Glinka v Kyrgios [1995] IRCA 49

CATCHWORDS Termination of employment - whether termination by employer - Application dismissed Industrial Relations Act, 1988 Sec. 170 EA GLINKA V. KYRGIOS NO. AI 164 OF 1994 LINKENBAGH J.R. CANBERRA 28 FEBRUARY 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA No AI 164 of 1994 AT CANBERRA BETWEEN SUSAN DAWN GLINKA Applicant and JOHN KYRGIOS Respondent REASONS FOR JUDGMENT THE COURT: Judicial Registrar Linkenbagh DATE OF JUDGMENT: Tuesday, 28 February 1995 PLACE: Canberra

This is an application under section 170EA of Industrial Relations Act 1988 made on 18 August, 1994 by Susan Dawn Glinka in respect of her employmnent with the respondent John Kyrgios in his "Take 5" Coffee Lounge at Woden Plaza, which employmnet came to an end on Friday 5 August, 1994. The Applicant had been employed since about 15 January., 1994, primarily to do cooking and kitchen duties, and including waitressing, cleaning up and other tasks. During that period she had taken eleven days off, sick, and was away sick from the Monday of the week her employment came to an end. She had exhausted her sick leave entitlements as at 5 August, 1994. The remedies under Division 3 of Part VI of the Act are available in respect of termination of employment, that is, where the employment is brought to an end by an act of the employer. The respondent in this case argues that no remedy can be sought because the applicant caused the employment to come to an end. The Court agrees with that submission. The Court finds the facts as follows.The applicant absented herself from work from 1 August, and was ill. She did provide medical certificates, and her illness was genuine. She came to the workplace on 5 August and there was a verbal exchange between her and the respondent. The applicant can recall no detail of the conversation, other than that the respondent gave her two days notice, and gave her her pay fro the two days she had worked the previous week. The respondent was, in her observation, angry, and she described her own state as "very upset". The respondent denies that he was angry, and can recall considerable detail.He told the applicant that she was not entitled to any sick leave, and that, as she had been away, he now had another person performing her duties in the kitchen, but that she could work from the next Monday as a waitress and that she should "dress up" for those duties. The applicant refused to accept that change in her duties and asked for two weeks severance pay. The respondent denies giving her two days notice, and agrees that he gave her the two days pay which was owing to her and her holiday pay, after it was clear that she did not accept the offer to return to work as a waitress. He did not pay any severance pay. There was some evidence about the applicant's work performance, and her performance was the reason given by the respondent in the first affidavit he filed in the proceedings, at a time when he was reprenented by an employer organisation. In an affidavit filed after he instructed his Solicitor, he deposes to the voluntary resignation of the applicant. Because of the finding of the Court that the applicant brought about the end of her wmployment, it is not necessary for the Court to make any findings as to the issues related to her performance. It may well have been that the respondent's patience with the applicant was exhausted by the absence from 1 August, and that could have caused any shortness of temper in him which the applicant detected on 5 August. Equally, her illness could have contributed to the haste with which she made the decision on 5 August that she would not work as a waitress. The evidence of the parties was that the applicant was paid a gross wage, on the books of the respondent, of $180.00 per week, making a net payment of $159.88. In addition, she received a cash payment of between $250.00 and $270.00 per week, depending upon the hours worked. No Income Tax was paid on the additional cash by either party. The Court proposes to refer the matter to the Attorney General for the attention of the appropriate Revenue authorities, as is the duty of the Court once it has notice of probable default by a party in its obligations under the law. I certify that this and the preceding one page is a true copy of the Reasons for Judgment of the Court Maria Linkenbagh Judicial Registrar 28 February, 1995 Solicitor for the Applicant: Mr.Scott Chamberlain Clayton Utz Solicitor for the Respondent: Mr.John Wilson Crossin Barker Gosling