INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 852 of 1994 B E T W E E N : JEFFREY MARK TABONE & ANOR Applicant AND STRASBURGER ENTERPRISES INC Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 10 March 1995 REASONS FOR JUDGMENT By an application made on 9 August 1994 pursuant to Section 170EA of the Industrial Relations Act 1988 ("the Act"), the Applicant contends that on 27 May 1994 his employment as a manager at the Respondent's Footscray food store was unlawfully terminated. The Applicant seeks reinstatement to his former position. Prior to the hearing and by consent the Applicant's application was amended to seek the payment of a penalty sum to the Applicant under Section 178 of the Act because of the Respondent's alleged breach of the applicable award provisions. At hearing the Applicant withdrew this part of his application. Initially, the Respondent relied on the Applicant's failure to bring his application within the 14 day period provided for in Section 170 EA (3) of the Act. At hearing the Applicant's application for an extension of the time for making this application was not contested and the matter proceeded on the basis that such extension was granted by the Court pursuant to Section 170 EA (3). During the course of the two day hearing it was argued by the Respondent that the Applicant's employment had been lawfully terminated on 27 May 1994. The valid reason or reasons relied upon by the Respondent were breaches of company policies loosely referred to as its cash handling policies and its recap procedures on 23 May 1994 (Section 170 DE(1)). Because of the seriousness with which the Respondent viewed such breaches it was alleged that the Respondent was justified in summarily terminating the Applicant's employment without notice or compensation in lieu thereof (Section 170 DB) and such termination in all the circumstances was neither harsh, unjust nor unreasonable (Section 170 DE(2)). The following witnesses were called:- a) By the Applicant:- i) the Applicant. b) By the Respondent:- i) Simon Roy Bartram; ii) James Kenneth Murray McCracken. Background Throughout Australia the Respondent operates 31 Quix food stores retailing petrol, groceries and fast food items, the majority of which stores operate 24 hours each day including the store located at Footscray. The stores were computerised from March 1993 so that in May 1994 the Respondent's head office set product prices in Sydney and that information was downloaded to each store through a modem located in the store manager's office from which it was then transferred by the store manager to the store's cash registers. Apart from weekly notification of prices to the stores there was also notification of promotional prices from one to two weeks before a store promotion of a particular product, such as the soft drinks known as coke and pepsi-cola. The Respondent at the relevant time had written policies, procedures and instructions contained in what was referred to as its PPI manual (extracts from which were tendered to the Court as Exhibits R2 to R14 inclusive and A5 and A6), for reference to and use by its employees. There was also a Manager's Manual (extracts from which were tendered to the Court as Exhibits R18 to R24 inclusive) describing the policies contained in the PPI manual as "...guidelines which govern how we conduct our business. ...As a manager you need to be aware of these and perform your job functions within the parameters established in these policies". (see Exhibit R18). In May 1990 the Applicant commenced employment with the Respondent as a casual employee for some three months. On commencement of his casual employment the Applicant signed a document containing a series of guidelines and referring the new employee to the PPI manual for more detailed information about the policies contained in the signed document. It also noted that "in the event a violation does occur, the severity of the discipline will rest entirely upon Strasburger Enterprises, Inc". The Applicant progressed quickly from a casual employee to a trainee assistant manager for one year at the St Albans office and was then promoted to assistant manager at the Footscray store. After three months at that store he was promoted in 1992 to the Sunshine store to manage his own store. Within four months the Applicant was asked to manage the Respondent's Hoppers Crossing store because, according to the Applicant, they were "...having problems with the store there, not up to Quix's expectations of their business, and the audit problems that they were having". This was a bigger and busier store and the Applicant remained there for about one and a half years until February 1994 when he was transferred for six months to the Footscray store because "...the company thought they were having problems at the Footscray store". The problem was an audit loss of $10,000.00. Although the Applicant was not happy with the move to the less convenient location he agreed to the transfer after the Respondent offered to transfer him within six months when its new Werribee store opened. It was not disputed that the Applicant worked some sixty to seventy hours per week and that he experienced