Wayne Phillip Murray and Avenza Pty Ltd (Trading as Big Sam's Rock Cafe)

[1994] IRCA 101

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI912 of 1994

BETWEEN:

WAYNE PHILLIP MURRAY
Applicant

AND

AVENZA PTY LTD
(Trading as BIG SAM’S ROCK CAFE
Respondent

MINUTES OF ORDER

31 October 1994  Judicial Registrar Millane

THE COURT ORDERS:

1. A declaration that the termination by the respondent of the employment of the employee contravened Division 3 Part VIA of the Industrial Relations Act 1988;

2. That the respondent pay to the applicant the sum of $230.00 as damages in respect of the respondent’s contravention of section 170DB of the Industrial Relations Act 1988;

3. That the respondent pay to the applicant compensation of $3,000.00 within 21 days of the date of this judgement.

AND THE COURT DIRECTS:

1. The Registrar to enter these orders and to forward sealed copies of these orders to the applicant and the respondent respectively.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI912 of 1994

BETWEEN:

WAYNE PHILLIP MURRAY
Applicant

AND

AVENZA PTY LTD
(Trading as BIG SAM’S ROCK CAFE
Respondent

REASONS FOR JUDGMENT
(Delivered Ex Tempore - Revised from Draft Transcript)

31 October 1994  Judicial Registrar Millane

This application is made pursuant to section 170EA of the Industrial Relations Act 1988 by Wayne Phillip Murray, the applicant. The named respondent is Avenza Pty Ltd, trading as Big Sam’s Rock Cafe. The applicant appears in person, there being no appearance for the respondent. The applicant seeks:

(a)An order declaring that the termination by the respondent of the employment of the employee has contravened Division 3 of Part VIA of the Industrial Relations Act 1988 (“the Act”);

(b)an order that the respondent pay compensation to the employee; and

(c)an order that the respondent pay any moneys due to the employee.  Superannuation, holiday pay, three nights’ pay in lieu of notice.

I am satisfied that the application and copies of the two affidavits relied upon by the applicant have been served upon the respondent, and further, that the respondent has been notified of the final hearing date in this court today.  An affidavit of service  of the application and the applicant’s supporting affidavit was sworn by the applicant on 6 July 1994 and filed on 8 August 1994.  The matter was listed for directions before Registrar Agnew on 16 August 1994, on which date the Registrar made orders including the following orders:

1. The applicant file and serve an affidavit giving compensation particulars by 24 August 1994;

2. the respondent file and serve a notice of appearance/affidavit complying with order 75 rule 3 in response on or before 6 September 1994;

3. direct the registry to draw and enter today’s order.  The applicant will collect order when filing his affidavit;

4. direct the applicant to serve order on respondent as soon as practicable.

On 23 August 1994 the applicant swore a further affidavit in compliance with the Registrar’s orders and such affidavit together with its exhibit, Exhibit “A” was filed with this Court on the same date.  The applicant states on oath that a copy of this further affidavit was served by him taking it to the respondent’s address and handing it to an owner of the business, Mr Frederick Johnson, who informed him that he “would make sure someone attended Court”.  As at 30 October 1994, the applicant has observed the respondent’s business premises at 106 Main Street, Lilydale, in the State of Victoria, open and operating.

Further, the applicant gave sworn evidence that he personally served the application and his supporting affidavit on Mr Frederick Johnson, the executive principal and owner of the respondent’s business, and the person who signed the company’s pay cheques.

There was no appearance for the respondent at the hearing despite the forwarding to the respondent by the registry of a copy letter dated 20 September 1994 advising the respondent of the hearing time, date and address.  Accordingly, I proceeded to hear and determine the application in the respondent’s absence.

The applicant is 38 years of age, and was employed by the respondent as a head chef at its premises at 106 Main Street, Lilydale.  The applicant has confirmed the contents of his affidavits filed in this Court, and in particular relies on the affidavit sworn by him on 23 August 1994, together with exhibit “A” which comprises:

1. A written detailed explanation of his terms of employment, the dates of employment, moneys received, alterations to his employment hours and the applicant’s belief as to the reason for his termination.;

2. a computer print out of the applicant’s wages and salary;

3. a 1994 group certificate showing a gross income between 1 October 1993 and 19 June 1994 of $13,424.80;

4. a copy of the applicant’s host-plus superannuation fund print out showing that no employer contributions have been made to this fund since 14 September 1993 for the period covered by that print out ending on 31 December 1993;

5. the employment separation certificate dated 23 September 1993 apparently completed and signed by the respondent.  The certificate shows, amongst other things, that the respondent terminated the applicant’s employment on 22 June 1994 because of “unsatisfactory work performance” and that further, the applicant was “terminated due to declining level of performance”.  The certificate confirms that the respondent paid no annual leave on termination or any net final payment.

