Vizl v Aussie Lobsters Pty Ltd
[1996] IRCA 396
•06 August 1996
DECISION NO: 396/96
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - HARSH, UNJUST OR UNREASONABLE - COMPENSATION
ILONKA MARIA VIZL v AUSSIE LOBSTERS PTY LTD
WI 2540R of 1995
CORAM: MADGWICK J
PLACE: PERTH
DATE: 6 AUGUST 1996
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY
No. WI 2540R of 1995
BETWEEN ILONKA MARIA VIZL
Applicant
AND AUSSIE LOBSTERS PTY LTD
Respondent
CORAM: MADGWICK J
PLACE: PERTH
DATE: 2 AUGUST 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
the respondent pay to the Applicant $5000.00 plus interest in accordance with the Industrial Relations Court Rules;
interest is to run from 1 July 1996; and
the said sums be paid within 28 days.
IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA
WESTERN AUSTRALIA
DISTRICT REGISTRY
No. WI 2540R of 1995
BETWEEN ILONKA MARIA VIZL
Applicant
AND AUSSIE LOBSTERS PTY LTD
Respondent
CORAM: MADGWICK J
PLACE: PERTH
DATE: 2 AUGUST 1996
REASONS FOR JUDGMENT
(Revised from Transcript)
MADGWICK J: This is an application for review of a decision of a Judicial Registrar. Before the Judicial Registrar the proceedings were defended and the employer prevailed. The Judicial Registrar was persuaded upon the evidence that, more likely than not, there was mention of a probation period made to the applicant, and consequently the Act did not apply. Before me the proceedings have been rather different. The respondent employer has chosen not to appear. The only evidence is that of the applicant.
She is a woman in her early 40s, with a daughter, born in 1981. Upon her daughter's reaching something like high school age, the Applicant sought to retrain herself for the workforce. She undertook a course in business studies which she finished in mid-1995. She then set about looking for work and applied for a job with the respondent as a book-keeper. Initially her application was unsuccessful but later a representative of the respondent company contacted her and asked if she was available to start very soon because the person who had been given the job when she first applied had been dismissed.
The applicant was of course very pleased to have this employment. It was a matter of celebration for her, and she started as soon as she could on 27 November 1995. Her employment lasted only until 8 December when, five minutes before her normal finishing time, her supervisor, Mr Harland (the respondent's accountant) told her that his superior, Ms Elizabeth Norton (a member of the family who seem to have controlled the respondent company) considered that matters were proceeding too slowly in the office. He told her that he was sacking her, at Ms Norton's request.
Ms Vizl has given evidence that she had not previously been criticised, nor had anyone drawn to her notice any dissatisfaction with her work. She says that the work was fairly simple and straightforward and, despite her relative lack of experience with it, she feels she coped with it quite satisfactorily. There were other difficulties with the throughput of the data entry work, including that the computer and/or the software malfunctioned on a couple of occasions and experts had to be brought in to try to make it operative. Anybody who has worked with computers will understand the likelihood of this. Ms Vizl protested to Mr Harland. She told him that he knew that the delays were not her fault and that there were other reasons for slowness. He told her that he knew that, but gave her to understand that he was acting on instructions with which he did not necessarily agree.
She had been paid at the rate of $10 per hour and she was paid, as I understand it, up to the time of termination but not paid any notice.
On the evidence before me there was no valid reason for a termination. She was not, as the Act requires, given an opportunity to respond to the allegations about her performance, and there was no reason she ought not to have been given that opportunity.
The termination of her employment was harsh, unjust or unreasonable. Ms Vizl had been promised, on the evidence before me, that after Christmas 1995 she would be trained in the more intellectually demanding and skilled aspects of the work of a bookkeeper, it having been put to her that the period up to Christmas was - as one might expect for a firm selling lobsters - a very busy time of the year, and the necessity during that time was for a lot of data entry work. She lost the opportunity to be so trained, and, her work experience, which ought to have improved her general market employability, has turned out to be something of a liability. If she is truthful she must tell a would-be employer that she lasted less than a fortnight before she was dismissed. However much she might protest her innocence to a prospective employer, most prospective employers would give themselves the benefit of the doubt and shy off her. On the material before me, the way she was treated was quite unfair, indeed reprehensible.
She has acted reasonably in seeking work. She resumed her receipt of the single parent's pension but has sought to supplement it by part-time cleaning work and by other part-time clerical work, including some at a very low rate per hour. She is in the process of attempting to acquire a practical business person's skills so that she can commence a business trading in second-hand children's equipment. She seems to have worked for approximately 27 hours per week in the short time that she was employed by the respondent, but it was anticipated that after Christmas the job would be full-time and she was looking therefore to be paid presumably something like $350 per week.
She has submitted that $5000 would be reasonable compensation. I think this is a modest and reasonable approach to the matter and I see no reason why she should not be awarded it. I will treat as notionally included in it compensation for the ungiven notice which she ought to have had under the Act.
I wish to stress that this matter proceeded differently from the way it did before the Judicial Registrar. On the material before me, the only possible probation period was 2 days for which Ms Vizl had volunteered in good faith to work without pay.
The respondent is ordered to pay $5000 together with interest thereon at the rate contemplated by the Industrial Relations Court rules, as from 1 July 1996, and to pay the said sums within 28 days.
I certify that this and the preceding 3 pages are a true copy of the Ex Tempore Reasons for Judgment of His Honour Justice Madgwick.
Associate:
Dated: 2 August 1996
APPEARANCES
Representative for the Applicant: Self
Representative for the Respondent: No appearance
Date of hearing: 2 August 1996
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