Gostich, Michael v The Serbian Community of South Australia Inc [1997] FCA 1502

FEDERAL COURT OF AUSTRALIA Industrial Law - termination of employment - review under section 377 - complaint of unlawful termination - whether valid reason for termination - whether a reason for termination included temporary absence from work because of illness - failure to return from leave on date stipulated by employer.

Workplace Relations Act 1996 (Cth) (formerly Industrial Relations Act 1988), ss 170DB, 170DC, 170DE(1), 170DF(1)(a), 170EDA, 170EE Matter No. SG43 of 1997 MICHAEL GOSTICH v THE SERBIAN COMMUNITY OF SOUTH AUSTRALIA INC. VON DOUSSA J ADELAIDE 22 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 43 of 1997

BETWEEN: michael gostich

Applicant

AND: the serbian community of south australia inc.

Respondent

JUDGE: VON DOUSSA

DATE OF ORDER: 22 DECEMBER 1997

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The decision of the Judicial Registrar made on 23 May 1997 be set aside. 2. Judgment for the applicant, Michael Gostich, be entered against the respondent, the Serbian community of South Australia Inc. in the sum of $9,726.00 which sum is to be paid within 14 days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 43 of 1997

BETWEEN: michael gostich

Applicant

AND: the serbian community of south australia inc.

Respondent

JUDGE: VON DOUSSA

DATE: 22 DECEMBER 1997

PLACE: ADELAIDE

REASONS FOR JUDGMENT By notice of motion filed on 13 June 1997 the applicant, Mr Gostich, seeks review under s 377 of the Workplace Relations Act 1996 ("the Act") of a decision of a Judicial Registrar delivered on 23 May 1997. The jurisdiction of this Court to conduct the review arises by operation of schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth). The proceedings were commenced by application filed in the Australian Industrial Relations Commission under s 170EA(1) of the Act by an Industrial Officer acting for Mr Gostich on 7 August 1997. The application sought relief in respect of an alleged unlawful termination of employment. The proceedings were referred to the Court pursuant to s 170ED(1) on 26 August 1996. The employment and the termination Mr Gostich is a qualified social worker. In about November 1994 he was employed by the respondent, The Serbian Community of South Australia Inc. as a part-time grant-in-aid welfare worker to assist persons of Serbian descent who may have had problems of a social kind by referring them to appropriate agencies and organisations. The respondent is an incorporated body which acts as an umbrella organisation for its member associations. Its objects include establishing, maintaining and promoting brotherly relationships with member organisations and through them with all Serbians in South Australia, promoting Serbian culture and traditions, helping and promoting welfare of Serbian Youths, helping newcomers to South Australia integrate into the community, and helping aged and incapacitated people. One of the members of the incorporated body is the Free Serbian Orthodox Church "St. Sava" at Hindmarsh ("the Church"). The affairs of the respondent are conducted by an elected committee, and the evidence indicates that the members of the committee, or at least many of them, are also actively engaged in the affairs of the Church. Mr Gostich's contract of employment gave an entitlement to four weeks annual leave which could be taken one year from the date of commencement. As it happened, however, Mr Gostich took approximately seven weeks leave in mid-1995, some of it being paid leave due at that time, and the balance unpaid leave granted to him by the committee then in office. In December 1995 there was a change in membership of the committee, and it is clear that the change brought with it disharmony between of the new committee ("the committee") and Mr Gostich. That disharmony appears to have been aggravated by feelings that were running high in unrelated litigation between factions in the Serbian community ("the Welfare Association litigation"). It seems that Mr Gostich did not share the views of the new committee members about the merits of that litigation. During the first half of 1996, Mr Gostich applied to the committee for seven weeks leave to commence on 8 July 1996. Mr Gostich sought four weeks annual leave and three weeks leave without pay to enable him to travel overseas with his family. The committee refused his application and informed him that it would grant only two weeks paid annual leave. Acrimonious communications followed between the parties, but the respondent, through the committee, remained firm. The respondent's final communication to Mr Gostich on the topic was by letter incorrectly dated 9 July 1996. Mr Gostich received the letter on 8 July 1996 on the eve of his departure overseas. He and his family were booked to leave on 9 July 1996. The letter incorrectly dated 9 July 1996 raised a number of outstanding matters in dispute between the parties but, of immediate relevance, said: "Our decision is not to grant your request - we confirm that we have given you 2 weeks annual leave before it fell due to assist you - you will be required to commence employment at your usual place of employment on Thursday 25/7/96 otherwise your employment will be terminated - the decision is now final on this matter and you are further warned to attend employment on the said date."