In addition to the evidence contained in his sworn affidavits, the applicant gave oral evidence that he was initially employed between 28 September 1993 and 31 October 1993 on a part-time/casual basis.  He then commenced permanent employment from 1 November 1993 when the then manager, Barry Johnson, agreed that the employer would pay superannuation contributions and holiday pay on top of the gross income of $538.46 per week.

In February 1994, Frederick Johnson, the executive principal officer of the respondent, informed the applicant that the respondent had to make cuts and that it had no finances to run the company.  He asked the applicant for “ideas” and suggested that the applicant cut his hours from 40 hours per week to approximately 20 hours per week.  The applicant agreed and this reduced his weekly wages to an average of about $230.00 net per week to the date of termination.

The applicant’s evidence is somewhat confused as to whether he was still permanently employed or in part-time/casual employment since the alteration to the hours worked from February 1994 to the date of termination on 22 June 1994.  The applicant states that he did not know that he had been changed from a permanent employee to a casual employee and still regarded his employment as permanent.

The applicant gave evidence that so far as he was concerned the agreement for the respondent to pay superannuation contributions and holiday pay was not altered by the reduction in his working hours, nevertheless, despite the respondent’s agreement to pay superannuation contributions and a number of requests from the applicant to Frederick Johnson to honour this agreement, the respondent did not pay any superannuation contributions.  Indeed, when asked, Mr Frederick Johnson said he would not pay any superannuation contributions until his accountant told him to do so and until the business finances built up sufficiently to do this.

The applicant gave evidence that he had not received any complaints or warning concerning his performance during the currency of his employment.  On the evening of 22 June 1994 he attended his place of employment to collect his pay and was told by Frederick Johnson that his level of performance had dropped.  He was asked to resign and refused to do so, denying that his performance had dropped.  In response, he was told that his services were no longer required, that he was to leave the premises, and to return the respondent’s key on the following day.

On the question of superannuation contribution and holiday pay, the applicant gave evidence that he was told he was not owed anything.  Furthermore, he received no pay in lieu of notice.  All he received on the last evening of his employment was $141.00 net, representing 3 nights’ work performed by him in the previous week.

The applicant calculates his loss of superannuation contributions using his gross income as a guide at $402.00.  Further he seeks holiday pay for 2 weeks, which he calculates at $1,076.92 and a sum of $230.00 net for the failure to give 1 week’s notice to him.  The applicant does not seek reinstatement, as in his words, “there will be a lot of conflict”.

Since the date of termination the applicant who is a trained chef under the Army Defence Force Standards had had approximately 2 weeks’ paid employment as a chef in August 1994 at a Healesville restaurant.  The restaurant burnt down and ceased business.  Thereafter he was employed for approximately 1 week in home improvements, otherwise he has not been employed despite attempts to be employed.

The applicant claims to have lost a lot of confidence as a result of this incident, however, he is in his own words “just starting to pick up again” and will try out as a kitchen assistant with a new employer on 2 November 1994.

On the evidence I am satisfied that the applicant was employed on a permanent basis and that the termination of his employment was unlawful, in that it contravened section 170DC and section 170DE of the Act. As to the requirements of section 170DC the applicant’s evidence was uncontested. It shows that he was given no opportunity to defend himself against any performance-related allegations and received no warnings or a reasonable time within which to improve his performance.

Further, on the available evidence I find that pursuant to section 170DE of the Act there was no valid reason or reasons for the termination, and the circumstances of this termination, despite the reason advanced, was harsh, unjust and unreasonable. I am further satisfied that the applicant was not given 1 week’s notice of termination as required by section 170DB of the Act. The applicant does not seek reinstatement and I am satisfied on his evidence that it would be impracticable to order this.

On the evidence I further find that the applicant was owed by the respondent a sum of $402.00 for unpaid employer contributions to his superannuation fund and a sum of $1,076.92 gross for unpaid annual leave.  The applicant was unable to say whether he was employed on any award containing any other terms or conditions favourable to him in respect to these proceedings.

I make the following Orders

1. A declaration that the termination by the respondent of the employment of the employee contravened Division 3 Part VIA of the Industrial Relations Act 1988;

2. that the respondent pay to the applicant the sum of $230.00 as damages in respect of the respondent’s contravention of section 170DB of the Industrial Relations Act 1988;

3. that the respondent pay to the applicant compensation of $3,000.00 within 21 days of the date of this judgement;

4. and I direct the Registrar to enter these orders and to forward sealed copies of these orders to the applicant and the respondent respectively.

I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of Judicial Registrar Millane as recorded in the draft transcript and revised by the Judicial Registrar on 8 November 1994.

Associate:

Dated:  

The applicant appeared in person.

There was no appearance for the respondent.

Dates of hearing:	31 October 1994
Date of Judgment:	31 October 1994