problems at the Footscray store with his night shift staff. During the week commencing Monday 23 May 1994 the drink coke was to be the subject of a promotion. That entailed selling the product at a reduced price from Wednesday 25 May 1994. The reduced price was not downloaded from Sydney until the day the promotion commenced at which stage the manager could enter the promotional price in the store's registers. At approximately 5.30 pm on 23 May 1994, as the Applicant was due to leave the store for the day in the hands of the night shift staff, 200 slabs of coke were delivered to the store for sale at the forthcoming promotion. It is alleged by the Applicant that because of limited storage in the back room of the store the coke was unloaded in the forecourt area of the store where there was already a pepsi-cola promotion on display. As the Applicant was leaving he instructed the remaining staff that, if a customer asked to purchase a slab of coke, the staff could sell the coke to the customer at the promotional price. The usual price was $25.00 for a total of 18 cans of coke. Each slab contained 18 cans and for the purpose of the promotion was priced at $10.88 per slab. It was contended by the Applicant that he gave the abovementioned instruction not because he was trying to sell the coke at the promotional price but to satisfy customer demand if there was an enquiry by a customer about the cost of a slab and a desire to purchase same. At the times when it was not on promotion the coke was not sold in slabs but in individual cans at the higher price. Having instructed the staff as above the Applicant further instructed them that if any of the coke slabs were sold the money received was to be placed in the store safe with a note as to the number sold. This was instead of scanning the product which would have been entered on the store register at the normal price. The Applicant's reason for giving this instruction was that the scanning and ringing up of the register at the regular price would have created a discrepancy when the staff came to balance the till. Tuesday 24 May 1994 was the Applicant's rostered day off and as chance would have it the Footscray store was the subject of an unannounced audit. This audit revealed a shortage of 40 slabs of coke stock and a shortfall in takings in excess of $400.00 for this stock. James Kenneth Murray McCracken (McCracken), the Respondent's area manager had the responsibility of attending the audits of stores in his zone and, on attending the Footscray store on 24 May 1994 was informed of the audit shortfall. His enquiries with the staff revealed the instruction the Applicant had given his staff the previous evening and also revealed the existence of a bag of money collected on the sale of coke slabs and stored in the Tidel safe but not rung through onto the Respondent's registers. McCracken took steps to have the money deposited with the bank on the same day. McCracken regarded the Applicant's conduct as amounting to a serious breach of company policy. He spoke to both the Respondent's auditor and Simon Roy Bartram (Bartram) who was then the Victorian district manager. It was alleged by McCracken that in his position as area manager he was authorised to discipline his store managers by way of formal or informal counselling however he could not go further and terminate the Applicant's employment even though his formal counselling might be a precursor to the termination of the employee's employment. On 25 May 1994 when the Applicant returned to his duties McCracken met with the Applicant. In McCracken's words:- I went in with the counselling report, sat down with Mr Tabone and asked him if what I'd heard about the selling of the coke slabs was correct. He said that: Yes, that is what had happened. I said that this was viewed as a serious matter, of policy violation and that I would formally counsel him. I had the counselling form. Showed this to Mr Tabone because the employee is asked to sign the form and make any relevant (sic) that the employee wants to. Mr Tabone did not seem to think the matter was particularly serious and refused to sign the form. The circumstances giving rise to the alleged policy violations were not contested by either party. It was alleged by McCracken that a copy of the counselling report form (exhibit A1) was given to the Applicant who:- ... just did not believe that it was serious enough and he actually laughed at me trying - counselling him. After the attempt to formally counsel the Applicant McCracken alleged that he told the Applicant that he:- ... would be informing my boss that he would be - I did not know what the next procedure would be, that he would be kept informed. The Respondent's witnesses gave evidence of a counselling system where verbal and formal counselling of employees was undertaken with employees in respect to a number of categories of performance issues ranging from lack of interest, chronic absenteeism, policy violations and numerous other matters. Exhibit A1 indicates that the counselling session was a formal one for a policy violation for which no previous warning had been given and, it describes the incident as follows:- Jeff broke company policy by allowing staff to sell coke 18 pks at the promo price of $10.88 two days before they came on promo. The staff were instructed not to scan the product or ring the money into the till, these would be done once the download arrived on Wednes. 