Stuart Joel Lesorgen and Central Cleaning Supplies

[1994] IRCA 98

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - applicant left employment for an unspecified period for personal reasons - expectation of re-employment - no re-employment - no re-employment offered - ending of employment an act of the employee - ending of employment not an act of the employer and not at the initiative of the employer.

Industrial Relations Act 1988, S170CB, S170DE, S170EA, S170EE.

APESMA v Skilled Engineering Pty Ltd and other matters (1994) 54 I.R.236, 122 ALR 471.

STUART JOEL LESORGEN AND CENTRAL CLEANING SUPPLIES

No. VI-1652

Before:           Ryan JR

Place:              Melbourne

Date               24 October 1994

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No VI-1652

B E T W E E N:    STUART JOEL LESORGEN

AND:                   
  CENTRAL CLEANING SUPPLIES

COURT:           RYAN JR

PLACE:            MELBOURNE

DATE:               24 OCTOBER 1994

JUDGMENT EX TEMPORE

The matter was listed for a directions hearing on 4 October 1994 and on that occasion the respondent, who at all times has been described simply but perhaps inaccurately as Central Cleaning Supplies, did not attend at the directions hearing.  I note that the applicant served the application on a person who I accept was a Mr Joe Cameleri and I accept that Mr Cameleri plays a major part in the conduct of an organisation known as Central Cleaning Supplies which operates from 201-203 Queensberry Street, Carlton.

On 4 October neither Mr Cameleri nor any other person from Central Cleaning Supplies attended at the directions hearing and Registrar Morris directed that the matter be set down for hearing today, 24 October 1994 and that Central Cleaning Supplies be advised that if there was no appearance the matter may be dealt with finally and orders made in favour of the applicant notwithstanding the absence of the respondent.

No person from the organisation known as Central Cleaning Supplies having appeared this morning I have proceeded to determine the matter and have accepted sworn evidence from the applicant, Stuart Joel Lesorgen.   I have accepted absolutely the sworn evidence of Mr Lesorgen in relation to what he perceives to have been the situation which arose when he left his place of employment on 30 August.  Nevertheless, I am not satisfied that the applicant’s employment was terminated by Joe Cameleri who is described as Managing Director of Central Cleaning Supplies, 201-203 Queensberry Street, Carlton.

I am satisfied that the applicant was employed by Mr Cameleri in response to an advertisement in The Age and was employed by or on behalf of Central Cleaning Supplies from 19 May 1994 to 30 August 1994.  My view is that on 31 August 1994 the applicant ended his employment with the expectation and hope and indeed on an assurance that employment would be available for him when he returned from what was an absence described to the employer as a necessity for dire family reasons to briefly travel to the United States to see his sick father.

I am not troubled by the fact that the absence sought was for other reasons.  I accept that they were important personal reasons.  I also accept that if the employer had not given the employee what he took to be an assurance of work available on return at an unspecified date (but in the not too distant future) the employee would not have left the work place.  However, the employee did leave the work place.  In my view it was not authorised leave.  I have no evidence before me to suggest it was.  It was for an indefinite although short but unspecified period and probably for no more than two weeks, but, it was unspecified.  In my view, although the employee genuinely believed it was authorised leave it was in fact an ending of the employment by an employee who hoped and expected he would be re-employed on his return.

He was not re-employed but the ending of his employment on 30 August was his act and not that of the employer. In such circumstances there is no jurisdiction under Section 170EA of the Industrial Relations Act 1988 and I regret that I must dismiss the application.

I certify that this and the preceding page are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :           
Date  :           
Appearances:
Applicant  :  In person
Respondent       :  No appearance
Date of Hearing  :           24 October 1994

Judgment  :           24 October 1994