Uzcateguigaymon v Hospitality Horizons Pty Ltd trading as "Hospitality Horizons"

[1998] IRCA 34

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

TERMINATION OF EMPLOYMENT – alleged resignation – alleged unlawful termination of employment – meaning of casual employee employed for a short period - VALID REASON – not satisfied valid reason for termination of employment established after finding made that applicant did not resign – CONDUCT AND PERFORMANCE – No allegation made about conduct – TERMINATION PAY – Award for failure to give required Period of Notice – REINSTATEMENT – Impractical to reinstate applicant – applicant suggests unable to work with former supervisor – applicant still bears a sense of injustice which will make reinstatement impracticable – applicant resides in different state – Funding for former position withdrawn – DAMAGES – COMPENSATION – Damages assessed for period taken to recover salary position in new employment – PRACTICE & PROCEDURE – Advisable to order disclosure of relevant documents at Directions Hearing – Cost of forensic examination of application lodged by applicant not justified in circumstances of case.

Workplace Relations Act (Cth) 1996 (formerly known as Industrial Relations Act 1988) ss 170CC, 170DB, 170DE(1), 170EAA(1)

Industrial Relations Regulations (Cth) 30B

Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371
Gibson v Bostik Pty Ltd (1995) 60 IR 1
Capay Holdings Pty Ltd t/as Cuddles Long Day Centre) v Maree Slattery, unreported IRCA Full Court 11 December 1996 decision no. 601/96
Lachelle Uzcateguigaymon v Hospitality Horizons (1996) unreported IRCA decision by McILwaine JR, dated 20November 1996
Hospitality Horizons Lachelle v Uzcateguigaymon (1997) 75 IR 206
Qantas Airways Pty Ltd v Christie (1998) HCA 18

LACHELLE UZCATEGUIGAYMON  V  HOSPITALITY HORIZONS PTY LTD

TRADING AS “HOSPITALITY HORIZONS”
(ACN 003 742 738)

NI  1153/96

MCILWAINE JR

SYDNEY
15 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 1153  of   1996

BETWEEN:	LACHELLE  UZCATEGUIGAYMON APPLICANT
AND:	HOSPITALITY HORIZONS PTY LTD TRADING AS “HOSPITALITY HORIZONS” (ACN 003 742 738) RESPONDENT
JUDICIAL REGISTRAR:		MCILWAINE
DATE OF ORDER:		15 OCTOBER 1998
WHERE MADE:		SYDNEY

MINUTES OF ORDER

The Court declares:

1. The applicant was not a casual employee engaged for a short period by the respondent.

1. The applicant was employed by the Respondent from 5 July 1995 to 8 January 1996.

1. The respondent has contravened section 170DB of the act in that wages for one week was not paid in lieu of the period of notice required by the Act.

1. The respondent has contravened Section 170DE(1) of the Act in that it did not have a valid reason for the termination of the employment of the Applicant on 8 January 1996.

1. It is impractical to reinstate the applicant in any position with the respondent.

1. It is appropriate to award compensation to the applicant in the sum of four thousand eight hundred and forty-five dollars ($4,845).

The Court orders:

1. The respondent pay to the applicant within seven days the amount of five hundred and ten dollars ($510).

1. The respondent pay to the applicant within twenty-one days the amount of four thousand eight hundred and forty-five dollars ($4,845).

1. Any sum paid within twenty one days to the Australian Taxation Office, which the respondent is obliged to pay on behalf of the applicant or which can lawfully be made on her account, in respect of the sums ordered in paragraphs 7 & 8 shall be pro tanto satisfaction of the obligations of the respondent under Orders 7 & 8.

Kate Benson
Legal Assistant to
Judicial Registrar McILwaine

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 1153 of 1996

BETWEEN:	LACHELLE  UZCATEGUIGAYMON APPLICANT
AND:	HOSPITALITY HORIZONS PTY LTD (ACN 003 742 738)  TRADING AS “HOSPITALITY HORIZONS” RESPONDENT

JUDICIAL REGISTRAR:	MCILWAINE
DATE:	15 OCTOBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

APPLICATION

This matter arises out of an application by Lachelle Uzcateguigaymon claiming unlawful termination of her employment under Division 3, Part VIA, of the Industrial Relations Act 1988 (“The Act”) now the Workplace Relations Act, 1996 against her former employer, Hospitality Horizons Pty Limited.