25th May 1994, consequently the auditors had a shortage of coke 18 pk at audit on Tues. 24th May. The counselling report makes no attempt to identify the precise policy or policies breached by reference to the PPI manual. However in cross examination McCracken referred to breaches of policy identified as cash procedures and unauthorised pricing of products. The Applicant's account of the events on 25 May 1994 is that on his return to work on that day he saw the audit paper work on his desk and was surprised to note that it referred to a variance of 40 slabs of coke. He was surprised because he knew the money for the coke was in the safe. He then spoke to his assistant manager and because the price change for the promotional product had been by that stage downloaded from Sydney to his computer system, the Applicant scanned one slab of coke 40 times and, contrary to the evidence given by McCracken and later by Bartram, the Applicant placed the money in the register. Both McCracken and Bartram gave evidence that they had taken steps to secure the money and indeed McCracken had arranged for it to be banked on Tuesday 24 May 1994 before the Applicant's return to work. This action accords with the Respondent's policy requiring daily bank deposits in order to safeguard its monetary assets (Exhibit R3). On balance I am not satisfied that the Applicant did place the coke money in the register as alleged. Having identified the shortfall and found the money in the safe on 24 May 1994 it is more likely than not that the Respondent took the steps alleged by McCracken and Bartram to properly secure the money. The Applicant agreed that on 25 May 1994 McCracken did visit him with the counselling report, that it was read to him and that McCracken told him there had been a violation of company policy and asked him for an explanation of what had occurred. The Applicant agreed in cross examination that he had admitted the incident as summarised in the report but when offered the opportunity to sign the report refused to do so. It was conceded by the Applicant that he did not at that stage nor does it seem even at hearing believe that the breaches of the policy warranted formal counselling or indeed termination of his employment. Whilst agreeing that he told McCracken that he was not happy with the counselling action the Applicant denied McCracken's assertion that he was then informed that the matter could be taken further. Given the exchange between the Applicant and McCracken and the Applicant's refusal to sign the counselling report it is more likely than not that McCracken did tell the Applicant that the matter could go further particularly after the Applicant refused to acknowledge the disciplinary action of formal counselling when he had no quarrel with the accuracy of the complaint set out in the report. On Thursday 26 May 1994 there was no further discussion until after a manager's meeting later that day when the Applicant approached Bartram carrying the Applicant's copy of the counselling report and proceeded to screw up the document and discard it. The Applicant agreed with the proposition put to him in cross examination that in trying to hand the crushed counselling report to Bartram he was in effect saying to Bartram that the report was "just rubbish". The Applicant's explanation for this conduct was that "...I had never been warned or had a counselling report and I didn't think I did anything wrong". As it turns out the Applicant was wrong in saying that he had never received a counselling report on any previous occasion as there were at least two other formal counselling sessions and reports referred to in the evidence. According to the Applicant Bartram explained the counselling report by telling him that the Applicant had "...done two things wrong - two things, sorry. The first thing was good - the first thing that he supplied the customer with service..." "...with the service he required at the promotional price. The bad thing was that the stock was not recapped". In referring to recapping the Applicant explained this to mean a manual method of changing prices on stock from the regular price to a discounted price. It is contended by the Applicant that the conversation with Bartram concluded with Bartram telling the Applicant not to "...take it too seriously". The Applicant understood this to mean that he should know what to do next time. This last statement was denied by Bartram subsequently. In cross examination the Applicant agreed with counsel for the Respondent, Mr Parry, that Bartram had said "well you did the right thing by giving customer service but I have a real problem with that (sic) you didn't account for the money". On 24 May 1994 Bartram was informed by McCracken of the discrepancies in the audit. He took steps to further acquaint himself with the problem by contacting the auditors and asking McCracken to document the incident. During his chance encounter with