John A Pywell, Richard A Stanczak & Michael J Parker v Brian Coffey's Unique Kitchens Pty Ltd [1995] IRCA 222

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2734, 2745, 2893 of 1994 B E T W E E N : JOHN A. PYWELL, RICHARD A. STANCZAK & MICHAEL J. PARKER Applicants AND BRIAN COFFEY'S UNIQUE KITCHENS PTY LTD Respondent Before: Judicial Registrar Murphy Place: Ballarat Date: 16 May 1995 REASONS FOR JUDGMENT (Ex Tempore, Revised from Transcript) In these three proceedings, each of the applicants allege that the respondent has breached subdivision C of Part VI A of the Industrial Relations Act in terminating their employment on 4 November 1994. The applicant John Pywell was employed by the respondent as a cabinet maker from 13 August 1984. The applicant Richard Stanczak was employed as a cabinet maker from 20 September 1993. The applicant Michael Parker was employed from 8 July 1991. Their employment was governed by the Furnishing Trades Award. On 4 November 1994, each of the applicants received written notice from the respondent that their employment was terminated forthwith. The notice indicated that due to the financial position of the respondent, it was unable to pay termination payments. Mr Coffey, a director of the respondent, appeared but did not contest the entitlements of the applicants. In their applications each of the applicants seek various entitlements under the Furnishing Trades Award which were not paid by the respondent. The Court heard evidence from an Inspector with the Commonwealth Department of Industrial Relations, Mr Craig Darcy, who had conducted an investigation as to their entitlements. The applicant Pywell's entitlements I find on the evidence were the following amounts which have not been paid to date: Payment in lieu of notice $1760. Unpaid wages $440. Annual leave $1760. Redundancy $3520. Superannuation contribution $168. Long service leave $3899.94. Total $11,547.94. The applicant Pywell sought to claim an amount in lieu of notice under section 170DB of the Act and to claim the balance of the entitlements under the accrued jurisdiction of the Court. In relation to the applicant Stanczak, I find that his entitlements were as follows: Payment in lieu of notice $880. Unpaid wages $440. Annual leave $1445.40. Redundancy $1760. Superannuation $168. Total $4693.40. Mr Stanczak also sought to make a claim for payment in lieu of notice under section 170DB of the Act and the balance of the claims under the accrued jurisdiction of the Court. I find that the applicant Parker had the following entitlements: Payment in lieu of notice $290. Unpaid wages $290. Annual leave $928. Redundancy $2030. Superannuation $84. Total $3692. The counsel for the applicants also sought interest on the outstanding entitlements of the applicants and costs. In relation to interest, section 482 of the Act provides that the Court may order interest in proceedings for recovery of money, including a debt or damages. I am satisfied that the Court has jurisdiction to award interest in these proceedings. Findings in relation to the matters I find that in relation to each of the applicants, the respondent has breached section 170DB of the Act in that it failed to give the applicants notice required under that provision. I am also satisfied that the termination of the applicants' employment was harsh, unjust or unreasonable under section 170DE of the Act for the reason of the failure of the respondent to pay the applicants' entitlements under their award. I am satisfied that under section 170EE it is impracticable to order re-instatement and that the applicants are entitled under section 170EE(5) to an award of damages for non payment for the breaches of section 170DB of the Act. I am not prepared to make any other order in relation to compensation under section 170EE, but I am satisfied that the applicants are entitled to orders for the amounts claimed in the accrued jurisdiction of the Court. I therefore make the following orders: THE COURT ORDERS: THAT WITHIN 21 DAYS OF THIS DATE: In the matter of John A. Pywell v Brian Coffey's Unique Kitchens Pty Ltd: VI 2734 of 1994: The respondent pay to the applicant: - 1. damages in the sum of $1,760; 2. the sum of $9,787.94 and $577.40 interest. In the matter of Richard A. Stanczak v Brian Coffey's Unique Kitchens Pty Ltd: VI 2745 of 1994: The respondent pay to the applicant:- 1. damages in the sum of $880; 2. the sum of $3,813.40 and interest of $234.67. In the matter of Michael J. Parker v Brian Coffey's Unique Kitchens Pty Ltd: VI 2893 of 1994: The respondent pay to the applicant:- 1. damages in the sum of $290; 2. the sum of $3,332 and interest of $181.10.