Xia v Metro Workz Pty Ltd
[1996] IRCA 462
•16 September 1996
DECISION NO: 462/96
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1728 of 1996
VI 1729 of 1996
VI 1730 of 1996
B E T W E E N:
Hui Quan XIA
and
Zhi Hong YU
and
Wayne Robert McKENZIE
Applicants
A N D
METRO WORKZ PTY LTD
Respondent
REASONS FOR DECISION
(delivered ex tempore)
16 September 1996 PARKINSON JR
This is a decision in relation to the applications made pursuant to Section 170EA of the Industrial Relations Act 1988 (“the Act”) in VI 1728, 1729 and 1730 of 1996 by each of three applicants. The applications were heard together as a matter of convenience. There was no appearance for the respondent at either the trial of these matters or at directions hearings.
At the commencement of the proceeding I granted leave to the applicants in matters 1728 and 1729 to proceed in relation to a notice of motion filed on 11 September, 1996, seeking amendment of the claim to allege a breach of Section 14 of the Fair Trading Act 1985 (Vic). The application made in the notice of motion was granted.
I deal first with the s170EA applications.
The applicants were employed by the respondent as cleaners. According to their evidence they were employed pursuant to Individual Employment Agreements. No documents were discovered by the respondent so the applicants were unable to provide these agreements to the Court. The applicants explained the terms of their engagement as being a permanent part time basis, to work between 5.45pm and 8.45pm five nights per week. The hourly rate of pay was $12.50. In late March, 1996 the applicants’ employment was terminated without any warning. The applicants were informed that the contract for the premises at which they were located at had been lost by the respondent. This information was obtained by them from the operator of the premises and not from the respondent. They subsequently inquired of the respondent as to their ongoing employment and were told they were finishing up. They became aware on 29 March, 1996 that they were no longer required when a person unknown to them, but apparently representative of the respondent, attended at the workplace to collect the cleaning equipment with which they had been issued. No written notice of termination of employment was provided and the applicants received no payments upon termination of the employment.
Pursuant to s170EDA(1) of the Act the respondent must establish that it had valid reason for the termination of the employment. In this case it has failed to appear to put any case in this regard. The respondent has not appeared at Court to establish that the reason for the termination of the employment was based upon any of the reasons set out in s170DE(1) of the Act, being for reasons related to the operational requirements of the business or upon the work performance or conduct of any of the applicants. To establish that a valid reason existed it would be necessary for the respondent to satisfy the Court that in view of the contract loss, it was an operational requirement that the employment be terminated. This would involve an examination of the circumstances of the business, and the alternatives available to the termination of the employment. I am not satisfied that the respondent had valid reason for the termination of the applicants’ employment and thus I am satisfied that there has been a contravention of s170DE(1) of the Act in respect of each applicant.
I turn now to consider the remedies sought by each of the applicants.
I am satisfied in the circumstances that an Order for reinstatement is impracticable. Mr McKenzie explained the circumstances of his applying for and seeking part-time work. I am satisfied that, despite having co-existing full time employment, his domestic circumstances were such that he was likely to have continued in the respondent’s employment, but for the contravention of the respondent. He has not been able to obtain alternative employment in the interim period and is entitled to compensation in the amount sought, which in his case is the sum of $5,281.38.
Mr Zhi Hong Yu’s evidence was that he had foregone employment, albeit lesser paying employment, to work with the respondent. His evidence was that he believed his employment to be ongoing and of a permanent nature. I am satisfied that but for the contravention of the Act, the employment would have continued. Mr Yu has been unable to obtain alternative employment in the interim period and is entitled to compensation in the sum sought. That amount is $ 5,281.38.
Mr Hui Quan Xia’s evidence was that he forewent other employment in favour of the respondent. I am satisfied that Mr Xia would have remained in the employ of the respondent but for the contravention by the respondent and is entitled to compensation in the amount sought which is the sum of $ 3,453.21. This amount accounts for the obtaining by him of alternative employment in July, 1996 and thus is compensation for a period limited to 17 weeks.
As to the contraventions of the Fair Trading Act 1985, I am unable to be satisfied as to a representation as to length or longevity of the proposed employment. The use of the term “permanent” employment has many connotations, not least of which is that the employment is not “casual” and is consequently the subject of paid sick leave and annual leave. There is insufficient evidence in these proceedings for me to be satisfied on balance as to the nature of representations made. The application made pursuant to the provisions of the Fair Trading Act is dismissed.
I certify that this and the preceding three (3) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate : Paul Ferguson
Dated : 16 September 1996
APPEARANCES
Counsel appearing for the applicants : Melinda Richards
Solicitors for the applicant : Slater & Gordon
No appearance for the respondent
Date of hearing : 16 September 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1728 of 1996
VI 1729 of 1996
VI 1730 of 1996
B E T W E E N:
Hui Quan XIA
and
Zhi Hong YU
and
Wayne Robert McKENZIE
Applicants
A N D
METRO WORKZ PTY LTD
Respondent
MINUTES OF ORDERS
16 September 1996 PARKINSON JR
THE COURT ORDERS THAT:
The respondent pay to the applicant in matter number VI 1730 of 1996 the sum of $5,281.38.
The respondent pay to the applicant in matter number VI 1729 of 1996 the sum of 5,281.38
The respondent pay to the applicant in matter number VI 1728 of 1996 the sum of $ 3,453.21
The application made pursuant to the Fair Trading Act 1985 (Victoria) be dismissed.
The time for payment is 21 days from the date of this Order.
The District Registrar is directed draw and serve a sealed copy of these Orders and Judgment by post.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
whether VALID REASON for termination - whether termination OPERATIONAL REQUIREMENT -
Industrial Relations Act 1988, ss 170DE, 170EA, 170EDA(1)
Fair Trading Act 1985 (Victoria) s14
XIA v METRO WORKZ PTY LTD
VI 1728 of 1996
YU v METRO WORKZ PTY LTD
VI 1729 of 1996
McKENZIE v METRO WORKZ PTY LTD
VI 1730 of 1996
Before: PARKINSON JR
Place: MELBOURNE
Date: 16 September 1996
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