ROBERT CHARLES WESTON AND WHITE VILLAGE GREEK TAVERN [1995] IRCA 351

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2910 of 1995 B E T W E E N : ROBERT CHARLES WESTON Applicant AND WHITE VILLAGE GREEK TAVERN Respondent Before: Judicial Registrar Chancellor Place: Melbourne Date: 21 July 1995 REASONS FOR JUDGMENT (Ex Tempore) (Revised from Transpcript) In this matter, there has been no appearance on behalf of the respondent, the White Village Greek Tavern. The applicant has given evidence that he handed a copy of the application in this matter personally to the gentleman who owns and runs the business known as the White Village Greek Tavern, Mr Alex Panadropoulos, on 8 June 1995 - Mr Panadropoulous acknowledged receipt of the document. He said that he would have his lawyer have a look at it and would respond. The applicant has heard nothing from the White Village Greek Tavern since that date. I note that the court sent a copy of a letter to the White Village Greek Tavern advising it of today's hearing date, and I also note that the respondent has been called in the vicinity of the court, but there has been no appearance. In the circumstances, I am prepared to proceed with the matter as an undefended matter. Mr Weston gave evidence that he is 18 years old, that he completed his VCE at the end of last year, and had a short period of part time kitchen hand work earning $7 per hour. His VCE included subjects that aimed him toward a career in the cooking, kitchen industry. He registered with the CES, and on 13 January he commenced employment with the White Village Greek Tavern following a referral from the CES. He was interviewed by Alex Panadropoulous. He was told that he would be put on a week's trial. At the end of the week, he was told that he would get a position as an apprentice chef, and that the papers would be signed soon. Mr Panadropoulos did not produce any papers, and eventually, Mr Weston had to go and get them from the William Angliss College, and he did that in about mid-March. Mr Panadropoulous still delayed in signing the papers. Mr Weston worked five or six days per week, generally eight or nine hours per day from 2 pm. His main responsibility involved assisting in cooking the evening meals at the tavern. Mr Weston gave evidence that Mr Panadropoulous indicated to him that he was happy with his work, and that he would be happy to keep him on for the full four year apprenticeship. He had also told Mr Weston's parents that he was happy with their son's work. Mr Weston is unable to recall any specific complaints or criticisms of his performance. On 26 April 1995, Mr Panadropoulos went out and left the two apprentice chefs, including Mr Weston, to perform their duties. When he returned, he berated them saying that there had been insufficient work done. He indicated what he thought had not been done. He said that there was not enough work done in what Mr Weston described as a one sided argument, and the employment of both apprentice chefs was terminated at that stage. As I said earlier, there had been no prior warning or counselling or suggestion that Mr Weston's employment was at risk. The next day Mr Weston attended in an attempt to obtain a reference. He was told that he would be given a reference, but has not received one. Mr Weston did not receive any pay in lieu of notice. Since the termination of his employment, Mr Weston has attempted to find work, primarily as an apprentice chef. He has been to approximately 10 interviews, but at this stage has been unsuccessful. Part of the reason has been the fact that he does not have a reference from his prior employer, and if the businesses interviewing him ring the employer, it appears that they do not get a satisfactory response. This appears to have affected his ability to obtain work. He has been working part time at McDonalds since late June or early July earning $8.70 per hour, and earning about $60 to $65 per week. He lives at home with his parents and has been in receipt of a Job Search Allowance. I find that the termination of Mr Weston's employment by the respondent was in breach of section 170DE of the Act, in that there does not appear to be a valid reason for termination as it has not been established to my satisfaction that Mr Weston was not completing sufficient work. Further, even if there was a valid reason for termination, it appears that the termination was harsh, unjust or unreasonable on the basis that Mr Weston was given no warning or counselling or no suggestion prior to 26 April that his job was in any way in jeopardy. Mr Weston does not seek reinstatement, and given the unsavoury circumstances in which his employment was terminated and the small nature of the business, it seems that reinstatement is impracticable. In the circumstances, I believe that it is appropriate to order compensation in this case. In taking into account an appropriate figure for compensation, it seems that Mr Weston was out of work for a period of approximately two months. He had only worked for a very short period of time, and has a very limited employment history. He has successfully found part time work, and obviously has good prospects of obtaining full time work in the near future. In the circumstances, I believe it is appropriate to award in the vicinity of two months wages with respect to compensation and I order compensation in sum of $1750. There has also been a breach of section 170DB of the Act in that Mr Weston was not paid one week's pay in lieu of notice, and there will be a further order that he be paid damages in the sum of $203 pursuant to that section. The total sum payable by the respondent to the applicant is $1953, and I will order that that sum be paid by the respondent to the applicant within the next 21 days. I also order that a copy of this decision and of the order be forwarded to the respondent forthwith. MINUTES OF ORDERS THE COURT ORDERS: 1. That the Respondent pay the Applicant the sum of $203 being one week's salary in lieu of notice and the sum of $1,750 by way of compensation, a total of $1,953, within 21 days. 2. That a copy of this decision and of the order be forwarded to the Respondent forthwith. I certify that this and the preceding four (4) pages are a true copy of the reasons for judgment of Judicial Registrar Chancellor. Associate: Dated: Applicant appeared in person No appearance for the Respondent Date of hearing: 21 July 1995 Date of judgment: 21 July 1995