BACKGROUND

The history and background to this matter is set out in detail in “My Reasons for Decision” published on 20 November 1996.  Pages 1 to 7 of that judgment provide an adequate outline of the circumstances of the case and of the evidence of the applicant and Ms Carr.  It should be read in conjunction with this decision.  After the evidence of the applicant and Ms Carr had been given the case for the applicant was closed.  Mr Britt, advocate for the respondent then submitted:
“The applicant’s case could not succeed in this court because the period of employment of the applicant failed to exceed the requirements of regulation 30B(3) of the regulations under the Act.”

The proceedings were then adjourned for argument and decision.  In that decision I made the following remarks:

“In this case the termination occurred past the anniversary of the six month period.  However, it occurred during a time in which the applicant was not in the employment of the respondent but was engaged to renew her contract of employment on 11 January 1996.

It is sufficient for me to determine that “a period of at least six months” of employment had not been completed and could not expire until after 11 January 1996 when the applicant was due to commence “her next sequence of periods of employment.”  Had, for instance, the applicant commenced her employment on 11 January 1996 and the respondent then said on that day or on 12 or 13 January 1996, “we have a new job club leader and we want you to leave,”  then the applicant would have had the benefit of the Act.  In the facts as they occurred, the applicant did not and is therefore excluded from the operation of Division 3 of Part VI(A) of the Act.

Although the evidence is at an early stage, the most appropriate course is that I dismiss the application now.

I confirm that I remain openminded on whether or not there was a resignation.  The testimony of Ms Carr provides some independent although indirect and circumstantial support for the applicant’s version.  Although the evidence of Ms Carr may be persuasive.  I have to acknowledge that I have not yet heard the evidence of the respondent on this issue.  I do not have to decide this issue now and it seems to me I ought not to express any further view in case there is a review of this decision and the matter may be referred back to me for further hearing.  I also make no finding as to the credit of the applicant on the apparent alteration on the application form.

REVIEW

The applicant sought a review of my decision which was determined by Madgwick J as follows:

“My conclusion is that the case seems to have gone off as it did because the applicant employee did not appreciate the significance of the nature of her “engagement”, and consequently her legal representative did not argue that she had never been “engaged on a casual basis for a short period.”  It seems to me that this is a very arguable question, and if, after proper factual examination of it, the judicial registrar should conclude that she never was in fact so engaged, then regulation 30B would fail to exclude her from the operation of the relevant provisions of the Act.

In my opinion, both parties should have the opportunity to place before the judicial registrar any additional material they wish to on that issue.  In addition, as the employer was promised by the judicial registrar, the employer should have the opportunity to put any additional material before the court on any other issue that it wishes.

The application for review is upheld.  I quash the judicial registrar’s decision, and I remit the matter to him for further determination in accordance with these reasons and otherwise.”

HEARING
On return of the matter for hearing it appeared that the applicant having moved to Queensland could not be present.  An offer was made to investigate the possibility of utilising the video conference facilities of the court to enable the applicant to participate in the trial.  This arrangement was not sought by her solicitor and the case continued in her absence.

The case for the applicant, by agreement between the parties, consisted of the tendering of the evidence, transcript of the proceedings and the cross examination of the applicant together with that of Miss Carr.  Other documents were tendered in evidence.

EVIDENCE OF MANAGING DIRECTOR

Mr Peter Mason then gave evidence as the Managing Director of the Respondent.  He had known the applicant through the work that she had done for his company through her entity:  “Sebastian Vocational Guidance Services.”  Under the auspices of this organisation she would prepare vocational guidance reports for the respondent on a fee per report basis.  The respondent had stopped using her service in November allegedly because of the lack of formal incorporation and arrangements with respect to matters such as insurance and workers compensation.  Nevertheless he praised her job club leadership skills and conceded she was obtaining good outcomes at Petersham.  He claimed the applicant was employed as a casual, although he also admitted it was not the practice of the respondent to put in writing the terms of any engagements.  Initially arrangements with the Commonwealth of Australia were being confirmed on a six months by six months basis, however at the time he was giving evidence in October 1997 it was then on a quarterly basis.  The original contract had been for a period up to 30 June 1998, however they were now aware that it was to be closed by 30 November 1997.  He added that the job clubs were conducted for a period of three weeks with a further week for administration purposes. He pointed out that the normal terms of the agreement were that the parties would work at least 30 hours a week although some persons would carry out the job on a job-share basis.  When they are engaged it has to be confirmed with Department.

