Barry John Lee and Strathfield Car Radios [1995] IRCA 85

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI 2805 of 1994

BETWEEN:

barry john lee Applicant

AND

strathfield car radios Respondent

REASONS FOR JUDGMENT (EX TEMPORE) (Revised from Draft Transcript)

2 March 1994 Judicial Registrar Fleming

Initially in this application there seemed to be some dispute as to whether or not this was a termination or a resignation. It, however, has been conceded by the employer that it is a termination of employment. Having made that finding I now make the following decisions.

The respondent has submitted that the applicant abandoned his employment on Saturday, 10 December 1994 by leaving the respondent's premises without permission. This has been the reason given to him for his termination. Mr Funk, who was the acting manager on that day was called to give evidence and his evidence is consistent with the evidence of Mr Lee that he gave permission to Mr Lee to leave work on that day.

I find that the applicant did not abandon his employment on 10 December 1994, on the basis of Mr Funk's evidence and on Mr Lee's evidence. Mr Theophylactou was a helpful witness but he was unable to dispute the evidence of Mr Funk and/or of Mr Lee. Accordingly I find that there was no valid reason given for the termination of Mr Lee's employment and I find in the circumstances that the termination was harsh, unjust and unreasonable and in breach of the provisions of the Industrial Relations Act, in particular section 170DE and I make the following orders. Even although the applicant does not seek re‑instatement the respondent has said that it would be prepared to offer re‑instatement. As re‑instatement is the primary remedy of the act I propose to order re‑instatement and the order is a follows:

1. That the respondent re‑instate the applicant by re‑appointing him to the position in which he was employed immediately before the termination of his employment;