Andrea Condon v Simply Irresistible Pty Ltd ACN 065 117 213 [1995] IRCA 564

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2881 of 1995

B E T W E E N: Andrea CONDON Applicant A N D SIMPLY IRRESISTIBLE PTY LTD ACN 065 117 213 Respondent REASONS FOR DECISION (Delivered ex tempore) 10 October 1995 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988. There was no appearance for the respondent at the hearing of this matter, nor at a previous directions hearing. I am satisfied having regard to the notice of appearance filed by the respondent, and the correspondence sent by the Registry of the court, that the respondent was on notice as to this date for hearing. The applicant was employed by the respondent as its personnel manager on 18 March 1995. Her employment was terminated on or about 8 May 1995. The applicant's employment was terminated by telephone. She was first advised of the termination by way of another employee of the respondent. The evidence is that the respondent's business was informing callers that the applicant no longer worked for the respondent prior to the applicant being informed of this fact. The applicant was unable to establish with certainty the termination of her employment until 12 May 1995 when she spoke to an officer of the respondent, Mr. Morgetts. This call was initiated by the applicant. She was informed that the business had been leased and she was no longer required. There was no information given to or discussion had with the applicant of the impending alteration to the respondent's arrangements, and in fact it appears on the evidence that arrangements were deliberately made to give the applicant the weekend off so that the business premises of the respondent could be shifted without her knowledge.

The respondent has treated the applicant shabbily and the termination of her employment was in my view without valid reason and was harsh, unjust and unreasonable. Further, the evidence establishes that there was no consultation with the applicant as to alternatives to the termination of her employment even had it been the case that it was brought about by operational requirements. Of this latter matter the court is not satisfied in any event. I find that that the respondent in terminating the employment of the applicant contravened S170DE(1) and (2) of the Industrial Relations Act 1988. I am satisfied as a result of the circumstances of this matter, including the non-appearance of the respondent and the uncertainty that exists as to the business status, together with the fact that the applicant has regained employment with the business where she was employed immediately prior to the respondent, that an order for reinstatement would be impracticable. However, in the circumstances I am satisfied that an order for compensation ought be made. Having regard to the applicant's evidence of the length of time she was unemployed prior to obtaining permanent employment I am satisfied that she ought be compensated in this amount. The applicant took what could only be described as reasonable steps to mitigate her loss in terms of taking up temporary employment shortly after the termination. This temporary employment resulted in her being unemployed and suffering loss for six weeks after the termination to the date of engagement in the new permanent employment. The applicant's evidence is that she also continues to suffer a reduction in earnings as a result of the termination. I am satisfied that it is unlikely, even on the applicant's evidence, that the employment would have continued for a significant period. Taking into account the period of unemployment, the continued loss of earnings of up to $40.00 per week, and the one weeks pay for notice ultimately paid by the respondent, I consider that an amount equivalent to an additional six weeks wages is appropriate compensation in the circumstances. This compensation does not take into account any sum which may be payable to the applicant by way of superannuation contributions. The orders of the court will be: 1. That the termination of the employment contravened S170DE (1) and (2) of the Industrial Relations Act 1988. 2. That the respondent pay to the applicant compensation in the sum of 2,580.00 within 21 days of the date of this order. I certify that this and the preceding three (3) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson delivered ex tempore. Associate: Dated: 10 October 1995 Solicitors for the applicant: Ryan Carlisle Thomas Counsel appearing for the applicant: Mr R Niall No appearance for respondent