He also suggested that he had had a number of previous conversations with the applicant.  Mr Mason maintained that during these casual conversations the applicant maintained that she wanted to leave the job club and move over towards doing more vocational assessments because her training was in psychology and that was where she felt her skills lay.  He recalled being told by Mr Lambert in a brief conversation in late December that the applicant had resigned.

EVIDENCE OF ADMINISTRATOR
Mr Phillip Garfield Lambert also gave evidence as the Administrator and a Director of the respondent, he commenced with the firm in March 1993 as a program tutor and then became a Program Co-ordinator.  He became a Director of the Company in November 1994.  He initially interviewed the applicant in June 1995 and confirmed there was no offer of employment made until late in that month.  He testified that the applicant was offered the position of job club Leader at Petersham site although it was not made in writing.  He maintained that he had told the applicant that she was casual.

Mr Lambert testified that on 20th December 1995 he had a meeting with the applicant:

“Well the meeting went for 20 minutes, and we covered, I guess, a couple of issues but the whole point of the meeting, I guess because Lachelle initiated it, was to discuss what she wanted to do with her employment with Hospitality Horizons.  She raised concerns about being a job club leader and that she wasn’t really enjoying it, it wasn’t really rewarding her, and there wasn’t enough challenge left in it so that was like the basis of her need to speak with me.”

It should be noted that he does not suggest the applicant used the word “resign”.  He testified that he had mentioned several other projects to her but these were difficult because of her disability and her inability to travel.  (The applicant is a below the knee amputee).  Mr Lambert said that he really wanted to keep Lachelle but he had the feeling that she was, “burnt out”, and he wanted to explore as many alternatives as possible.  He then said:

“So I basically said What is the solution?  And she said that she would be happy to remain as a Job Club Leader at Petersham until a suitable replacement was found.”

This cannot be construed as a resignation statement by the applicant as it is more in the nature of a request for a transfer to other duties within the organisation.  He maintained that he had said to her that there was no shortage of suitable tutors.  His version of the conversation with Mr Mason was:

“Following the meeting did you have a discussion with Mr Mason?  Yes.  When Lachelle actually entered the office I was about to go into a meeting with another tutor.  That was a booked meeting so really without wanting to push Lachelle out of the door I did have another meeting to set up so twenty minutes was a pretty good time with Lachelle.  I quickly put my head in the door so as to speak to Peter’s office to say that “Lachelle’s going to be leaving us, I’ll talk to you later, and then went into another meeting.”

Mr Lambert then testifies: 

“Now did you confirm the applicant’s resignation in writing?  Did I confirm?

The applicant’s resignation in writing?  I, early in January 1996 issued a letter to Lachelle notifying her that a replacement had been arranged.  To answer your question it wasn’t in strictly those terms.”

I found Mr Lambert’s evidence vague as to the words said by the applicant upon which he relied to consider that she had given him a resignation.  After the termination there was some discussion with the applicant about reinstatement, but not with the Petersham Job Club.  These approaches were rejected as the applicant was to be replaced by a person transferring from another program.  Mr Lambert also maintained that he had no concern with the applicant’s work as she was “client focussed.”  Mr Lambert was then cross examined by the Solicitor for the Applicant.

After the cross examination had been completed he was again examined by the advocate for the respondent:

Mr Britt:  In relation to her not giving you notice of leaving, she was a casual employee, was she not?---That’s right, yes.

I take you to the events of 20 December, you were asked some questions by my friend, you are adamant that she resigned at that meeting, are you?---The result of our meeting was a negotiated resignation.

And when would she leave?---That was not determined, like, a fixed date was not determined, it was determined that she would leave, she would finish her job when a suitable replacement was found.

And so you subsequently found a suitable replacement did you?---That’s right.

And following that, you notified the applicant?---Yes.  I sought to give her as much notice as was practicable, that was possible.”

