Shirley Maria Brittain v Robert Edward Williams and Gwenda Lena Williams Trading as Leura Hotel [1995] IRCA 456

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2930 of 1995 B E T W E E N: Shirley Maria BRITTAIN & ALHMWU Applicants A N D Robert Edward WILLIAMS and Gwenda Lena WIILIAMS Trading As LEURA HOTEL Respondent REASONS FOR DECISION 7 September 1995 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988. There was no appearance for the respondent in this matter. A preliminary issue arises in the proceedings. The respondent is identified in the proceedings as being the Leura Hotel. This is the business or trading name of the business. The evidence in the proceedings, including the affidavit of service and the termination pay cheque of the applicant, identify that the employers of the applicant were Robert Edward Williams and Gwenda Lena Williams Trading As Leura Hotel. Leave was granted to the applicants to amend the title of the proceeding and the named respondent to Robert Edward Williams and Gwenda Lena Williams Trading As Leura Hotel. I am satisfied that they were on notice as to the proceedings and as to service, and, having regard to the affidavit of Mr Israel Forbes dated 28 August 1995, I am satisfied that the respondent employers have been served personally at the premises of the business. The applicant is 32 years of age and resides at Camperdown in Victoria, where she was employed as a food and beverage attendant at the Leura Hotel. She was originally employed at the premises on a casual basis in 1982 when she was 19 years old. She was engaged by the operators of the hotel at that time and, save for short breaks in the casual engagement of some months, was regularly so employed by subsequent operators of the hotel until the respondents commenced to run the business. After the respondent's took over the business on 19 February 1993, the applicant was hired on a permanent full time basis. Her full time employment was terminated on 12 May 1995. The applicant worked mainly weekday afternoon shift between 12.00pm-3.00pm and 4.00pm-8.30pm and was usually solely responsible for the operation of the bar and meals service. During busy periods she would work additional hours on weekends or public holidays. The circumstances of the applicant's termination are as follows: The applicant was married on 11 March 1995 and arranged with Mrs Williams, the co-owner of the business, to have her celebration lunch at the dining room of the hotel. The menu was agreed and was to be a fixed price arrangement of $12.00 per head, with guests being responsible for the cost of their meals. There were approximately 20 guests in attendance. The applicant was not on duty that day at any time, and the evidence was that she was not requested to undertake any supervisory role in respect of payment for meals. The evidence was that there were other employees of the respondent working in the dining room that day for the purpose of meals and liquor service and receipt of monies. The applicant's evidence was that the day after the wedding she was questioned by Mrs Williams as to some of the guests not paying for their meals, however she was not told how many had not paid, nor how much money was owing. After that time relations between the applicant and Mrs Williams became cool, the applicant's evidence being that she was communicated with via the auspices of Mr Williams. Some weeks later the applicant was informed by Mrs Williams that she did not think that they could continue to work together, however the following day it appeared to the applicant as if things had returned to normal between them, with Mrs Williams greeting her and speaking to her as she had previously. This was the beginning of May and the regional racing season was about to commence, with a corresponding and increase in the business of the respondent. Shortly after the conclusion of the racing period, on 12 May 1995 the applicant was informed by Mrs Williams that they could no longer afford to employ any full time employees. The applicant's employment was terminated on and from that date with a cheque being given to her including an amount for wages owing, one weeks notice and for her outstanding leave entitlements. There was no discussion as to the reasons for the termination of the employment. The applicant's request that she be continued on a part-time basis was not taken up by the respondent. The evidence was that there were no alternatives considered to the termination of her employment, notwithstanding that the applicant had expressed a willingness to work in a different capacity for the respondent, and that she was the longest serving employee. I am not satisfied that the respondent had a valid reason for the termination of the applicant's employment. I find that there was a termination of employment which contravened S170DE(1) of the Act. It is clear that the applicant was given no opportunity to be heard, and no alternatives to the termination of her employment were considered. I am satisfied that the termination of the employment was harsh, unjust and unreasonable. Further, the applicant had been employed for a period longer than one year and was entitled pursuant to S170DB(2) to at least two weeks notice of termination of the employment. The evidence was that the respondents are no longer operating the Leura Hotel. There are apparently new operators unconnected with the respondents. I am satisfied on this basis that an order for reinstatement of the applicant would be impracticable. However, in the circumstances, having regard to the long history of employment of the applicant at the hotel, I am satisfied that substantial compensation ought lie. The evidence of the applicant was that she was not employed by the new operators of the Leura Hotel because, as a consequence of initiating these proceedings, she had been described by Mrs Williams as a troublemaker. Thus the period of the applicant's continued unemployment has been extended. The evidence is that the applicant has found it difficult to obtain alternative employment in or around the country location. This is not surprising in the circumstances of her usual occupation being apparently no longer available to her. I am satisfied that it is appropriate to order a sum of compensation representing the entirety of the period between the date of the termination of the employment and the date of commencement of the hearing of this matter. There is no aspect of the conduct of the applicant which contributed in any manner to my decision that reinstatement would be impracticable. Further, but for the termination of the employment, having regard to her lengthy history in the workplace, I am satisfied that the employment would have continued of a lengthy period. The amount of compensation will be $4,402.80 representing a further 12 weeks of employment at a weekly rate of $366.90 per week. The applicant is also entitled to an order for damages in the sum of $366.90 representing the amount of notice she was entitled to pursuant to S170DB(2) of the Act. The orders of the court shall be: 1. That the title of the proceeding be amended to and the respondent named as Robert Edward Williams and Gwenda Lena Williams Trading As Leura Hotel. 2. That the respondents pay to the applicant the sum of $ 4,402.80 in compensation. 3. That the respondents pay to the applicant the sum of $ 366.90 in damages. 4. That time for payment is twenty one days from the date of this order. I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson. Associate: Dated: 7 September 1995 Representatives for the applicant: Liquor Hospitality & Miscellaneous Workers Union Representative appearing for applicant: Mr B Tee