the Applicant after the management meeting on 26 May 1994 Bartram alleged that the Applicant handed to him the screwed up counselling report saying "we may as well throw this away, it's no use to me". On seeing it was the Applicant's counselling report Bartram engaged in a brief discussion with the Applicant telling him:- ... he had done a good thing by providing customer service and not upsetting, I mean, our business is to give customer service and that he had done that by not upsetting people if they had asked for the product at the time. But I also explained to him that the problem that I had with that was that he had taken monies, or yes, he had taken monies from customers for product without accounting for the monies, without registering it and he had - and he had also instructed his staff to do the same. Bartram alleges that the Applicant explained his actions by saying that:- ...he had done it that way, and that was because in our computerised system all the stock has a balance on hand at each day, so the reason he had given me a reason why the money hadn't been accounted for in the register and that was so that there wasn't a variance to be shown on the register until a price was loaded into the register. At the conclusion of that brief meeting Bartram was left with the impression that the Applicant still did not understand that his actions were "wrong in the company's eyes". On the following day 27 May 1994, Bartram arranged a further interview with the Applicant at the Respondent's Spotswood office:- ... because of Jeff's inability to account for the money and more so because of the fact that he didn't instruct his own (sic) - his staff to not ring sales through the register, that it had not only gone past him but it was something that had been instructed to other employees. The abovementioned meeting was attended by the Applicant, Bartram and Barry King, the Respondent's Victorian district manager who did not give evidence. Prior to this final meeting, apart from his discussions with McCracken, personally checking the audit printout and ensuring that the moneys held back on the sale of the slabs of coke had been banked separately, Bartram did not refer to the Applicant's personal file held at the Respondent's Sydney office. If he had he would have found two earlier formal counselling reports dated 11 October 1992 and 23 June 1993 (Exhibits R16 and R17) and a store manager's performance review dated 5 May 1993 (Exhibit R15). The earliest counselling report involved a policy violation where the Applicant failed to change the price of petrol before the deadline and had instructed a staff member not to do this because he would do it himself. This counselling report was signed by the Applicant. By the date of the store manager's performance review in May 1993, the record of which was also signed by the Applicant, the Applicant's performance was generally graded as acceptable. However, the reviewer had cause to comment that the Applicant's "attitude tends to be resistant against complying with all company policies. Needs to be more disciplined towards housekeeping and basic policies". The next formal counselling report, not signed by the Applicant and which he denies ever seeing, involved a further policy violation. This was a failure to complete the cigarette and cash logs on a daily basis. The report also referred to a previous verbal warning for a similar occurrence. From his evidence it was clear that although the Applicant had not signed or as he alleged sighted the last counselling report he acknowledged that at the very least there had been a discussion with the maker of the report about this incident, although in his view such discussion did not amount to a warning or counselling. Bartram had knowledge of the performance review when he met with the Applicant on Friday 27 May 1994 having made the decision that "unless Mr Tabone had a reasonably good answer or reason why the events had occurred in that way then he would need to be terminated". Bartram did not however follow company employment termination policy which required amongst other things the review of the Applicant's entire file prior to termination to ensure that he had been dealt with properly and justly and giving at least one verbal and written warning prior to termination. (see Exhibit A5). The meeting with the Applicant was arranged by McCracken and in recalling his final interview with Bartram the Applicant alleged that within a "couple of minutes" of arriving and without being given the opportunity to respond or explain his version of events he was told by Bartram "that the offence that I - violation I had done on Tuesday was now thought a serious offence and that I would be terminated, sacked for it". The Applicant could not believe that the Respondent would terminate his employment "over something like that" and responded by saying "you've got to be joking". In cross examination the Applicant conceded that Bartram did tell him at that meeting that he was not authorised to sell the coke at special prices and all sales were required to go through the register. He further conceded that he (the Applicant) may have said "well I know that. That's