Vincent Prestinenzi v Amma Steelworks Pty Ltd [1995] IRCA 577

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3096 of 1995

B E T W E E N: Vincent PRESTINENZI Applicant

A N D AMMA STEELWORKS PTY LTD Respondent REASONS FOR DECISION 27 October 1995 PARKINSON JR This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent as a Boilermaker/Welder, between 23 January 1995 and 11 May 1995. He had previously been employed by the respondent in the period 28 January 1994 and 5 May 1994, and had at that time left of his own accord. The applicant's evidence was that he was dismissed on 11 May 1995 in the course of a disagreement between himself and Mr Tanti, the managing director of the respondent, in relation to staying back after finishing time. The respondent's evidence was that the applicant resigned his employment of his own accord and left work that day without reason being given. In this regard the respondent relies upon the previous conduct of the applicant in resigning the employment. Whilst it is always difficult to select from two competing versions of events such as these, I prefer the evidence of the applicant to that of the respondent's witnesses. The respondent called evidence from other of its employees in the workplace in relation to various conversations which were held on the date of the termination of the employment. I am not satisfied that the witnesses were able to accurately or fully hear the conversations that they ascribe to the parties to them, Mr Tanti and the applicant. Mrs Tanti gave evidence of hearing the applicant indicate he was finishing work of his own accord. However, in view of the evidence of the location of the parties at the time of the conversation and Mrs Tanti's location, together with her own concessions as to her inability to accurately recall some matters of importance, and the evidence of Mr Todorio as to the noise levels in that factory which, in my view, would make hearing such a conversation in any detail unlikely, I am unable to accept the accuracy of this evidence. Further, Mr Todorio's evidence in chief was that the applicant came into Factory number 2 and told him he was leaving. His evidence was that the applicant was "a bit upset, I suppose he was a bit upset when he told me that". This evidence neither establishes nor lends support to the proposition that the applicant resigned his employment. It is in my view more consistent with the employment having been terminated. Finally, during the course of the proceedings it became apparent that shortly before the applicant's employment terminated an additional employee had been engaged and was performing at least some of the work previously performed by the applicant. The evidence is that the applicant was not replaced by the engagement of another employee after the termination of the employment. The evidence was not entirely clear in relation to the number of employees and their commencement dates, and for this purpose, and also for clarification of wage entitlements and overtime worked, I asked the respondent, by consent of the applicant, to provide the court with the entire wages book kept by the respondent for the entire period. Whilst an extract of a record, apparently reproduced from other original documents, identifying the applicant's wage receipts was provided, the material I requested in its entirety was not. Therefore, I have not been assisted any further in relation to this aspect of the proceedings. I conclude therefore from the evidence before me in the proceedings that the respondent had engaged an additional employee two days prior to the termination of the employment and, in view of the applicant not being subsequently replaced, it is reasonable to infer having regard to all the circumstances that the employment was terminated by the respondent. I am satisfied that the respondent terminated the employment of the applicant on 11 May 1995. There was no suggestion in the proceedings that the applicant was not a competent or capable employee. In the circumstances I am not satisfied that the respondent had a valid reason for the termination of the applicant's employment. Therefore there has been a contravention of S170DE(1) of the Industrial Relations Act 1988. It is appropriate that I now turn to consider the question of remedy and the contractual claims made for annual leave and superannuation entitlements. . Remedy - S170EE and Contractual Claims This is a case where the applicant does not seek the remedy of reinstatement, and in fact obtained alternative employment shortly after the termination. The applicant was at the time of the trial in full time employment although on a casual basis, and he has been in that employment from a week after his employment with the respondent was terminated. In so far as it is necessary to find that an order for reinstatement would be impracticable I do so, having regard to the fact of the alternative employment and the express desire of the applicant not to return to the respondent's employ. In so far as compensation pursuant to S170EE(3) is concerned, whilst the applicant's evidence was that he is employed for the duration of a job, I am satisfied that the nature of the employment is that there is a likelihood of ongoing employment. In this circumstance of little if any ongoing loss, and where reinstatement is specifically not sought, it is appropriate in assessing the compensation to be ordered, if any, to take due account of the commencement date of any new employment and the actual losses incurred by the applicant in the intervening period. In this circumstance, the loss to the applicant is the earnings in the period between the date of termination of the employment and the date of commencement of the new employment. That is a period of one week. The applicant is entitled to an amount of compensation equivalent to one weeks pay, which is the period between the date of the termination of the employment and the date of obtaining alternative employment. That is the sum of $562.00. The applicant was not given any notice of termination of employment and nor was he paid any amount in lieu of notice. I propose to also order that the respondent pay to the applicant the sum of $562.00 in damages for failure to pay or accord the prescribed notice in S170DB(2) of the Act. Whilst I recognise that to some extent there is an overlap in relation to the periods in respect of which both amounts are payable, this only arises because by his own conduct of obtaining alternative employment the applicant has substantially mitigated the potential compensation payable by the respondent. The applicant is also seeking damages for unpaid superannuation and annual leave entitlements accrued. The applicant claimed an accrued entitlement to annual leave at termination and this was not contested by the respondent. Exhibit R1 identified the various payments made to the applicant as wages during the employment. I am satisfied that the applicant earned on average $562.00 per week. This figure includes an average of overtime. I am satisfied that there was an entitlement to payment for superannuation of 4 per cent of wages to a complying fund. No such payments were made on behalf of the applicant according to the wage records of the respondent. I propose to order payment of damages to the applicant for the entitlement unpaid. On the accrued contractual claim for annual leave entitlements and superannuation, the order will be that the respondent pay to the applicant in damages the sum of $ 562.00, being a pro-rata entitlement equivalent to one weeks holiday pay, and a further amount of $337.20 being an amount equivalent to 4 per cent of the average wage of $562.00 per week over the 15 week period of his employment. The orders of the court will be: 1. That pursuant to S170EE(3) the respondent pay to the applicant the sum of $562.00 in compensation. 2. That pursuant to S170EE(5) the respondent pay to the applicant the sum of $ 562.00 in damages. 3. That the respondent pay to the applicant the sum of $ 899.20 in damages for breach of contract arising out of the failure to pay annual leave or superannuation entitlements. 4. Time for payment is 21 days from the date of this order. I certify that this and the preceding five (5) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate: Dated: 27 October 1995 APPEARANCES Applicant in person Representative appearing for the respondent: Mr A Tanti Date of hearing: 4 October 1995 Date of judgment: 27 October 1995