Mark Archilles Vistarini v Barham District Services Memorial Club [1995] IRCA 308

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1546 of 1995 B E T W E E N : MARK ARCHILLES VISTARINI Applicant AND BARHAM DISTRICT SERVICES MEMORIAL CLUB Respondent Before: Judicial Registrar Fleming Place: Melbourne Date: 4 July 1995 REASONS FOR JUDGMENT (EX-TEMPORE - Revised from Draft Transcript) The Applicant was employed by the Respondent for eight years, working his way up from a position as casual bar staff, to be assistant manager and later operations manager, just prior to his termination of employment. There were no performance issues raised in this proceeding. The main issue is whether or not the redundancy constituted a valid reason for termination. The Respondent has not proved to the court's satisfaction that the redundancy was based on the down-turn in operations of the Respondent. There was some evidence produced in relation to the deficit of approximately $317,000.00, but this was not conclusive evidence of a down-turn in operations and Mr Holland's own evidence is that the assets of the Respondent are approximately $11.7 million. It is this court's view that the decision to make the Applicant's position redundant was not reasonable. I make that finding further on the basis that some employees who were made redundant were later re-employed such as Mr McGowan, Mr O'Connell and Mr Hancock. Even if this court were to determine that the decision of the Respondent was valid, this court makes a finding that the way in which the Applicant's employment was terminated was harsh, unjust and unreasonable. To use Wilcox CJs words in Nicolson v Heaven and Earth Gallery Pty Ltd [1994] 126 ALR 233, the Applicant was not given a "fair go". While on one week's annual leave, he was asked to telephone Mr Holland. Mr Holland knew he was away on holiday however Mr Holland still attended at the Applicant's home and left a message for him to telephone. When the Applicant telephoned Mr Holland, he was told he would be dismissed on his return. When he returned he spoke to Mr Holland on the Saturday (or the Sunday, the evidence is not clear) about the redundancy and Mr Holland's evidence is that no option of an offer of employment was put to the Applicant on that weekend. On 31 January at the Board Meeting the redundancy was formalised and on that day, Mr Vistarini was offered another position for which the annual salary was $32,000.00, the position being that of Mechanic/Groundsperson. Mr Vistarini was not qualified in either mechanics or grounds work. His terms and conditions prior to his redundancy were an annual package of approximately $60,000.00. It is not surprising the Applicant refused the offer. The Respondent has breached Part IVA division 3 of the Act. I propose to reinstate the Applicant. It is not impracticable to do so. Mr Holland gave evidence that there are approximately 90 employees currently employed by the Respondent. This is a large operation and I have no doubts it is run very well by Mr Holland and the board of directors. There is a large sports complex out of town and the Services club is in the town centre. Reinstatement is the primary remedy in the Act. I have no doubt that it is practicable in these circumstances. It is the court's view that the Applicant and the Respondent can have an ongoing employment relationship that will be fruitful. MINUTES OF ORDERS THE COURT ORDERS: 1. That the employee be reinstated to the position in which he was employed immediately before the termination, or to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination. 2. That the Applicant's employment be deemed to be continuous. 3. That the employer to pay to the employee the remuneration lost by the employee because of the termination in the amount of $11,943.00 which takes into account the amount of $4,500.00 earned by his employment in the interim, less $155.50 earned from the Department of Social Security and less his redundancy payment in the amount of $4,053.00. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming. Associate: Dated: Solicitors for the Applicant: Embleton & Associates Counsel for the Applicant: Mr Peter Harris Representatives for the Respondent: Barham District Services Memorial Club Counsel for the Respondent: Mr V Barry Date of hearing: 4 July 1995 Date of judgment: 4 July 1995