AGREEMENT WITH COMMONWEALTH OF AUSTRALIA
There remain three key issues to be determined in this matter:

1. Is the applicant excluded from the benefit of the legislation because she was “a casual employee engaged for a short period?”

1. Did the applicant resign her position?

1. Was there a valid reason for termination?

With respect to the first issue I take as the starting point the observation of Madgwick J in paragraph 8 at page 3 of his judgment:

“If, as a matter of ordinary language, and having regard to the object of the Convention to protect employees against invalid [that is, unsound or unjust:  see Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, Western v Union Des Assurances De Paris (Industrial Relations Court of Australia, Madgwick J, 17 December 1996)] reaosns for termination of their casual employment, the employee concerned cannot fairly be said to be “engaged on a casual basis for a short period”, then, notwithstanding that the employee may fall within regulation 30B(3), the regulation will simply not take effect: section 170CC.  For example, in this case, if the applicant had been engaged to perform work for an indefinite period for six hours per day five days per week, and did so for five and a half months (even with possible short breaks between the commencement of job clubs), it may be difficult to say that she was “engaged on a casual basis for a short period”, even though she might otherwise be disqualified by regulation 30B(3) on account of the requirement that there might be “a sequence of periods of employment during a period of at least six months”, in the sense that there be successive periods of employment extending beyond six months as explained by Moore J in Andison.”

Exhibit R2 is a document headed:

“PERIOD OF CONTRACT AGREEMENT

The agreement purports to be made on 27 June 1995 between Commonwealth of Australia (‘the Commonwealth’), acting through the Department of Employment, Education and Training (‘the Department’) and Educational Horizons (‘the organisation’).”  It is not in dispute that this is an entity controlled by the respondent or its officers.  The purpose of the agreement is “the provision of services as part of the Department’s Labour Market Programs,” by the organisation.  The respondent agreed to provide a maximum of twelve (12) Job Clubs per year until 30 June 1998 at times and at venues specified in the agreement.

This document was not in evidence before me at the initial hearing.  It is not possible to determine when the legal representatives of the applicant first became aware of the existence of the document.  Regrettably, the normal order for disclosure of relevant documents does not appear to have been made at the initial directions hearing.  It is clear from this document that in June 1995, the respondent did not have in contemplation that the “Job Clubs” would only be for a short period.  The applicant was clearly employed for the task of Job Club Leader and she had been nominated to the Department for this purpose.  This was no casual position.

The evidence in this case does not demonstrate that the engagement of the applicant as job club leader was to be informal irregular uncertain or not likely to continue for any length of time.  (See Capay Holdings Pty Ltd t/as Cuddles Long Day Centre) v Maree Slattery, unreported IRCA Full Court 11 December 1996 decision no. 601/96).  For these reasons there will be a declaration that the applicant was not a “casual employee engaged for a short period” by the respondent.

TERMINATION AT THE INITIATIVE OF THE EMPLOYER.  DID THE APPLICANT RESIGN?
A key issue, upon which the applicant bears the onus of proof was whether there was a termination at the initiative of the employer.  The respondent, through Mr Lambert asserts that the termination of the employment of the applicant was not at its initiative as the applicant resigned in a discussion immediately before the Christmas leave commenced on Saturday 23 December 1995.

The direct evidence arises out of the context of the discusssions between Mr Lambert and the applicant.  I have sufficiently outlined, in my earlier remarks, the version given by Mr Lambert.  The applicant and Mr Lambert were able to provide secondary evidence of a corroborating or supporting nature as to what had occurred in their private conversation through the evidence of Ms Carr and Mr Mason.

Before considering this issue further it is necessary to deal with a submission by Mr Britt who asks me to draw an adverse conclusion about the evidence of the Applicant because of an alteration which appears on the application filed by the applicant in the District Registry of the court on 12 January 1996.  The inference I am asked to draw is that the applicant falsely suggested 6 June 1995 as the start of her employment in order to ensure the period of her employ exceeded the six months period specified in the Regulations.  The Application makes a claim that the Applicant first started work on 6 June 1995.  There is clearly an alteration of the month and possibly the day. It is not as clear with the day. A close examination of the document from both sides does not enable me to definitively conclude that the numbers were altered in any particular way. As white correcting fluid was not used it is impossible to read what was originally written by looking at the numbers through the reverse side of the document.  It may be possible to more accurately resolve this issue by a forensic examination by a handwriting expert.  The cost of such an expert report is prohibitive and the circumstances do not justify such a requirement.  In an unsigned document dated 10 January 1996 attached to the application the applicant also maintains 6 June 1995 as the start of her employment.