why I didn't ring the sale up", stating also that "if we hadn't had an audit, we would have been okay". Throughout the hearing the Applicant maintained that the audit shortfall was not an exceptional sum and audits often produced greater variances than that found on 24 May 1994 for the coke product. This argument and the Applicant's expressed view that the shortfall was a "pitiful amount" demonstrated a refusal on his part to accept that cash handling and cash control was an important part of the Respondent's business and that the Applicant had an obligation to and had agreed to comply with the company's policies. The impression I gained at hearing was that a more contrite and co-operative response may have led to the Respondent allowing the Applicant to remain in its employ. As Bartram pointed out he believed that the Applicant "... had not come to a full understanding of the seriousness of the offence". Not surprisingly, Bartram's recollection of the final meeting indicates that there was a detailed exchange between those present at the meeting during which time Bartram explained the reason for the meeting and gave the Applicant the opportunity to respond, at which stage the Applicant reiterated his earlier explanation. There was discussion of the audit results and the Applicant's belief that all would have been well if he had been at the store on the day of the audit. It was contended by Bartram that he told the Applicant:- ... he had been with the company long enough and had known that if he was going to sell a product prior to promotion at a cheaper price, that he still should have put it through the register and explained to him that he knew there was a way of doing that that he knew of. The way to circumvent the policy was to obtain permission from the marketing department in Sydney or the Applicant's area manager. This was not disputed by the Applicant. At the end of the interview Bartram concluded that:- Mr Tabone had understood that he had breached a policy as in not accounting for the monies, but he could not come to terms with the fact that he thought that it was purely a customer service and that there was no - and therefore that outweighed the fact that he had not accounted for the sales. I mean, my conclusion was that he had not come to a full understanding of the seriousness of the offence. As a result the Applicant's employment was terminated immediately without any period of notice being given to him or compensation in lieu of such notice. Findings On the evidence I am satisfied that there was a valid reason for terminating the Applicant's employment on 27 May 1994 and that reason was directly connected with the breaches of the company's cash handling policy as well as its recapping policies. I have come to my conclusion after considering not only the witnesses' demeanour and their recollection of the events occurring between 23 May 1994 and 27 May 1994 but also having regard to the material tendered to the court from the PPI manual (Exhibits R2 to R14 inclusive) and the Manager's Manual (Exhibits R18 to R24 inclusive). After hearing the Applicant's evidence there is little doubt in my mind that he was familiar with particularly the cash management policies of the Respondent contained in the PPI manual and understood the reasons for those policies. Indeed, it was the Applicant who gave evidence that he had been transferred to the Footscray store because the store had problems and had an audit loss of some $10,000.00. Both when he was counselled by McCracken and interviewed by Bartram it was not that the Applicant did not know what, if any policy violation had occurred, it was more a case of the Applicant not appreciating or accepting the importance of, the need to and, indeed, his obligation to comply with company policy. In cross examination it was conceded by Bartram that in each of the policy documents tendered to the court there was no distinction drawn between the violation of one policy or another. For instance, Mr Perico representing the Applicant pointed to the policy document relating to security procedures where it requires employees to "offer any policeman who visits your store a free cup of coffee or a fountain drink" (see Exhibit R11). A violation of this policy is not distinguished from, for example, the violation of the general guideline (see Exhibit R1) contained in the document signed by the Applicant on commencing his employment which states that "misappropriation of company funds, equipment or merchandise will be treated as theft". The only reference to any form of summary dismissal is in the general guideline (see Exhibit R1) which states that "any illegal act will be grounds for immediate termination". Apart from this lastmentioned matter and as noted at the beginning of this judgment, the question of the severity of discipline for any violation of policy rests, according to the general guidelines (see Exhibit R1), entirely with the Respondent. In effect, relying on the contents of these policy documents, an employee would have no way of knowing that a breach of the company's cash handling and recapping policies was characterised as serious misconduct and justified termination of