Audrey Ann Day v Meadowbank Enterprises Pty Ltd as trustee for the Ashby Trust trading as The Curtain Lady [1995] IRCA 148

IN THE INDUSTRIAL RELATIONS ) No. WI 352 of 1994 COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY )

BETWEEN: Audrey Ann Day Applicant AND: Meadowbank Enterprises Pty Ltd as trustee for the Ashby Trust trading as The Curtain Lady Respondent

BEFORE: Boon JR PLACE: Perth HEARING DATES: 7 and 16 February 1995 JUDGMENT DATE: 12 April 1995

REASONS FOR JUDGMENT By an application filed 1 September 1994, Audrey Ann Day has applied to the court against her former employer, The Curtain Lady, seeking: 1. (a) an order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988; (b) an order that the respondent pay compensation to the employee; 2. Such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the respondent had not been terminated: see Section 170 EE of the Act.

The respondent's primary answer to the applicant's claim is that the applicant is excluded from the operation of S170 EA of the Act because, at the time of her dismissal, she was serving a period of probation. If it is found that the applicant was not serving a period of probation the respondent alleges a breach of contract and some misconduct by the applicant and states that implied warnings were given to the applicant prior to termination. Further, it was submitted that if it is found by this court that the termination infringed the provisions of the Industrial Relations Act, this court should consider whether the applicant would have continued in employment with the respondent for much longer if she had not been terminated.