“Exhibits  “B", “C”, and “F” arose out of the cross examination of the Applicant by Mr Britt. These three documents are loose-leaf pages taken from the Diary or weekly planner of the Applicant.  On the page headed 5-11 June there is a note in the handwriting of the applicant:  ”ring Phil Lambert 2111001”.  This is placed in the space allowed to accommodate the entry for Tuesday 6 June 1995 in the weekly planner. This notation is consistent with the evidence of the Applicant that there was an initial telephone conversation. It also raises a contrast with her Application, which justified the cross-examination.  It is not necessary to draw such an adverse conclusion against the applicant for the purpose of determining these proceedings but I am satisfied that the Applicant did not commence work at the Job Club, established by the Respondent, until Wednesday 5 July 1995.  See exhibit “C” and in particular the heavy arrow in blue pen which suggests that the reference to “Job Club 373 Parramatta Road."and other entries should have been recorded under the Wednesday. The hand written attachment to the main contract recording the dates of the Job Clubs supports this date.

Exhibit “F” covers the week 18-24 December it is not nearly so conclusive as to the date of the meeting between the applicant and Mr Lambert. On either version 21, 22 or earlier in December is possible.  It is also important to note that a letter (Exhibit 5) dated 17 October 1995 which was signed by Mr Lambert clearly states that :"The main Office of Hospitality Horizons will be closed for the Christmas /New Year period from 23 December 1995 to 7 January 1996. You are advised to ensure that all reports, and other matters due to be settled, are submitted or claimed well ahead of this shutdown time to ensure that everything is settled."  It is most probable that the disputed conversation occurred either just before or on the day of the Christmas party.

The entries in her diary for 18-24 clearly reflects the office turmoil which usually occurs in the last business week before the Christmas break. The fact that both the applicant and Mr Lambert are vague and unclear in their recollection of date and events should not reflect adversely on either of them.  I am prepared to accept the denial of the applicant that these alterations were done to falsify her claim. Although it is not always the case, particularly when cash payments are made, most respondents are able to prove starting and finishing times. If the intention was to falsify the claim it was doomed to failure from the outset.

In Qantas Airways Pty Ltd v Christie (1998) HCA 18, McHugh J cites with approval a decision of the Full court:

“In Mohazab v Dick Smith Electronic Pty Ltd (No.2), the Full Court of the Industrial Relations Court interpreted the phrase “Termination of employment at the initiative of the employer” in accordance with the general rules of treaty interpretation found in Arts 31 and 32 of the Vienna Convention on the Law of Treaties 1969.  The Full Court held that “Termination of employment at the initiative of the employer” meant a termination that was brought about by an employer and to which the employee had not agreed.  The Court held that a termination occurs when “the act of the employer results directly or consequentially in the termination of the employment.”

It said:

“That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

There is no dispute between the parties that in their telephone conversation of 8 January 1996 the applicant made it quite clear that she had not resigned.  After he became aware of her view,Mr Lambert should have held proper discussions with her and the matter probably could have been resolved satisfactorily.  I am satisfied that had the Respondent taken a different action the applicant probably would have remained in the employment relationship.  On balance I am prepared to accept the version of the events given by the applicant.  I am satisfied that there was clearly a termination at the initiative of the respondent.

WAS THERE A VALID REASON FOR TERMINATION

Under the provisions of the Act, the employer carries the burden of showing that at termination it had a valid reason or reasons for bringing the employment to an end summarily.  In his decision in Selvanchandran v Peteron Plastics Pty Ltd (1996) 62 IR 371, Northrop J describes the meaning of this phrase in the following way:

“Section 170DE(1) refers to “a valid reason, or valid reasons,” but the Act does not give a meaning to those phrases or the adjective “valid”.  A reference to dictionaries shows that the word “valid” has a number of different meanings depending on the context in which it is used.  In the Shorter Oxford Dictionary, the relevant meaning given is:  “2.   Of an argument, assertion, objection, etc.  well founded and applicable, sound, defensible:  Effective, having some force, pertinency, or value.”  In the Macquarie Dictionary the relevant meaning is “sound, just, or well founded; a valid reason.”