the employee's employment immediately, without specific warnings and a period in which to improve the employee's performance. At the date of termination the PPI manual contained a policy on the termination of employment dated 22 May 1992 (see Exhibit A5). The policy was as follows:- POLICY: No employee may be terminated without prior authorisation of at least two levels above the position being reviewed. Termination report (supplies from H.R. Dept) must be filled in one week prior to termination of the employee. The termination form must be completed in full with relevant details and approved by Manager Human Resources prior to termination. POLICY: All employees must have been warned verbally on the violation(s) and also have been warned in writing at least once - depending on the severity of the violation. The entire file is then to be reviewed by the proper line of supervision and by personnel to ensure that the employee has be (sic) dealt with properly and justly. If the employee wishes, he/she, may request an interview with Manager Human Resources. This policy is to encourage the development of our employees as the greatest asset we have. Interestingly enough, on 14 August 1994 after the termination of the Applicant's employment the abovementioned policy was varied (Exhibit A6). The most significant variations to the policy were the increase in the number of written warnings to two and the following proviso:- Exemptions to this policy would be for disciplinary reasons i.e., theft, possession of illegal drugs, etc. which would warrant instant dismissal. It was not suggested by either of the Respondent's witnesses that the Applicant had stolen, had any intention to retain monies held in the safe or did more than breach the procedures for safeguarding the Respondent's assets and the management of its cash. Nothing in the PPI Manual, the store manager's manual or the training given to the Applicant could have indicated to him that a breach of these procedural steps could warrant summary dismissal and a departure from the Respondent's express policy for terminating employment. At the date of termination there existed a real tension between the Respondent reserving the option to chose the severity of the discipline meted out for policy violations and the employment termination policy which specified the procedure to be followed in bringing about a termination. The Respondent asks the court to accept that the acknowledged breaches of its policies give rise to a valid reason or reasons for termination of the Applicant's employment. The evidence supports such a finding on the substantive issues and in that regard the Respondent has discharged its onus of proof pursuant to Section 170 DE(1) of the Act. Nevertheless, the Respondent also seeks to gloss over its failure to fully implement its own termination policy in this particular case in circumstances where this conduct is of itself prima facie evidence of a lack of procedural fairness. Paragraph 7 of the Recommendation Concerning Termination of Employment at the Initiative of the Employer (see Schedule 11 of the Act) states that:- The employment of a worker should not be terminated for misconduct of a kind that under national law and practice would justify termination only if repeated on one or more occasions, unless the employer has given the worker appropriate written warning. The Respondent's policy on the termination of employment existing as at the date of the Applicant's misconduct broadly incorporates the principle of procedural fairness contained in paragraph 7, although until its amendment in August 1994 the Respondent's policy gave no real indication of what policy violations justify instant dismissal. I am satisfied on the evidence that the Applicant had an opportunity to respond to the allegations made in accordance with Section 170 DC of the Act and availed himself of that opportunity however, the Respondent in failing to comply with its own termination of employment policy denied the Applicant procedural fairness in the termination process. Moreover, at no stage was the Applicant warned verbally, in writing or through the guidelines contained in the PPI Manual that he would be dismissed instantly if he failed to strictly adhere to the cash handling procedures and recapping procedures contained in the PPI Manual. It is instructive to note that even the Respondent had difficulty in characterising the Applicant's conduct as misconduct. The reason given for terminating his employment in the Employment Separation Certificate (see Exhibit A3) was "unsuitability for this type of work" not "misconduct". In the four years of his employment the Applicant clearly showed sufficient merit to be promoted and transferred to work in a store where the Respondent had experienced problems. His 1993 performance review refers to an improvement in the store's takings under his management. Having regard to the abovementioned circumstances I am satisfied that the termination was for the purposes of s.170DE(2) of the Act harsh, unjust and unreasonable in that explicit warnings were not given to an employee of some four years of service and the same employee was not given an opportunity