Cansever Yegen v Defab Weavers Pty Ltd [1995] IRCA 472

CATCHWORDS INDUSTRIAL LAW - review of judicial registrar's exercise of power - allegation of UNLAWFUL TERMINATION - ABANDONMENT of EMPLOYMENT or DISMISSAL Industrial Relations Act 1988 ss170EA, 377 No. VI 0627R of 1994 CANSEVER YEGEN v DEFAB WEAVERS PTY LTD Marshall J Melbourne 18 September 1995

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 0627R of 1994 BETWEEN: CANSEVER YEGEN Applicant AND: DEFAB WEAVERS PTY LTD Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 18 September 1995 ORDER THE COURT ORDERS THAT: 1. The Order of the Court constituted by Judicial Registrar Tomlinson made on 13 October 1994 is set aside. 2. It is declared that the respondent did not terminate the employment of the applicant. 3. The application under s170EA Industrial Relations Act 1988 is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 0627R of 1994 BETWEEN: CANSEVER YEGEN Applicant AND: DEFAB WEAVERS PTY LTD Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 18 September 1995 REASONS FOR JUDGMENT BACKGROUND On 2 June 1994 the applicant made an application under s170EA Industrial Relations Act 1988 ("the Act") for orders:- (a) declaring the termination of her employment by the respondent to have contravened Division 3 of Part VIA of the Act; (b) requiring the respondent to reinstate her; (c) requiring the respondent to pay compensation to her.

The affidavit filed in support of the application alleged that the applicant's employment had been terminated by the respondent on 24 May 1994 and that no reason was given for the dismissal. On 15 June 1994 the respondent filed its notice of appearance through the Australian Chamber of Manufactures ("ACM"). The affidavit was sworn by Mr Robert Auricchio of the ACM. Mr Auricchio stated that he was instructed by the respondent that it did not terminate the applicant's employment but that the applicant had resigned from the respondent. On 24 June 1994, Registrar Agnew ordered that the matter be referred to the Australian Industrial Relations Commission ("the Commission") for conciliation. On 26 July 1994, Commissioner Oldmeadow certified that the Commission had been unable to settle the matter by conciliation. The application was heard by Judicial Registrar Tomlinson on 4 and 5 October 1994. On 13 October 1994, the Judicial Registrar delivered her reasons for judgment. It was found that the applicant had not resigned but in fact had had her employment terminated by the respondent. The Judicial Registrar ordered that $6,000.00 be paid to the applicant by the respondent by way of compensation. The figure was arrived at having regard to the applicant having "sustained loss at the rate of $380.00 per week from 24 May 1994 until the 4 October 1994" (see p7 of the decision). On 28 October 1994, the respondent moved the Court for orders including an order that the exercise of power by the Judicial Registrar be reviewed pursuant to s377 of the Act. The notice of motion was subsequently supported by an affidavit of an articled clerk employed by the respondent's solicitors. The affidavit exhibited the transcript in the proceedings before the Judicial Registrar. On 10 November 1994, Keely J ordered that the matter be placed in the list of cases to be fixed for hearing. No order was sought by the respondent for a stay upon the order of Judicial Registrar Tomlinson concerning compensation. Both parties wrongly assumed that the notice of motion to review the Judicial Registrar's exercise of power acted as a stay upon such order. In any event, it appears that no monetary payment in respect of compensation has been paid to the applicant by the respondent. Due to the extremely heavy workload of the Court in Melbourne the review was unable to be heard until 11 September 1995. On that day, Mr A Lawrence, of counsel, appeared for the applicant and Mr P Burchardt, of counsel, appeared for the respondent. It was common ground between counsel that:- (a) the review was to be conducted as a complete re-hearing where the witnesses would give oral testimony and the transcript of the proceedings before the Judicial Registrar would not be tendered as evidence in the review; (b) my decision in the review would depend entirely on whether I believed the evidence of the applicant or the evidence of the respondent's witnesses as to whether the applicant had resigned or was dismissed; (c) should I believe the applicant, it was appropriate to order that she receive $9,800.00 compensation, constituting six month's remuneration; and (d) should I prefer the evidence called on behalf of the respondent, I should declare that no relevant breach of the Act has occurred. THE EVIDENCE (a) MATTERS NOT IN DISPUTE The respondent is a family company which weaves fabrics for apparel and industrial use. It has about 16 employees. It has operated since 1976. Mr Nunzio De Petro is the Managing Director of the respondent. His spouse, Mrs Susan De Petro, is employed by the respondent as a supervisor. Their son, Mr Guiseppe De Petro is employed by the respondent as the sales and office manager. The applicant was employed by the respondent from July 1988 until 24 May 1994. She was employed as a mender. This involved operating a machine which took imperfections out of fabric. The applicant was trained on the job. She was a competent and valuable employee. There was no criticism of her work performance. If the relevant events of 24 May 1994 had not occurred, the applicant would have continued in employment with the respondent beyond that date.