Vicki Marie Miller v Jill Taylor & Associates Pty Ltd
[1995] IRCA 683
•29 Nov 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim for UNLAWFUL TERMINATION - whether VALID REASON - COMPENSATION - associated JURISDICTION
Industrial Relations Act 1988 Ss 170DB, 170DE, 170DF(1)(e), 170EA, 170EDA, 170EE
Annual Holidays Act 1944 (NSW)
Long Service Leave Act 1955 (NSW)
VICKI MARIE MILLER -v- JILL TAYLOR & ASSOCIATES PTY LTD -
NI95/2490
BEFORE: R D FARRELL JR
PLACE: PERTH (HEARD IN SYDNEY)
DATE: 29 NOVEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. NI 95/2490
BETWEEN: VICKI MAREE MILLER
- Applicant
AND: JILL TAYLOR & ASSOCIATES
PTY LTD
- Respondent
MINUTE OF ORDERS
BEFORE: R D FARRELL JR
PLACE: PERTH (HEARD IN SYDNEY)
DATE: 29 NOVEMBER 1995
THE COURT DECLARES THAT:
The termination of the employment of the applicant contravened Sections 170DB, 170DE and 170DF of the Industrial Relations Act 1988.
AND THE COURT ORDERS THAT:
The respondent pay to the applicant damages pursuant to Section 170EE(5) in the sum of $1,838.48.
The respondent shall pay to the applicant compensation pursuant to Section 170EE(2) in the sum of $8,500.
The respondent shall pay to the applicant the sum of $10,000, which was not but ought to have been paid to the applicant pursuant to the Annual Holidays Act 1944 (NSW) and pursuant to the Long Service Leave Act 1955 (NSW)
The respondent shall pay to the applicant each of the amounts referred to above within 14 days of the date of this order.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. NI 95/2490
BETWEEN: VICKI MAREE MILLER
- Applicant
AND: JILL TAYLOR & ASSOCIATES
PTY LTD
- Respondent
BEFORE: R D FARRELL JR
PLACE: PERTH (HEARD IN SYDNEY)
DATE: 29 NOVEMBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, Vicki Maree Miller ("Ms Miller"), by the respondent, Jill Taylor & Associates Pty Ltd (“JTA”). Reinstatement is not sought.
There is also a claim under the associated jurisdiction of the Court, pursuant to Section 430 of the Act, for unpaid entitlements under the Annual Holidays Act 1944 (NSW) and under the Long Service Leave Act 1955 (NSW).
This application was heard with another application for compensation under Section 170EA of the Act, arising from the termination of the employment of Christine Maria Stani (“Ms Stani”) by JTA and arising out of largely the same circumstances as this application.
I refer to my reasons for judgment in that matter, with which these reasons should be read.
There was no appearance by the Respondent. Having satisfied myself that the Respondent was properly notified of the time and place of hearing by the Court, I proceeded to hear the application in the absence of the Respondent.
Factual Background
The factual background is comprehensively set out in the reasons for judgment published in Ms Stani’s claim.
Ms Miller commenced work with JTA on or about 1 October 1987, as a part time publicity consultant. I am satisfied that she was an employee of JTA, rather than having merely been contracted to provide services. In the 1994/1995 financial year, Ms Miller’s total salary was $23,900.
Ms Miller was given no reason for the termination of her employment. Nor was she given any notice of her termination, or pay in lieu of notice.
Damages for Failure to Give Notice
As an employee of more than 5 years standing, aged less than 45 years, Ms Miller was entitled under Section 170DB of the Act to at least 4 weeks notice of termination, which she was not given. Accordingly I will make an order for damages in lieu of notice under Section 170EE(5) of the Act for $1,838.48, being an amount equal to 4 weeks’ salary.
Unlawful Termination
Ms Miller contended that there was no valid reason for the termination of her employment, as is required under Section 170DE(1) of the Act, and further, that the termination was in breach of Section 170DF(1)(e) of the Act, because Ms Miller’s participation in proceedings against JTA involving alleged violations of laws and regulations was a reason for termination.
Section 170EDA confers the onus on JTA to satisfy the Court on the balance of probabilities that there was a valid reason for the termination of Ms Miller’s employment, and that Ms Miller’s participation in proceedings against JTA involving alleged violations of laws and regulations was not a reason for termination.
JTA led no evidence to meet that onus, and there was nothing in the evidence led by Ms Miller to satisfy me of those matters.
Accordingly, I find that JTA unlawfully terminated Ms Miller’s employment in breach of Sections 170DE(1) and 170DF(1)(e) of the Act.
Compensation
Ms Miller seeks an order requiring JTA Company to pay to her compensation. I have proceeded on the basis that she would have received remuneration of $11,950 in the 6 months after the date of termination, had JTA not terminated her employment, and that $11,950 is therefore the maximum award of compensation I can make.
In assessing Ms Stani’s loss flowing from the unlawful termination of her employment, I have applied the principles discussed in the reasons for judgment published in Ms Stani’s claim.
While Ms Miller had not at the date of hearing on 6 October succeeded in finding alternative permanant employment, she had succeeded in obtaining limited free-lance work. She was also receiving payments from Unilever on an identical basis to Ms Stani.
In all the circumstances, I will award a sum of $8,500 as compensation under Section 170EE (3).
Associated Jurisdiction
Evidence was led which satisfied me that Ms Miller had accrued entitlements to annual leave and to long service leave in the course of her employment. These entitlements are summarised in Exhibit M10. She received nothing in lieu of these entitlements at the time her employment was terminated.
Ms Miller seeks an order that JTA pay her the amount claimed in relation to her accrued and unpaid annual leave and long service leave entitlements, under the associated jurisdiction of the Court conferred by Section 430 of the Act.
I am satisfied that Ms Miller's claims for accrued annual leave and long service leave entitlements unpaid on her dismissal are associated with Ms Miller's claim of unlawful dismissal. Accordingly I find that the Court has jurisdiction pursuant to section 430 in respect of the claims to grant the remedy sought.
There was sufficient evidence before me to satisfy me as to the quantum of the claims, which amounted to a figure in excess of $10,000. As my jurisdiction as a judicial registrar is limited to $10,000, Ms Miller limited her claim to that sum.
I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of Judicial Registrar R. D. Farrell.
Associate
Date:
Counsel for the applicant: Ms C McArdle
Solicitors for the applicant: Phillips Fox
No appearance by the respondent
Hearing date: 6 October 1995
Judgment date: 29 November 1995
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