Mark Christopher Wadeson v Major Service Station [1995] IRCA 374

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2881 of 1994 B E T W E E N : MARK CHRISTOPHER WADESON AND MAJOR SERVICE STATION Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 4 August 1995 REASONS FOR JUDGMENT (Ex Tempore) (Revised from Transcript) The Applicant seeks compensation alleging that on 13 December 1994 his employment as a service station console operator was unlawfully terminated by his employer identified as Major Service Station. Teresa Pietrzak has appeared today as the Respondent employer. It appears from the court file that two appearances were initially filed: one by the operator of the Major Service Station at Keysborough and another by Burmah Fuels Australia Limited, both denying that they were the relevant employer. In a letter to the court Burmah Fuels Australia identified Teresa Pietrzak and two others as the licensed agents of the service station at the relevant time. It further appears that although the certificate from the Industrial Relations Commission certifying that it was unable to settle the proceeding at conciliation names Burmah Fuels Australia Limited as the Respondent, Teresa Pietrzak actually attended the conciliation conference as the employer. Whilst Ms Pietrzak concedes that she did engage the Applicant in full time employment from late September 1994 to 13 December 1995 and, in her own name, entered into a job start agreement with the CES for a 13 week period, she alleges that a company of which she is a director, Welwilby Forge Pty Limited, in fact, paid the Applicant's wages. I am satisfied, on the evidence of the Applicant and Ms Pietrzak, that at the time the contract of employment was negotiated and entered in to, Ms Pietrzak was the employer operating the Major Service Station business at Keysborough. Whatever other arrangements she made for payment of wages, does not alter this contractual relationship. Accordingly, I order pursuant to Order 6 Rules 8 and 11 of the Industrial Relation Court Rules that Teresa Pietrzak be substituted for the named Respondent, Major Service Station, in this proceeding. Further, as Teresa Pietrzak appeared in person today and acknowledges, on oath, that she is the employer, I have dispensed with any requirement for a written notice of appearance to be filed and served. Insofar as there is a requirement that a matter, as amended, be referred to the commission for conciliation prior to this court considering the merits of the application, I am satisfied that this is not a matter that should be so referred following the change of Respondent. In exercising my discretion pursuant to section 170EC(b), I have taken into account Teresa Pietrzak's acknowledgment that she, in fact, attended the conciliation conference as the employer. The Facts The Applicant was employed for 36 hours per week at the rate of $344 gross per week. The Respondent alleges that from about June 1994 she tried to hand over the operation of the service station business to a new operator. It took until December 14, 1994 for this to happen. The Applicant gave evidence that in early December he was introduced to a new owner by the Respondent and he was then told by the Respondent, and this is not denied, that he would continue employment with the new owner. The Respondent alleges that she did tell the Applicant that there was no guarantee that he would remain in employment. There were no complaints concerning the 18 year old Applicant's conduct or performance. However, at 11.30 pm on 13 December 1994, the Applicant alleges he received a telephone call from the new owner telling him not to turn up for work the next morning or at all. He queried why this was so and did not receive a response. It is common ground that the Applicant received his pay until 13 December 1994 but he was not paid any holiday pay entitlements or any compensation in lieu of notice. The Respondent alleges that she handed the business over to the new owner as from 14 December 1994 and she was not aware of what occurred between the new owner and the Applicant on the evening of 13 December 1994. So far as she was concerned, there was no guarantee that his employment would continue. She told the court that she is Polish and new to this country and, as a result, is not familiar with any obligations she may have had to her employees under the Industrial Relations Act 1988 and, further, any obligation to pay holiday pay. She agreed that this latter sum had not been paid on the assumption that the Applicant was only training and was to continue with the new owner of the business. No evidence was adduced to show that the Applicant was employed pursuant to any training agreement or any period of probation. Termination I am satisfied on the abovementioned facts by her conduct that on 13 December 1994, the Respondent terminated the Applicant's employment and the reason for doing so was connected with the operational requirements of her business. I am further satisfied that neither compensation in lieu of notice nor holiday pay were paid to the Applicant. He also believes that superannuation contributions were not made. However, the Applicant is unable to confirm this for the purposes of this proceeding. Whilst the Respondent has demonstrated to the court that her business ceased to operate from 13 December 1994, and this is the basis for there being a valid reason for terminating the Applicant's employment, it is clear from the circumstances of the termination, that the Respondent acted harshly, unjustly and unreasonably in the manner in which she, through ignorance of her obligations, brought about the termination of the Applicant's employment. There was clearly no attempt to consult with the Applicant or mitigate the effects of the retrenchment on the Applicant. The Applicant was unemployed until 2 February 1995 when he started a food and beverage course in Queensland which lasted until 6 June 1995. From March 1995 he was engaged as a casual employee by Sizzler and earned approximately $1000 for the entire period of his casual employment. He was then engaged to pick strawberries for some four weeks. Since mid July he has been unemployed and in receipt of unemployment benefits. So far as compensation in lieu of notice is concerned, pursuant to section 170DB of the Act the minimum amount payable to this Applicant is $344 and this is payable under section 170EE(5) of the Act by way of damages. The Applicant seeks the payment of one weeks holiday pay. Relying on the accrued jurisdiction of this court, I propose to make an order for the payment of the sum of $304 for holiday pay. As the Respondent has ceased to operate the service station business at Keysborough, it is not practicable to reinstate this Applicant who, at this stage, only seeks compensation. In relation to the breach of section 170DE(2) of the Act, I propose to make a further order for compensation of two weeks pay in the sum of $688. MINUTES OF ORDERS THE COURT ORDERS THAT: (1) Pursuant to Order 6 Rules 8 and 11 of the Industrial Relations Court Rules, Teresa Pietrzak be substituted for Major Service Station as the Respondent to this proceeding and that the title of the proceeding is amended from the date of this order; (2) Any requirement for a written appearance to be filed and served by the Respondent Teresa Pietrzak be dispensed with; (3) The proceeding, so amended, is not a matter appropriate for referral to the Commission for conciliation. And the Court further orders that within 14 days of the date of these orders: (4) Pursuant to section 170EE(5) of the Industrial Relations Act 1988, the Respondent pay to the Applicant the sum of $344 by way of damages; (5) The Respondent pay to the Applicant holiday pay in the sum of $344; and (6) The Respondent pay to the Applicant compensation in the sum of $688. I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: Applicant appeared in person Respondent appeared in person Date of hearing: 4 August 1995 Date of judgment: 4 August 1995