George Fotopoulos and SMG Master Plumbing Service [1995] IRCA 36

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 1461 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: GEORGE FOTOPOULOS Applicant A N D SMG MASTER PLUMBING SERVICE Respondent Reasons for Judgment (Delivered ex tempore - Revised from the transcript) 7 February 1995 PARKINSON JR This is my decision delivered ex tempore in the matter of George Fotopoulos and SMG Master Plumbing Service. In that matter I grant leave to the applicant to amend the title of the proceedings as filed from SMG Master Plumbing Service to SMG Master Plumbing Service Pty Limited. Those proceedings are amended. The applicant in this matter appeared in person. The respondent failed to appear at the hearing of the matter. I am satisfied that the respondent was served with all necessary documents and was informed of the dates for hearing of this matter. The applicant was employed on 14 June 1994 by the respondent as a qualified plumber. He was interviewed for employment by a Mr Gino de Petro of the respondent who represented himself as a director of the company. This representation is also contained in exhibit F1 in the proceedings which is a separation certificate completed by Mr de Petro. The applicant commenced work for the respondent and continued in the employ until 19 August 1994. On that day he had previously arranged with the respondent for a day off work. At 2.30 pm that afternoon he was telephoned by a representative of the respondent known only to the applicant as Maurice who held some type of managerial role in the respondent. He was told that he was no longer required. The applicant was told by this person, Maurice, that there was a problem with a recent job done by the applicant and that the applicant was sacked. The applicant was given no opportunity to respond to any allegations as to his work performance, he was given no opportunity to inspect the alleged poor work. In short, he was denied the most basic and fundamental elements of procedural fairness. He was treated shoddily by the officers of the respondent, both in respect of the termination, the reasons for the termination and in the subsequent events regarding payment of outstanding entitlements. He was not paid any amounts in lieu of notice of termination, nor it should be added does it appear that he has been paid any of his outstanding entitlements as to annual leave. It also appears that no payment has been made for wages already owing at the date of the termination of the employment. The evidence is that Mr de Petro failed and refused to pay the applicant outstanding wages and other money owing. Having regard to the unsustained allegations of poor work performance in these proceedings, I am satisfied that the termination of the applicant's employment was not for valid reason and was further harsh, unjust and unreasonable for reasons of denial of procedural fairness. I have decided that the applicant is entitled to an amount in compensation which is an amount equivalent to remuneration which was likely to have been earned over an additional 13 weeks being a reasonable period, in my view, having regard to the applicant's endeavours to find alternative employment and the likely length of his employment with the respondent but for the unlawful termination. This amount also includes an appropriate minimum notice period. This is an amount of $7683.00 which is a gross amount. I have not included in these amounts of compensation any consideration of the amounts of alleged wage underpayment. They are the amounts which relate to outstanding wages for work already completed and outstanding annual leave and travelling allowances. These are matters not contemplated in the application pursuant to section 170EA of the Industrial Relations Act. The applicant's rights to proceed in this regard are expressly preserved. The orders of the court are: 1. That the applicant be granted leave to amend the name of the respondent in this proceeding to SMG Master Plumbing Service Pty Limited. 2. That in terminating the employment of the applicant, the respondent contravened section 170DE of the Industrial Relations Act 1988. 3. That the respondent pay to the applicant compensation in the sum of $7683.00. 4. The time for payment is 14 days from the date of this order. I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson as recorded in the transcript and revised by the Judicial Registrar on 13 February 1995. Associate: Dated: 7 February 1995 Applicant: In person Respondent: No appearance Date of hearing: 7 February 1995 Date of judgment: 7 February 1995