Robert Hoey v Graphic Services Pty Ltd t/a Graphic Print Group [1995] IRCA 475

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment - probation - whether harsh, unjust and unreasonable - compensation - overtime INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE ROBERT HOEY -V-GRAPHIC SERVICES PTY LTD T/A GRAPHIC PRINT GROUP No. SI 95/1135 JUDICIAL REGISTRAR: L FARRELL PLACE: ADELAIDE DATE: 7 SEPTEMBER 1995

INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA REGISTRY ) No. SI 95/1135 B E T W E E N: ROBERT HOEY Applicant AND GRAPHIC SERVICES PTY LTD trading as GRAPHIC PRINT GROUP Respondent MINUTES OF ORDER BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 7 SEPTEMBER 1995 THE COURT ORDERS THAT: The Respondent pay to the Applicant the sum of $9989.72 within 21 days of today's date. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA REGISTRY ) No. SI 95/1135 B E T W E E N: ROBERT HOEY Applicant AND GRAPHIC SERVICES PTY LTD trading as GRAPHIC PRINT GROUP Respondent BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 7 SEPTEMBER 1995 REASONS FOR JUDGMENT This is an Application pursuant to S.170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks compensation. He does not seek reinstatement. The Respondent is a printing company. The Applicant commenced working for the Respondent in 1990. He had a break in his employment but subsequently worked for the Respondent as a casual offsider continuously from about July 1991. In June 1994 the Applicant's position was made permanent. He was warned about his punctuality in June 1994 and again in July 1994. His punctuality did not improve after those warnings. The Applicant had made many requests to become an Adult Apprentice. In December 1994 Mr Barker, Company Director, advised the Applicant that if he was punctual and showed commitment through the month of January he would be offered an Adult Apprenticeship as a Printer. On 1 February Mr Barker advised the Applicant that his Apprenticeship would begin that day subject to a "probation" period for the apprenticeship. The Applicant then completed a "Notification of Employment of a Probation Apprentice" form. At the time that he completed the form the proposed period of probation was not filled in. His evidence was that he understood Mr Barker to say he would have a six month probationary period. Mr Barker gave evidence that he told the Applicant the probationary period would be three months. The Award provides for a probationary period of between three and six months. Mr Barker also on that day advised the Applicant of the importance of being on time and of proving himself. He also advised the Applicant that his employment would be terminated if the Respondent was unsatisfied with the Applicant. Some time in late March or early April the Applicant was warned again and told that he would be dismissed if he continued to be late. Both Mr Barker and Mr Smith, the Production Supervisor gave evidence of the importance of printers commencing their work on time and compared it to the work of an offsider. It is not crucial that an offsider be at work at the commencement of a shift. Evidence was also given about an incident late in February when the Applicant had been slow to follow instructions from a supervisor. A document setting out the number of times the Applicant was late between July 1994 and 19 April 1995 was tendered into evidence. The document did not show how late the Applicant was, it showed 79 late attendances although the Applicant disputed 4 of these . The Respondent did not challenge that evidence of the Applicant. Between 1 January 1995 and 5 April 1995 the Applicant was late 9 times. There was no evidence of the Applicant being late at all in the last four weeks of his employment. The Applicant was given 1 week's notice that his employment was being terminated on 1 May 1995 by Mr Smith. He was told his probationary period had ended and he would not be given an apprenticeship. He was told he could be kept on the books as a casual employee. The Applicant was stunned by the termination of his employment. He sought further explanation later in the week from the Company. The Respondent argued that the Applicant was not entitled to enforce the provisions of the Act because he was excluded by virtue of Regulation 30B(1)c. In my view Regulation 30B(1)c does not apply to a situation where an employee has already been employed. In any event the evidence of both the Applicant and Mr Barker show that the probation period was not determined in advance, it having been determined on 1 February 1995. Was there a valid reason for the termination of the Applicant's employment? In my view the reason given to the Application for the termination of his employment was valid. Was the termination harsh, unjust or unfair? Given that there was no evidence before me that the Applicant was late for work after 5 April 1995 ,and it is likely that was about the time that the Applicant was warned by Mr Barker not to be late, it seems to me that the termination of his employment was harsh unjust and unreasonable. Did the employer breach S.170DC? The evidence in this matter was clear. The Applicant was given no opportunity to respond regarding the allegation of lateness or his attitude prior to Mr Smith advising him that his employment was being terminated. For these reasons I find that the termination of the Applicant's employment was in breach of the Act. Remedy The Applicant found alternative employment nine weeks after the termination of his employment. However the rate of his pay at his new employment is lower than that earned whilst working for the Respondent. His new wage does not include regular overtime of 2 hours per week worked for the Respondent. The applicant also worked a considerable amount of irregular overtime. In my view that irregular overtime cannot be taken into account unless there is clear evidence that he would have worked that overtime in the future. On my calculation the applicant's ongoing weekly loss is approximately $29. However the maximum amount of compensation that can be awarded to the applicant is 26 weeks wages. I therefore award compensation to the applicant in the sum of $9989.72. I certify that this and the preceding two pages are a true copy of the reasons for my judgment. DATE OF HEARING : 29 AUGUST 1995 FOR THE APPLICANT : MR S. BLEWETT FOR THE RESPONDENT : MR A CHIZMESYA