Torres v Days Property Pty Ltd
[1995] IRCA 334
•21 July 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1759 of 1995
B E T W E E N :
NORBETTO TORRES
Applicant
AND
DAYS PROPERTY SERVICES PTY LTD
Respondent
Before: Judicial Registrar Millane
Place: Melbourne
Date: 21 July 1995
REASONS FOR JUDGMENT (Ex Tempore)
(Revised from Transcript)
The applicant seeks compensation and damages pursuant to Division 3 Part VIA of the Industrial Relations Act 1988 (the Act) arising out of the termination of his employment by the respondent on 15 February 1995. Louis Kushinsky and Associates is the solicitor on the court record acting on behalf of the respondent. At hearing there was no appearance by or for the respondent. Mr Barbour from the CFMEU representing the applicant and the union at hearing produced to the Court a facsimile received by him from the respondent solicitor at 4.03pm in the afternoon before the hearing. The facsimile notified Mr Barbour that the firm of solicitors had ceased to act for the respondent. A letter to the same effect was received by the Court by mail on the morning of 21 July 1995. The respondent's solicitors action in attempting to withdraw from the record was in contravention of Order 45 of the Industrial Court Rules inasmuch as the solicitor required the leave of the Court to take this step. At my request Mr Kushinsky was telephoned by a court officer who advised him that his purported notification to the Court was not in compliance with Order 45 of the Industrial Relations Court Rules. His firm was given the opportunity to attend Court noting that he remained the solicitor on the record and the case would proceed as an undefended matter if he failed to attend. Mr Kushinsky, despite his obligations both to his client and the Court as the solicitor on the record, declined to attend. Whilst it was noted that the solicitors behaviour in this matter is unacceptable, rather than further inconvenience the applicant by delaying this matter the Court proceeded to hear the application as an undefended one.
The applicant commenced his employment with the respondent as a painter and decorator in November 1992 and that employment continued, according to the applicant, until 15 February 1995 save for two periods in August 1993 and again in late August / early September 1994 when he was stood down by his employer because of lack of work.
In the weeks he was stood down he was not paid and was not given any redundancy package. When work became available the respondent recalled the applicant to his permanent position as a painter and decorator. The respondent's business appears to have involved, amongst other things, the painting of schools, some of which were in country locations. The applicant was employed pursuant to the National Building and Construction Industry Award 1990.
It appears that over the period of his employment there were a number of breaches of the award by the respondent including underpayment of wages and non payment of travel allowances for work performed outside a 50 kilometre radius of the city; not to mention the standing down of the employee without pay when there was a shortage of work. The applicant sought to include a claim for these award breaches by relying on the accrued jurisdiction of the Court. Notwithstanding the Court’s jurisdiction to hear such claims I was not satisfied that these claims had been fully notified to the respondent prior to hearing and could properly be heard at the same time as the claim relating to the unlawful termination.
So far as the termination is concerned the applicant gave evidence that in February 1995 he approached the union, the CFMEU, with a number of complaints. George Patterson, a trade union official, gave evidence confirming that he received complaints of underpayment from the applicant and some three weeks prior to the termination he sent to the employer, and in particular Stewart Purvis, who represented the respondent on site, wages sheets together with a draft enterprise bargaining agreement. He also made verbal enquiries of Purvis as to why the rates paid were not in accordance with the award.
Patterson described Purvis as demonstrating a hostile attitude at times. According to the applicant on 15 February 1995 he was working at the Fair Hill primary school as a painter. On that day the union had organised a meeting with the respondent; that is to say, Purvis and the four painters employed by the respondent, to debate the draft enterprise bargaining agreement. This meeting was to take place at about 3.30 pm. At a time near lunch time the applicant recalled that Purvis came to the science room in which the applicant was working and asked the applicant what was happening with all the painters. This appeared to be a reference to the painters having brought the union on site. The applicant responded by referring to the years of employment without being paid redundancy payments; presumably meaning the periods he was stood down in 1993 and in 1994. The applicant had some difficulty with the English language and was limited in fully expressing the matters he relied on. However, I conclude from Patterson's evidence that at the time of the discussions between Purvis and the applicant on 15 February 1995 there was an issue as to the underpayment of wages apart from the rate of pay paid to the applicant for the periods he was stood down.
