Thatcher, Kenneth v Eastern Pines Pty Ltd
[1997] FCA 993
•16 SEPTEMBER 1997
FEDERAL COURT OF AUSTRALIA
INDUSTRIAL LAW - Termination of Employment - minimum notice - termination because of “shortage of work” - no notice of termination - no payment of compensation instead of notice - compensation ordered.
Workplace Relations Act 1996 ss. 170CF, 170CFA, 170CM, 170CP, 170CR and 170CS
BETWEEN:
KENNETH THATCHER
APPLICANTAND:
EASTERN PINES PTY LTD
RESPONDENT
VG 233 OF 1997
RYAN JR
MELBOURNE
16 SEPTEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 233 of 1997
BETWEEN:
KENNETH THATCHER
APPLICANTAND:
EASTERN PINES PTY LTD
RESPONDENTJUDICIAL REGISTRAR:
RYAN
DATE OF ORDER:
16 SEPTEMBER 1997
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
Pursuant to section 170CR(4) the respondent pay to the applicant, within 28 days of this order, the sum of $1991, being an amount equivalent to five weeks wages in lieu of notice.
The respondent pay to the applicant, within 28 days of this order, costs incurred in the preparation and service of the affidavit of service of Steven James Moore affirmed 16 September 1997, such costs to be paid under the appropriate scale in the Federal Court.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 233 of 1997
BETWEEN:
KENNETH THATCHER
APPLICANTAND:
EASTERN PINES PTY LTD
RESPONDENT
JUDICIAL REGISTRAR:
RYAN
DATE:
16 SEPTEMBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
(Delivered Ex Tempore - revised from Transcript)
This applicant, as an employee, has applied under section 170CP of the Workplace Relations Act 1996, (the Act) for an order for damages under section 170CR in respect of contravention of section 170CM, (the minimum notice requirement).
On 10 January 1997 the applicant applied under section 170CE(1) for remuneration lost because of termination of employment on 20 December 1996. The ground for the application was stated to be section 170CM, (failure to give statutory notice).
On 7 February 1997 Deputy President Watson issued a certificate under section 170CF(2) in which the Australian Industrial Relations Commission certified that all reasonable attempts to settle the matter by conciliation have been or are likely to be unsuccessful. The Deputy President stated in the certificate that the parties had been advised that on the material before him the applicant had raised a substantial issue in respect of section 170CM.
On 11 February 1997 the applicant gave notice under section 170CFA(2) that he had elected to begin proceedings in a Court of competent jurisdiction. I have today extended time for the making of the application pursuant to section 170CP(7).
On 11 July Northrop J ordered the matter be heard by a Judicial Registrar. The matter was referred to me on 25 August and heard today, 16 September. Mr Moore appeared for the applicant. The respondent did not appear and did not appear at the directions hearing on 11 July.
The matter is essentially undefended and the Court yesterday received a letter from Anthony Patrick and Associates, administrators of insolvency, in which T.P. Scanlon advised that
as of Thursday, 11 September he had been appointed by the directors company for the winding up of the company
in the circumstances he had been unable to give instructions for legal representation and appearance at the hearing of the matter
the applicant, as claimant, would be advised as to a creditors meeting in due course.
An Employment Separation Certification issued on 20 December 1996 was completed and signed by L. Ferguson, company secretary, of Eastern Pines Pty Limited trading as Local Taxi Trucks. The certificate states that
the applicant worked for the respondent from 11 April 1985 to 20 December 1996. (i.e. some 11 years and 8 months).
the employment was terminated because of shortage of work through a “lost contract”
upon termination the applicant was paid $1102.70 representing 13.84 days annual leave.
the net final payment, including annual leave, was $1245.50.
The applicant has today confirmed that he received a cheque for $1245.50.
In his affidavit of 23 May the applicant deposes that he was
employed as a truck driver
terminated in his employment on 20 December
notified of the termination on the day it occurred
paid an amount “equivalent to one week's pay in lieu of notice”
I am satisfied from the affidavit of service of Mr Moore sworn today that the application in these proceedings and the affidavit of the applicant of 23 May were served on the respondent and that the respondent was advised of the hearing today. I note that the applicant's solicitor has not received any correspondence from the respondent.
I am satisfied that the employer has contravened section 170CM in relation to the termination of the employment of the applicant. I propose to order the employer to pay to the applicant an amount of damages equal to the amount which, if it had been paid by the employer to the employee when the employment was terminated, would have resulted in the employer not contravening that section.
I am not satisfied the employer paid any amount in lieu of notice. Under section 170CM(2), this applicant was entitled to five weeks notice.
COSTS
The applicant sought costs under s170CS(1)(b) on the basis that the respondent:
caused costs to be incurred by the applicant because of “an unreasonable act or omission (of the respondent) in connection with the conduct of the proceeding.”
The applicant was required to attend the Directions Hearing before Northrop J and the hearing today. The costs of those attendances were not caused by the respondent. However, the respondent’s failure to attend the Directions Hearing led to the orders on 11 July that the applicant give notice of the orders of that date to the respondent and give notice to the respondent of the date of hearing once the matter had been set down. The failure of the respondent to attend the Directions Hearing caused costs to be incurred by the applicant. It was an unreasonable omission by the respondent in connection with the conduct of the proceeding. The failure of the respondent to attend the Directions Hearing was an unreasonable omission which led to the preparation of an Affidavit of Service by the Applicant’s solicitor, an affidavit affirmed 16 September 1997. This affidavit sets out
the circumstances of the service on 28 May of the Application under s170CP
the history of the matter prior to the commencement of the Application
the non-appearance of the respondent at the Directions Hearing on 11 July
the service of the orders of 11 July on the respondent
the registered letter of advice to the respondent of the hearing today
In my view, the preparation of the affidavit and the service of the material set out therein are costs which should be ordered against the respondent pursuant to s170CS(1)(b).
ORDERS:
Pursuant to section 170CR(4) the respondent pay to the applicant, within 28 days of this order, the sum of $1991, being an amount equivalent to five weeks wages in lieu of notice.
The respondent pay to the applicant, within 28 days of this order, costs incurred in the preparation and service of the affidavit of service of Steven James Moore affirmed 16 September 1997, such costs to be paid under the appropriate scale in the Federal Court.
I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Ryan
Associate:
Dated: 16 September 1997
Solicitor for the Applicant: Mr S Moore
Date of Hearing: 16 September 1997
Date of Judgment: 16 September 1997
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