Hayden and Golden Bowl Sports Centre Pty Ltd [1995] IRCA 225

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DECISION NO: 225/95 C A T C H W O R D S INDUSTRIAL LAW - Industrial Relations Act 1988 ss.170EE, 170DB Industrial Relations Regulations - Rule 7, sub-rule (2) and sub-rule (3) CASES: HAYDEN -v- GOLDEN BOWL SPORTS CENTRE P/L No. VI 0453 of 1994 Before: Judicial Registrar Millane Place: Melbourne Date: 8 May 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 0453 of 1994 B E T W E E N HAYDEN Applicant A N D GOLDEN BOWL SPORTS CENTRE PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 8 May 1995 THE COURT ORDERS THAT: (1) The termination of the applicant's employment by the respondent contravened Division 3, Part VI(A) of the Industrial Relations Act 1988; (2) The respondent pay the applicant damages pursuant to section 170EE(5) of the Industrial Relations Act 1988 in the sum of $576.92; and (3) The respondent pay the applicant compensation in the sum of $15,000. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 0453 of 1994 B E T W E E N HAYDEN Applicant A N D GOLDEN BOWL SPORTS CENTRE PTY LTD Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 8 May 1995 REASONS FOR JUDGMENT (EX TEMPORE) (Revised from Draft Transcript) By an application made on 14 May 1994 the applicant seeks compensation pursuant to Division 3, Part VI(A) of the Industrial Relations Act (the Act). It is alleged that on 12 April 1994 the applicant's employment as a fitness Director by the respondent was terminated in breach of the Act; that is to say without a valid reason. The applicant was employed from 16 March 1993 to the date of termination. On that date he received a memorandum from Brian O'Halloran (Exhibit A1) effectively altering the terms and hours of his employment as a fitness director. The memorandum also set out six reasons numbered (a) to (f) inclusive, relied upon by the respondent in making the decision to alter the terms of the applicant's employment. Suffice to say that each of the reasons insofar as they purport to be critical of the applicant's performance of his duties have been denied by the applicant on oath. This matter first proceeded before the Court in November 1994 and was adjourned to 2 December 1994 to allow the parties to make formal submissions on the admissibility of after-acquired evidence the respondent sought to rely on in defending the applicant's claim. On 14 December 1994 written reasons for ruling in favour of the admissibility of such evidence were handed down and are incorporated in this judgment. Because the parties required more time to prepare their respective cases this matter was further adjourned. It now seems that events have overtaken the hearing of the applicant's case as he has informed the Court that the respondent's health club business has ceased to operate and Coopers and Lybrand have been appointed receivers. The applicant confirmed this by speaking to the receivers directly. Before proceeding the respondent was called outside the Court. On 2 May 1995 the respondent's solicitors on the record, Messrs Phillips Fox, filed a notice of solicitor ceasing to act. Strictly speaking, the notice filed does not comply with the requirements of Order 45, Rule 7, sub-rule (2) and sub-rule (3), in that no affidavit has been filed to demonstrate compliance with the Rule. Accordingly, the solicitors for the purposes of this hearing remain the respondent's solicitors on the record. By letter dated 9 March 1995 the Court gave notice to the respondent's solicitors of this hearing date and in all the circumstances I am satisfied that the date for hearing has been brought to the respondent's attention. The applicant told the Court that when he sought time to consider the proposed changes to the terms of his employment contract O'Halloran told him to leave: "...right now and save myself the embarrassment of taking on the other duties upstairs". The applicant was paid his wages up to the date of termination and one week's wages in lieu of notice. The latter payment was one week less than the statutory minimum required by section 170DB (2)and, accordingly, the applicant seeks one week's wages by way of damages; namely $576.92. The applicant also seeks compensation for the maximum period of six months remuneration, that is to say $15,000. He has not obtained full-time employment since the termination which, in the absence of any valid reason or reasons, was unlawful. In the six months following the termination the applicant received some $1800 in unemployment benefits, payments for some personal fitness training and part-time work in a pizza shop. He now performs some work as a part-time fitness trainer and as a casual electrician but has yet to relocate himself in a permanent position equivalent to that lost. In the circumstances described I find that reinstatement is impracticable and that the appropriate compensation payable is $15,000. The orders I make are that: THE COURT ORDERS THAT: (1) The termination of the applicant's employment by the respondent contravened Division 3, Part VI(A) of the Industrial Relations Act 1988; (2) The respondent pay the applicant damages pursuant to section 170EE(5) of the Industrial Relations Act 1988 in the sum of $576.92; and (3) The respondent pay the applicant compensation in the sum of $15,000. I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: Solicitors for the Applicant: Counsel for the Applicant: Solicitors for the Respondent: Messrs Phillips Fox Counsel for the Respondent: Date of hearing: Date of judgment: 8 May 1995