In its  context in s170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded.  A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1).  At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business.  Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them.  The provisions must “be applied in a practical, commonsense way to ensure that “the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bostik Pty Ltd (1995) 60 IR 1, when considering the construction and application of s170DC.”

The defence of this case by the respondent was strongly argued on the basis that the applicant had resigned.  As I have found against the respondent on this issue it follows that the respondent is required to prove that at 8 January 1996 it had a valid reason for the termination of the applicant.  On this date the applicant made it clear in no uncertain terms that she had not resigned.  This left Mr Lambert in the difficult position of having two people for the one job club.  It is probable that he expected to be able to terminate the applicant because of the commonly held view in industry that if you attach the word casual or designate the position by that name the employee has virtually no industrial rights at all.  He would expect no consequences to his organisation from such a decision.  He was faced with the difficulty that he had arranged to transfer an other employee to the Petersham Job Club before confirming with the applicant her future intentions.  I am not satisfied that at 8 January 1996 this could properly be established by the respondent as a valid reason for her dismissal.  There was no evidence that he sought to have the new leader reconsider the matter and defer taking up the offered position to allow the applicant to complete the January Job Club.  There would seem to be little difficulty with such an approach as the office was closed until 7 January 1996 and on his own evidence he could not have made these arrangements before 20 December 1995.  Such a relatively short period does not give the case for the respondent any proper basis for establishing that the decision to terminate the applicant was sound or well founded.  Moreover it was never suggested in the case for the respondent that the change had to be made with such haste because it was not the intention of the applicant to return to the January 1996 Job Club.

The evidence in this case leads me to the conclusion that there were not just grounds for the decision to terminate the employment of the applicant.  There was not a valid reason to terminate the employment of the applicant.

REINSTATEMENT
The type of work the applicant was doing for the respondent is no longer funded by the government.  The applicant does not seek reinstatement because of her personal hurt as a result of the nature of her dispute with the representatives of the respondent.  A more compelling practical reason is that she moved to Queensland.  Reinstatement in this case is impractical.

COMPENSATION
There being this finding and the contravention of the act it follows that it is necessary to assess the amount of compensation which should be ordered.  In a forthright way the applicant conceded during her testimony that by 26 February 1996, she had again established herself at the level of salary she was on with her employment with the respondent.  On one view of the matter after the discussion on 9 January 1996 it may have been that the applicant would have agreed to leave at the end of the job club which was to start on 11 January 1996 and conclude four weeks later.  The difference between the two periods is a little over two weeks.  It is appropriate that the applicant have the benefit of the two week period.  The evidence from the applicant was that she worked for 30 hours per week at $17.00 per hour being $510 per week gross.  There may be some reservation on the part of the respondent that this is the correct hourly rate.  In the circumstances this is an appropriate amount to use to assess the compensation payable.  Accordingly I propose to allow a period of six weeks.  In addition the applicant was without income from 22 December 1995 a period of three and a half weeks.  The amount of compensation considered to be appropriate is a total of nine and a half weeks which is  four thousand eight hundred and forty-five dollars($4,845).  In making this assessment I am conscious that I have not found it necessary to calculate an amount for the distress caused to the applicant by her termination.

It can be seen from the findings that there was a termination of the employment of the applicant by the respondent which has contravened Section 170DB(2) and an award of one weeks wages should also be paid to the applicant.

There will be judgment and orders accordingly.

I certify that this and the preceding 11 pages
Is a true copy of the reasons for the decision of
Judicial Registrar McILwaine.

Associate:        Kate Benson
Dated:             15 October 1998

APPEARANCES
Solicitor for the Applicant:  Mr Angus Harper

Solicitors for the Applicant:  Harpers Lawyers

Employers Advocate for the  Respondent:  Mr Anthony Britt

Employer’s organisation for the Respondent:              Australian Chamber of Manufacturers

Dates of Hearing:  3.7.96, 4,6 & 11.11.96