to mend his ways knowing that he faced dismissal if he did not accept and implement the Respondent's cash handling and recapping policies. Remedies The Applicant seeks reinstatement. I am not satisfied that this is a case where reinstatement is appropriate. Throughout the hearing I was troubled by the Applicant's stubborn refusal to acknowledge until pressed that he had been disciplined on earlier occasions, albeit without being explicitly warned as to the likely consequences of policy violations, and the Applicant's anger because he was given a formal counselling report when the contents of the report were an accurate record of his conduct. The Applicant made it clear that he did not accept criticism and discipline from his employer in matters which the employer regarded as important and, in this and other matters, ignored the employers policies when it suited him to do so. For instance, in taking a slab of coke on Wednesday 25 May 1994 and scanning that slab through the store's register 40 times in order to record a sale he further breached the Respondent's cash handling policies. This breach did not come to the Respondent's attention until the date of the hearing and the giving of the Applicant's evidence. I accept the Respondent's evidence that this was an additional breach of its policies given the impact this conduct could have on its accounts. Indeed, it appears to have been a rather clumsy attempt to correct the audit variances or overcome the failure to ensure that the receipts were deposited in the bank on a daily basis. Taking all these matters into account this appears to be a case where the Applicant's future with the Respondent was limited because of his reluctance to abide by company policy and at best the Respondent's procedural irregularity deprived him of his opportunity to retain his employment. (See Byrne -v- Australian Airlines Limited (1994) 120 ALR 274 per Black CJ at 285 and Nicolson -v- Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233). This finding therefore must have some considerable bearing on the quantum of the compensation payable. At the date of termination the Applicant was receiving $625.00 gross per week. Despite making numerous applications for employment the Applicant did not obtain further employment until September 1994 as a casual console operator earning approximately $225.00 gross per week. From approximately 1 month after the termination the Applicant received $148.00 per week in unemployment benefits. It follows from my earlier finding that this was not a case of serious misconduct justifying instant dismissal that, in failing to give the Applicant a minimum of 3 weeks notice, the Respondent breached s.170DB of the Act. Accordingly, the Applicant is entitled to a damages award in the sum of $1,875.00. Taking into consideration the damages award, unemployment benefits received for one month and the loss of the opportunity to retain his employment I have assessed compensation payable at $2,950.00; being the balance of two months gross salary. MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The termination of the Applicant's employment by the Respondent contravened Division 3 of part VIA of the Industrial Relations Act 1988. 2. The time for making this Application be extended to 9 August 1994. 3. The Respondent pay the Applicant damages pursuant to s.170EE(5) of the Industrial Relations Act 1988 in the sum of $1,875.00. 4. The Respondent pay the Applicant compensation in the sum of $2,950.00. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding twenty-two (22) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 10 March 1995 Solicitors for the Applicant: AFMEU, Vehicle Division Solicitor for the Applicant: Mr M Perica Solicitors for the Respondent: Freehill Hollingdale & Page Counsel for the Respondent: Mr F Parry Date of hearing: 11 November 1994 & 7 December 1994 Date of judgment: 10 March 1995 C A T C H W O R D S INDUSTRIAL LAW -Termination of Employment - summary dismissal - whether termination harsh, unjust or unreasonable - Respondent's failure to comply with its termination of employment policy. Industrial Relations Act 1988 ss.170 DB, 170 DC, 170 DE(1), 170 DE(2), 170 EA, 170 EA(3), 170EE(5). Byrne -v- Australian Airlines Limited (1994) 120 ALR 274 Nicolson -v- Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 JEFFREY MARK TABONE & ANOR -v- STRASBURGER ENTERPRISES INC No. VI 852 of 1994 Before: Judicial Registrar Millane Place: Melbourne Date: 10 March 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 852 of 1994 B E T W E E N : JEFFREY MARK TABONE & ANOR Applicant AND STRASBURGER ENTERPRISES INC Respondent MINUTES OF ORDERS Judicial Registrar Millane 10 March 1995 THE COURT ORDERS THAT: 1. The termination of the Applicant's employment by the Respondent contravened Division 3 of part VIA of the Industrial Relations Act 1988. 2. The time for making this Application be extended to 9 August 1994. 3. The Respondent pay the Applicant damages pursuant to s.170EE(5) of the Industrial Relations Act 1988 in the sum of $1,875.00. 4. The Respondent pay the Applicant compensation in the sum of $2,950.00. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.