Luke David Pepper v Element Holdings Pty Ltd t/as Algar Burns Distribution [1995] IRCA 47

IN THE INDUSTRIAL RELATIONS ) No. WI 364 of 1994 COURT OF AUSTRALIA ) WESTERN AUSTRALIAN DISTRICT REGISTRY ) BETWEEN: Luke David Pepper Applicant AND: Element Holdings Pty Ltd t/as Algar Burns Distribution Respondent

BEFORE: Boon JR PLACE: Perth DATE: 23 January 1995

REASONS FOR JUDGMENT

BOON JR: Luke David Pepper by an application dated 8 September 1994 seeks the following relief under S 170 EA of the Industrial Relations Act 1988: 1. (a) an order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988 ("the Act"); (b) an order requiring the respondent to reinstate the employee in employment; and (c) an order that the respondent pay compensation to the employee. 2. Such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the respondent had not been terminated: see Section 170 EA of the Act.

The applicant appeared in person and Mr Jensen of the Chamber of Commerce and Industry of W.A. appeared for the respondent. The following witnesses were called to give evidence: 1. by the Applicant: (a) the Applicant himself, and (b) Ante Dropulich, Computer Scientist 2. by the Respondent: (a) John Hamilton Algar, Sales Consultant with Algar Burns Distribution, and (b) Neil Arthur Stocker, shareholder in Algar Burns Distribution and employer of John Hamilton Algar. Mr Pepper alleges that Algar Burns Distribution unlawfully terminated his employment. He argues that there is no valid reason for the termination connected with his capacity or conduct or based on the employer's operation requirements. He also argues that, if the termination was related to his capacity or conduct, he was not given the opportunity to defend himself against the allegations made against him and was dismissed without notice. Algar Burns Distribution disputes the bases of liability alleged by the applicant. Mr Jensen for the Respondent argued (i) that Mr Pepper was excluded from the operation of Section 170 EA because, at the time of his dismissal, he was serving a period of probation; and (ii) in any event, the termination did not contravene the provisions of the Industrial Relations Act because it was reasonable in the circumstances. Algar Burns Distribution is the trading name of a company which distributes computer software. In an affidavit sworn 8 September 1994 Mr Pepper states that the nature of his employment with Algar Burns Distribution was in sales and customer support. He was covered by the Commercial Travellers and Sales Representatives Award 1978 which is an award of the Western Australian Industrial Relations Commission. Mr Pepper's affidavit states that he started work with Algar Burns Distribution on 29 August 1994. This employment was terminated on 5 September 1994. No written notice of termination was given. Mr Pepper's affidavit states that the reason given by the Respondent for termination was said (by Mr Algar) to be that "I don't think we will work out". In an affidavit sworn 5 October 1994 Mr Algar on behalf of the respondent company states that Mr Pepper was employed for a three month probationary period. He disputes the reason for termination set out in Mr Pepper's affidavit and states that at the time of termination the reasons given were: (a) poor work attitude; (b) misused company property and continued to do so after receiving a warning; (c) conducted private business during working hours; and (d) accessed confidential files without management consent.