Bianco v Polycarbonate Roofing Centre [1995] IRCA 278

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2298 of 1995 B E T W E E N BIANCO Applicant A N D POLYCARBONATE ROOFING CENTRE Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 8 June 1995 REASONS FOR JUDGMENT (EX TEMPORE) Revised from Draft Transcript By an application made on 31 March 1995 the applicant seeks compensation pursuant to Division 3, Part VIA of the Industrial Relations Act (the Act). He also seeks an order for the payment of outstanding annual leave entitlements for four days, totalling $400. The respondent has not appeared. The respondent was called outside court and it is noted from the court file that by a letter dated 11 April 1995, M. R. Autey, representing Graham Thornton, the receiver and manager, acknowledged receipt of a letter dated 3 April 1995 from the Court notifying the respondent of the claim for unlawful termination of the applicant's employment. The receiver and manager's letter to the Court, amongst other things, advised the Court that he did not, "wish to attend the hearing" of the claim. I am satisfied that the respondent has been given notice of this hearing. Accordingly the applicant's claim proceeded as an uncontested one. The applicant gave evidence that between 3 January 1994 and 17 March 1995 he was employed by the respondent as a manager on a gross weekly wage of $600. His salary package included a fully maintained motor vehicle, the benefits for which he estimated amounted to approximately $12,000 per annum. The respondent was at the relevant time in the roofing supply business with a number of stores at different locations. When the applicant commenced work he was trained at the Thomastown store for a couple of weeks before being sent to manage the newly opened Ballarat store; that store was operating profitably. On or about 20 January 1995, Daryl Murray, a director of the respondent company arrived at the Ballarat store, removed all its stock and closed the store immediately. The applicant was told that he would be transferred to the Thomastown store as a sales representative with the same salary package. The applicant agreed to this and spent approximately 2 weeks at the Thomastown store before being advised by Murray that he was being transferred to the Blackburn store as a manager. It appears that the former manager had been in the applicant's words, "profiting from the builders" and the applicant was told that he had the knowledge and the ability to get the store into better condition and achieve better sales. The applicant agreed to the abovementioned transfer and worked some 6 weeks at Blackburn until Friday, 17 March 1995, when he received a telephone call from Murray between 4 and 4.30 pm advising him that he could no longer pay the applicant's wage and that the respondent intended to close the store that night. It is the applicant's uncontested evidence that when he rang the Blackburn store on the following day it was open and he spoke to the new manager who had formerly managed the Dandenong store. However, the applicant does not dispute the advice from the receiver and manager to the effect that the receiver and manager was appointed on 22 March 1995. On the evidence it is apparent that the claim that the store was closing on the Friday night was not justified. It is the applicant's understanding that the business has since been sold. When Murray spoke to the applicant he sought the return of the motor vehicle on the same evening. The applicant resisted this request because he needed the vehicle to return to his home in Sunbury. However, on the following morning by arrangement he returned the vehicle to the Thomastown store where he received an employment separation certificate and his termination pay (Exhibit A2). The employment separation certificate states the reason for termination as, "shortage of work, cutting back staff". The applicant was paid $1094.05 on termination which appears to consist of his salary to the date of termination and some of his annual leave entitlement. On 10 May 1995 the applicant received a letter from the Department of Business and Employment (exhibit A3) confirming that that department had communicated with the receiver and manager who acknowledged the applicant's entitlement to 2 weeks pay in lieu of notice as well as 4 days outstanding annual leave. This means that the applicant is entitled to an order pursuant to section 170DB of the Act for the sum of $1200 gross. He is also entitled to an order for arrears of annual leave in the sum of $400 gross. Otherwise the applicant seeks compensation. He has not been employed since 17 March 1995 despite registering with the CES and submitting numerous job applications. The 38 year old applicant has managerial experience and some formal qualifications from the Broadmeadows College of TAFE and the Dandenong College of TAFE. From mid April 1994 the applicant has received a Job Search allowance of $136 per week. On the evidence, I find that the applicant's employment was terminated on 17 March 1995. The respondent has not defended this proceeding and therefore offers no valid reason for the termination of the applicant's employment in the circumstances described by the applicant. This being so, the respondent has breached the requirements of the Act and such termination as occurred was unlawful. The evidence that the business has been, or is being, sold leads to the conclusion that it would be impracticable to reinstate this man. Taking into account the benefits received by the applicant I have assessed appropriate compensation at $5000 and the orders the court makes are that within 14 days of the date of these orders: 1. The respondent pay to the applicant the sum of $1200 damages pursuant to section 170EE(5) of the Industrial Relations Act 1988 2. The respondent pay to the applicant the sum of $5000 compensation 3. The respondent pay to the applicant the sum of $400 for annual leave arrears. 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: 26 June 1995 Applicant in person No appearance for the Respondent (Company in receivership) Date of hearing: 8 June 1995 Date of judgment: 8 June 1995