The applicant's response to Purvis in the science room provoked what the applicant called, "a lot of yelling" much of which the applicant could not understand because Purvis spoke too fast. Purvis on that occasion told the applicant that he was “sacked”. Despite this the applicant continued painting until 3.30 pm when he attended the meeting to debate the enterprise bargaining agreement. The meeting lasted some 45 minutes and was otherwise attended by all the painters, Purvis and Patterson.
At the end of the meeting the applicant alleges, and he is corroborated in this by Patterson, that when he asked Purvis if he Purvis wanted the applicant at work on the next day Purvis said, "no I sacked you". The applicant alleges that these words were yelled at him. There was no explanation given and no further engagement between the parties on the issue. On the following day the applicant sought payment of his wages and was eventually paid $445.48 for the week's work already performed.
He received no compensation in lieu of notice or any other sum for any further entitlements. An employment separation certification (see Exhibit A2) was completed by the respondent and dated 16 February 1995. Amongst other things that document identifies the reason for termination as being "misconduct". The applicant gave evidence that he telephoned and wrote to the respondent (see Exhibit A3) asking the respondent to withdraw the reason given for termination as this was incorrect and precluded the applicant from seeking unemployment benefits. The employer never responded to this request.
I am satisfied on the uncontested evidence of the applicant and Patterson that on 15 February 1995 the applicant's employment as a painter and decorator was unlawfully terminated by the respondent. There was no valid reason given and, in the circumstances alleged, there was no opportunity given to the applicant to defend or explain any conduct alleged against him. Further in terms of the requirements of the Act there was a breach of section 170DB in failing to pay compensation in lieu of notice.
In his opening Mr Barbour asserted that the reason or one of the reasons for terminating the applicant’s employment was his union membership or activities and because of this there was a contravention of s.170DF(1)(b). I am not satisfied on the evidence of the applicant alone that he has shown that the reason or one of the reasons for terminating his employment was connected to his union membership or activities. No evidence was called to show that any application notified to the respondent alleged a termination of employment contravening s.170DF(1)(b). Accordingly I am not satisfied that the onus of proof fell on the employer to show that the prohibited reason was not the reason or one of the reasons for terminating the applicant’s employment (see s.170EDA(2)).
So far as remedies are concerned I am satisfied that reinstatement is impracticable. The employment relationship has clearly broken down in a small work environment and the applicant after some three weeks unemployment following the termination obtained full time employment as a painter and decorator in which employment he is paid a sum exceeding that paid to him by his former employer.
Insofar as there has been a breach of section 170DB of the act the applicant is entitled to two weeks compensation in lieu of notice. I have accepted the submission that the period of employment was a continuous one from November 1992 to February 1995. The damages awarded are therefore $1057.72. I have also allowed one week’s compensation in the sum of $528.86 for the additional loss to the date of re-employment. The orders I make are:
That the respondent pay to the applicant the sum of $1057.72 pursuant to section 170EE(5) of the Industrial Relations Act 1988.
That the respondent pay to the applicant the sum of $528.86 by way of compensation.
I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Millane.
Associate:
Dated:
Representative for the Applicant: Mr Barbour from the Construction,
Forestry, Mining & Energy Union
Solicitor for the Respondent: No Appearance
Date of hearing: 21 July 1995
Date of judgment: 21 July 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - PROCEDURAL FAIRNESS - UNION MEMBERSHIP and Union activities - ONUS OF PROOF
Industrial Relations Act 1988 s.170DB, s.170DF(1)(b), s.170EDA(2), s.170EE(5)
Industrial Relations Court Rules Order 45
PRACTICE AND PROCEDURE - Failure of solicitor on the record to obtain leave of Court to withdraw when required by the Rules of the Court to do so - the absence of leave to withdraw means that solicitor remains as solicitor on the record.
TORRES -v- DAYS PROPERTY PTY LTD
No. VI 1759 1995
Before: Judicial Registrar Millane
Place: Melbourne
Date: 21 July 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1759 of 1995
B E T W E E N :
NORBETTO TORRES
Applicant
AND
DAYS PROPERTY SERVICES PTY LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Millane 21 July 1995
THE COURT ORDERS:
That the respondent pay to the applicant the sum of $1057.72 pursuant
to section 170EE(5) of the Industrial Relations Act 1988.
That the respondent pay to the applicant the sum of $528.86 by way
of compensation.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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