IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 2396 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: FRANK PRSKALO Applicant A N D DERRINGER PTY LIMITED (t/as BARETTI RESTAURANT CAFE) Respondent Reasons for Judgment - delivered ex tempore 10 April 1995 PARKINSON JR This application is made pursuant to S170EA of the Industrial Relations Act 1988. This matter was initially listed for hearing on 24 March 1995. Due to the non attendance of the respondent on that occasion, and advice that it had not received notice of the proceedings, the matter was adjourned to this day. An application for costs thrown away was made on that occasion by counsel for the applicant. That application was renewed in today's proceedings. I deal with this aspect of the matter later in this decision. The applicant's evidence was that he was employed full time as a second year cook at the respondent's restaurant on 31 October 1994 and that his employment was terminated two weeks after that date. The applicant's evidence is that he was employed upon interview by the respondent's head chef Mr Harry Lilai. His evidence was that at that interview he was informed of the duties of the position, and informed Mr Lilai of the premises where he had been previously worked. His evidence was that he understood his previous experience in a fine service restaurant to have been taken into account in employing him. His evidence was also that in the interview with Mr Lilai the issue of formal apprenticeship indentures did not arise. His evidence was that there was no discussion of his status as a formally indentured apprentice or otherwise. Further, his evidence was that he felt well qualified to apply for the position, having been employed in the industry and also having completed a full time 13 week certificate in catering. The submissions of the respondent were that the applicant had misrepresented his position by applying for the job which was advertised as second or third year chef when he had not completed that time, and was not a formally indentured apprentice. However, the respondent relied upon the applicant's application for employment (exhibit G1) which was not completed at the time of the engagement and which was only provided a week later on 8 November 1994. Further, the respondent's director Mr Charisiou informed the court that the issue was not specifically about formal indentures but rather about the level of skill of the applicant being up to what was expected of a second or third year apprentice. His evidence was that the issue of second or third year was a matter of assessment, and that the view of those skills may differ between the employer and employee. I am not satisfied that the applicant did misrepresent his qualifications to the respondent at any time, either at the point of engagement or in completing the application for employment documentation (exhibit G1) approximately one week after his engagement. I find that the applicant applied bona fide for a position with the respondent and was engaged on that basis. The applicant's evidence is that his employment was terminated on Sunday 13 November 1994 by the head chef, Mr Lilai, by whom he was advised that the reason for the termination was due to financial difficulties of the respondent. In the course of these proceedings it was put to the applicant that the reason for the termination was his poor work performance and that this matter had been brought to his attention prior to the termination of his employment. The applicant denied that this was the case and there was no reliable evidence to the contrary which would support this submission. The respondent's director Mr Charisiou did not participate in either the employment or the termination of the employment of the applicant. His evidence in these proceedings does not assist the respondent in relation to the issue of work performance. Further, whilst it was alleged that there existed documents identifying that a warning had been given to the applicant, no such material was produced to the court. I accept the evidence of the applicant as to the reasons given for the termination of his employment, and find that there was no issue of work performance raised with him during the course of his employment. I accept the evidence of the applicant that his employment was terminated without notice on Sunday 13 November 1994 and, having regard to his evidence and to the evidence of Ms Jergovic, I am satisfied that the applicant has established that he worked on that day. I find that the respondent has not established that it had a valid reason for the termination of the applicant's employment and, further, that the applicant has established that the termination of his employment was harsh, unjust and unreasonable for substantive and procedural reasons. The alleged underpayment of wages The applicant claims that he was entitled to be paid an amount of $350.10 by way of notice upon termination of his employment. I accept that no notice was given. There was an issue in these proceedings as to what the contract provided for in terms of the applicant's hourly wage rate. The Restaurant, Catering and Accommodation Award, an award of the former Industrial Relations Commission, was tendered in the proceedings and relied upon as founding a contractual basis for a wage rate $ 8.753 per hour. This amount represents the base rate applicable to the classification in which the applicant was employed. I am satisfied that this is the rate of pay that the applicant was entitled to be paid and that the respondent was contractually bound to pay this amount. I therefore find that the applicant was underpaid by the respondent at termination and during the course of the employment in the sums of $350.10, $170.77, and $165.77. The orders of the court in its accrued jurisdiction to deal with the underpayment of wages claim, being a matter not arising out of a federal award, will be that such amounts be paid to the applicant. I further order having regard to my findings pursuant to S170DE(1) and (2) of the Act that the applicant be paid compensation pursuant to S170EE of the Act in the sum claimed of $4,201. 20. Applicant's application for costs I decline the application for costs against the respondent. I am not satisfied having regard to the circumstances of the absence causing the adjourned proceedings, in particular having regard to the respondent's history of participation in these proceedings, including conciliation, that there was on the part of the respondent a deliberate or contrived failure to attend. It is this latter matter which assists me in the exercise of my discretion in this regard. Further, it is of some doubt whether the provisions of S347 of the Act, confining the awarding of costs to circumstances where an application is initiated vexatiously or without reasonable cause, would extend in any event to the present circumstances. The orders of the court will be: 1. That the respondent pay to the applicant within 21 days of the date of this order an amount of $4201.20 in compensation pursuant to S170EE(3) of the Act. 2. That the respondent pay to the applicant within 21 days of the date of this order $350.10 in damages pursuant to S170EE(5). 3. That the respondent pay to the applicant within 21 days of the date of this order an amount of $ 336.54 being underpayment of wages during the employment. I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson delivered ex tempore. Associate: Dated: 10 April 1995 Solicitors for the applicant: Patrick Robinson & Co Counsel appearing for the applicant: Mr M Garnham Representative for the respondent: Mr A Maghraby Date of hearing: 10 April 1995 Date of judgment: 10 April 1995