function Room at the restaurant.
Mrs Tanase's evidence was that the supervisor was a person who was also a very hard worker and who worked under a great deal of pressure. That probably influenced Mrs Tanase's perception that the supervisor was never happy and the supervisor often used bad language about the employees including Mrs Tanase. On one occasion, Mrs Tanase's evidence is that the supervisor called her a bitch.
Mrs Tanase found working without a break quite a long day and she commenced taking a break of about half an hour at 2.30 pm when she would have something to eat. The job entailed her standing up all the time and I think it can only fairly be said that she was in a position where her employer did not fulfil the usual requirements of employers in relation to giving breaks from work and making working conditions as easy as the circumstances permit.
Mrs Tanase says the day after she complained to the supervisor about not having a break she came to work and was informed by the supervisor that her job was no longer available. On the same day, 25 May 1994, she was handed a letter signed by the executive chef saying that she was a punctual person and did all her work to the employers satisfaction but that the employment had to be terminated because of a slowing down in business. That day was also about a week after there had been an incident between Mrs Tanase and the supervisor which was the incident in which Mrs Tanase states that the supervisor called her a bitch. The respondent's witness informed the court that the supervisor had told him that she knew nothing about that incident.
The respondent maintains that the termination of the employment was because of a slowing down in business. Mrs Tanase's evidence was that the supervisor complained in many occasions about not having enough staff and that in fact all of the staff worked very hard and were all very busy. The respondent says that the figures, whatever they might be, had dropped by half since Mrs Tanase was employed and his primary evidence was that that was because that was a phenomenon that happened every year because of the flow of Japanese tourists to Australia. He later said that the down turn in business was related to other factors and that it is very difficult in the restaurant business to predict what one's flow of business may be even six weeks ahead. I find those assertions difficult to accept. They are not supported by any real evidence as to a down turn in business, the Japanese tourist trade, or any decisions on the part of this company to restructure or to reduce staff numbers.
Mrs Tanase's evidence was that there was no conversation in the work place and no rumours around the work place to do with a drop off in business or the need to retrench or lay off staff. One would have thought that if the respondent was going through a major crisis which was going to have that result then there would at least have been some mention of it, if not on the grapevine in the work place at least by the employer itself, so as to maintain morale and allow everybody in the work place to understand what was happening. There was therefore on the evidence before me no formal restructuring or no formal planning in relation to the reduction of staff numbers.
I find that I prefer the evidence of Mrs Tanase which was that her employment was terminated apparently relating to the differences that she had with the supervisor. The other factor in the evidence which causes me to have grave concerns about the seriousness of the respondent's proposition that there was a slow down in business which caused the termination of Mrs Tanase’s employment is the fact that Mrs Tanase's wages were subsidised to the extent of two-thirds by the Commonwealth Employment Service. She, a very hard working woman, was available to her employer for about $100 per week out of the employer's pocket and one would have thought that if the need for redundancies were a serious concern for the employer, that the employer would have been looking to restructure and get rid of or dismiss employees who were actually costing them real money, not a person who they had on their books, and who they could have had for another several weeks, for a mere $100 a week.
I therefore prefer the evidence of Mrs Tanase and I reject the respondent's assertion that the termination was necessary because of the operational requirements of the business.
Now, turning to the law, under section 170DE of the act an employer must not terminate an employees employment unless there is a valid reason connected with the employee's capacity or conduct or based on the operational requirements of the undertaking. Subsection (ii) of that section provides that a reason is not valid if having regard to the employee's capacity and conduct and those operational requirements the termination is harsh, unjust or unreasonable. Now, I have found that there was no good reason and it follows from that that the termination was harsh, unjust or unreasonable and I therefore find that the employer has contravened the Act and that this dismissal was unfair.
Evidence that was given in the course of the hearing in relation to wages being underpaid in the sense that 5 hours of pay had not been paid to Mrs Tanase and insufficient notice as provided by section 170DB of the Act had been given. The parties have agreed that the amount to which Mrs Tanase is entitled for wages and wages in lieu of notice is $35 for wages and $180 in lieu of notice making a total of $215.
I therefore make the following orders:
That that termination of Mrs Tanase's employment contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
That the respondent pay to the applicant for unpaid wages and payment in lieu of notice a sum of $215 within seven days of today's date.
That the respondent pay to the applicant by way of compensation pursuant to the provisions of section 170EE of the Act the sum of $4,800 and that that amount be paid within fourteen days of today's date.
I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgement of Judicial Registrar Linkenbagh
Associate :
Date : 24 October 1994
Counsel for the Applicant : In person
Counsel for the Respondent : Mr Ulrich Rabsch
Date of Hearing : 18 October 1994
Date of Judgement : 24 October 1994
0
0
0