Michael Joseph Neary and Lindmark Holdings Pty Ltd t/as LJ Hooker Greenwood [1995] IRCA 89

INDUSTRIAL RELATIONS COURT OF AUSTRALIA PERTH DISTRICT REGISTRY N0. WI 266 of 1994

Between: MICAHEL JOSEPH NEARY Applicant And: LINDMARK HOLDINGS PTY LTD t/as L.J. HOOKER GREENWOOD Respondent

Before: Judicial Registrar TOMLINSON Place: Perth Hearing Date: 22 February 1995 Judgement Date: 22 February 1995 REASONS FOR JUDGMENT (EX-TEMPORE) REVISED FROM TRANSCRIPT This is an application under section 170EA of the Industrial Relations Act, filed by Michael Joseph Neary, matter number WI 266 of 1994 against Lindmark Holdings Pty Limited, M and I Taylor as L.J. Hooker Greenwood being noted as the respondent. The applicant, Mr Neary, claims an order that the termination of his employment contravened Division 3 of Part VIA of the Industrial Relations Act 1988 ("The Act"). The applicant further seeks compensation together with an order or such orders as would put him in the same position as nearly as can be done if the employment had not been terminated. In that regard the applicant relies on section 170EE of the Act. It is noted that this applicant does not seek reinstatement. Mr Neary advised the Court that he commenced work on 18 April 1994 as a sales representative on a commission basis with the respondent, L. J. Hooker, at Greenwood. The applicant was terminated on 4 July 1994. He advised the Court, on the morning of 4 July 1994, at a sales meeting, he advised at that meeting that he obtained an offer on a property which his employer company offered for sale and that that offer was considerably lower than the recommended market price. The applicant stated he was advised that the company, his employer, was not prepared to submit that offer to the vendor. It would appear from the information presented by Mr Neary that he was extremely distressed at the treatment being accorded to the prospective purchaser and wished to do something to help that purchaser locate a property, as it would seem to him that that offer would not be put to the vendor. Mr Neary told the Court that he then felt obliged immediately to commence making telephone calls to satisfy that particular purchaser and to obtain a suitable property. From the information before the Court, it appears that various conversations became heated and at some point during that morning he was told that he was fired. Mr Neary wished to call further witnesses and wished to seek an adjournment to have these proceedings come before the Court at a later date in order to prove certain tenets of his claim. The Court felt that as the originating process was dated 1 August 1994 and that the matter had been dealt with by way of call over on several occasions and it had been to conciliation, it was appropriate that the matter be dealt with on the day it was listed for hearing. Mr Michael Kenneth Taylor gave evidence on behalf of the respondent. He advised the Court that he was a co-director of the respondent. He gave his occupation as a garage proprietor. It was common ground between the parties that there was a sales meeting on the Monday morning of 4 July 1994. Mr Taylor advised the Court that he personally requested the applicant to join the meeting and to desist making the telephone calls which - it was common ground between the parties - were being made by the applicant. As a result of a discussion between the applicant and other members present at the sales meeting, Mr Taylor advised the Court that the applicant simply stood up and said that he was resigning and that he "didn't have to take this" or put up with the conduct that was being accorded to him. This Court notes that by an affidavit dated 7 September 1994, the witness, Mr Taylor, set out in detail in subparagraph (c) of paragraph 3, that he was of the view the applicant was not dismissed but that the applicant became agitated and disrupted the meeting on a number of occasions. It appears that this affidavit by the respondent has been filed and served on the applicant and that the applicant had taken no steps to refute those allegations in a formal manner. It is common ground that the applicant obtained alternate employment immediately after he walked out of the office of the respondent. Having heard evidence from a Ms Brailey, a licensed real-estate sales representative, I am of the view that it is possible that the prior employment was not pre-arranged prior to the meeting of L.J. Hooker Greenwood on the morning of 4 July 1994. However, I am forced to conclude that when he left the premises, the applicant no longer wished to be employed by the respondent. It is my opinion that the applicant was not terminated, that there has been no unlawful termination, and it is my opinion that the applicant resigned voluntarily. I consider the application should be dismissed. There is no basis for any award of compensation. ______________________________________________ I certify that this and the proceeding two (2) pages are a true copy of the Reasons for Judgment of Judicial Registrar Tomlinson as recorded in the draft transcript and revised by the Judicial Registrar. Associate: Jeynelle Moffat