Rodney Anthony Marchesi v Charles Wilson Tuckey (Chairman of the Western Australian Turf Club) [1995] IRCA 120

IN THE INDUSTRIAL RELATIONS ) No. WI 333 of 1994 COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) RODNEY ANTHONY MARCHESI - Applicant CHARLES WILSON TUCKEY (Chairman of the Western Australia Turf Club)

BEFORE: BOON JR PLACE: PERTH DATE:23 February 1995

EX TEMPORE REASONS FOR JUDGMENT

By application dated 25 August 1994, the applicant claims: (1) An order declaring the respondent's termination of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988; (2) An order requiring the respondent to reinstate the employee; (3) An order that the respondent pay compensation to the employee; (4) Such other order or orders as will put the employee in the same position as nearly as can be done if the respondent had not terminated the employee's employment. The applicant has now abandoned his claim for reinstatement and I am satisfied with the material before me that it would not be practicable to order reinstatement. In an affidavit sworn 26 August 1994, the applicant stated that he was employed by the respondent on a regular and systematic basis for a sequence of periods of employment between 26 December 1979 and 11 August 1994 on race days, normally Wednesdays, Saturdays and public holidays falling on Mondays. That evidence has not been challenged and the respondent concedes that the applicant was employed for a period of some 13 years. The applicant was initially employed by the respondent as a car park attendant, then as a race book seller, turnstile operator and token seller. In approximately 1985, he was appointed by the respondent as a senior supervisor of gate keeping. On 8 June 1994, his designation was changed to gates manager of the respondent although his duties essentially did not change. At the date of termination of his employment, his duties included overall supervision on race days of manning levels at Ascot and Belmont race courses for gate keepers, car park attendants, security staff and miscellaneous other workers with two supervisors reporting to him, overseeing the provision of staff for gate keeping, car parking, security and related tasks by a contractor and other duties. When he was employed by the respondent as its gates manager he was employed pursuant to an oral contract of employment working approximately 25 hours per week at an hourly rate of $19.25 gross. On 11 August 1994 there were some discussions between the applicant and his employers. As a result of this meeting the applicant's employment was terminated. On Friday, 12 August 1994 he attended the respondent's premises to collect the moneys he was owed totalling $8379.92, comprising four weeks pay in lieu of notice in the sum of $2084.35 at an hourly rate of $18.69 instead of a new hourly rate of $19.25; pro-rata long service leave in the sum of $5872.57 and $423 reimbursement for telephone expenses. In his initial affidavit, the applicant states that the remedies he seeks from this court are: (1) an order that the respondent reinstate him as its gates manager and an order that the respondent pay to him the sum of $481.25 per week as wages for the period 12 August 1994 up to the date of his reinstatement or (2) that the respondent pay him the sum of $15,000 as compensation for the manner in which its unlawful termination of his employment has diminished his prospects of re-employment in the horse racing industry such that he is now unlikely to be able to find alternative employment in the industry on conditions as attractive as those which he enjoyed whilst employed by the respondent; (3) damages to be assessed for the damage to his professional credibility and reputation as a result of the termination; and (4) damages to be assessed for the anxiety, stress, humiliation and loss of self-esteem which he suffered as a result of the termination. In his initial affidavit the applicant states that his position with the respondent was not redundant and that on 13 August 1994, the respondent allocated the duties which he previously performed to Mr Brian Brosnan, one of the supervisors who was previously responsible to the applicant. The duties which he carried out as gates manager are still being carried out. The matter went to directions hearings on 29 September 1994 and 18 November 1994. At the latter directions hearing, an order was made that the respondent provide the applicant with formal discovery on affidavit on or before 2 December 1994. On 9 December 1994, the respondent filed an affidavit by its chief executive officer stating: In accordance with the directions given by the court at directions hearing on 1 December 1994, the following documents are offered for discovery: (1) All documents which constitute the personnel file of Rodney Anthony Marchesi. (2) There are no documents relevant to the restructuring of the position of gates manager. (3) Personnel files of other employees of the West Australian Turf Club will not be released as they are not relevant to the application. At a directions hearing on 11 January 1995, Judicial Registrar Wheeler made the following order: (1) That within 7 days from the date of this order, the respondent make and serve on the applicant a list of documents which are or have been in its possession, custody or power, relating to any matter in question and an affidavit sworn by an authorised officer of the respondent verifying that list together with a certificate of correctness signed by the respondents authorised representative. (2) The list of documents, affidavit and certificate are to be in compliance with form number 22 of the Industrial Relations Court rules. (3) Within seven days thereafter the respondent produce for inspection to the applicant and to his solicitor all documents contained in the list of documents at the offices of Messrs Jackson McDonald at 81 St George's Terrace, Perth at a mutually convenient time. (4) Unless the respondent complies with orders (2) and (3) above within the stipulated time frame judgment will be entered for the applicant against the respondent in an amount to be fixed. That order was not complied with and on 30 January 1995 Deputy District Registrar Richardson ordered that: Pursuant to the order Judicial Registrar Wheeler made on the 11th day of January 1995 whereby it was ordered that judgment be entered for the applicant against the respondent in an amount to be fixed, unless within 7 days the respondent complied with the order to provide a list of documents which are or have been in the respondent's possession, custody or power, relating to any matter in question and an affidavit sworn by an authorised officer of the respondent verifying that list together with a certificate of correctness signed by the respondent's authorised representative, in compliance with form number 22 of the Industrial Relations Court Rules and default having been made it is this day adjudged that the respondent do pay the applicant compensation to be assessed. This matter now comes before me for assessment of compensation. By an affidavit sworn 14 February 1995 which was not challenged by the respondent, the applicant states that: The termination pay of $8340.08 which the respondent paid to me on 12 August 1994 was calculated on an incorrect hourly rate of $18.69 instead of the hourly rate of $19.25. Consequently, the respondent owes me the sum of $383.16 being the difference in my termination pay when calculated at the correct hourly rate of $19.25. The respondent has conceded that error. Further in that affidavit, the applicant states that: Although in my application initiating these proceedings, I sought reinstatement to my previous position as gates manager at the Western Australia Turf Club I have reassessed my position, I now no longer seek reinstatement. As I have said above, I am satisfied that it is impracticable to order reinstatement in this case. The applicant further states: I was employed by the Turf Club for an average of 27.88 hours per week calculated over a 12 month period as calculated by the Turf Club in its computer generated print out setting out my long service leave entitlements. It states I have been losing remuneration calculated at $19.25 per hour totalling $536.69 per week since my termination of 12 August 1994 up to and including 14 February 1995, a 26˝ week period totalling $14,222.29. From this I understand that the amount of $2084.35 gross should be deducted, this being the 4 weeks I was paid in lieu of notice. In the circumstances I have lost benefit of the sum of $12,137.94 following my unfair dismissal. In paragraphs 9 and 10 of that affidavit, the applicant claims that as the respondent has stated that his position of gates manager with the Turf Club was made redundant on 11 August 1994 (which statement he denies) he seeks, over and above the long service leave payment of $5872.57 gross that he received on termination, redundancy payments calculated on the basis of 2 weeks pay for each year of service. He was employed by the Turf Club for a total of 13.626 years and based on $1073.38 being 2 weeks pay at $563.69 per week he is owed $14,625.88 by way of redundancy payments.