Eric Bengtsson & AMU-FIME Amalgamated Union and Spikles Pty Ltd [1995] IRCA 667

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3422 of 1995 B E T W E E N : ERIC BENGTSSON & AMU-FIME AMALGAMATED UNION Applicants AND SPIKLES PTY LTD Respondent Before:Judicial Registrar Tomlinson Place: Melbourne Date: 11 December 1995 REVISED REASONS FOR DECISION DELIVERED EX TEMPORE This is an application made under the Industrial Relations Act wherein the applicant, Eric Bengtsson, initially sought reinstatement, but during the hearing this morning altered that to be only compensation. The applicant was represented by Mr Geoff Sutton from his union, and the respondent represented himself. Most of the facts presented to the Court were agreed upon by the parties, and those facts in issue I will identify. The applicant was a qualified cabinet maker, and as such answered an advertisement in the paper placed by the respondent. It seems the respondent owned and operated a cabinet making and joinery business comprising himself and one other employee, Mr Steven Danilov. The applicant and the respondent met at interview, wherein the applicant was offered and accepted the position of cabinet maker. By all accounts the applicant commenced work on 15 May 1995, and the hours of work were to be from 8 am until 4 pm. The respondent gave evidence that in the first week of work the applicant, on two occasions, was five or 10 minutes late. No warning or guidance was given to the applicant about this fact and so it can be concluded that nothing hangs on it. According to the applicant a certain discussion took place on 25 May 1995 between himself and the respondent and the other employee, Steven Danilov, arising out of the fact that the respondent requested one of his employees to work on Sunday 28 May 1995, and the applicant said he would work, but in fact the respondent then chose the employee Steven Danilov to work. In his evidence-in-chief the applicant stated he duly reported to work on Monday 5 June 1995 and found the factory locked. He waited from 8 until 9.30 am or so and then went home. There was no evidence from either party that contact was made on 5 June 1995. The applicant stated he then attended for work on Tuesday 6 June at 8 o'clock and similarly found the factory locked again. Again he stated he waited until 9.30 and that he then went home. Tendered to the Court as exhibit 1 was the telephone records of the applicant's telephone showing that the respondent was telephoned on 6 June 1995 at approximately 3.20 in the afternoon. The applicant stated that this first call was made by his wife, and that he then rang back the respondent and a conversation took place wherein the applicant was terminated and that the respondent used the words "I do not run a kindergarten". The applicant stated that he was neither warned nor counselled about his work nor his performance in any way, and that during that final telephone conversation he told the respondent, Mr Berkuvitch, that the respondent still owed him money. In cross-examination the respondent admitted in support of his position the wages and records book that showed the applicant worked five days from 15 until 19 May 1995. That book records that on the second week of work - on 24 May and 25 May 1995 the applicant did not report for work and was apparently sick. Reference was made to a medical certificate obtained by the applicant but none was presented during these proceedings. The evidence was that the applicant's wife telephoned the respondent and advised her husband would not be in. The telephone records supports the evidence that the respondent was telephoned on 24 May 1995. The respondent, in acting for himself and in cross-examination of the applicant, placed before the Court that the following Friday, 26 May 1995, when the applicant presented for work, he was told by the respondent that he would not be paid for the two days he was away sick and that he could make up one of those days by working the following Sunday, that Sunday being 28 May 1995. The evidence was the applicant agreed to this and so he was then paid on that Friday four days pay, one of those pay days being for the day, Sunday, in advance. On behalf of the respondent the Court heard from Mr Berkovitch, and from a Mr Danilov. The respondent told the Court he had been in business for some 20 years and accordingly I place little weight on the evidence of the respondent as to his understanding of sick leave entitlements of employees. The award under which the applicant worked was not tendered, and so in light of the disparity of evidence I am unable to conclude that the applicant agreed to forego his entitlements to sick pay, but that the respondent had a legal responsibility to pay to the applicant wages at overtime rates for the Sunday worked, being Sunday 28 May 1995. The Court heard evidence of conversations between the respondent and the applicant's union represented, Mr Sutton, that after the applicant ceased work the respondent was without factory premises and accordingly the respondent indicated he was unable to re-employ the applicant as he had nowhere for him to work. The reason why the respondent had nowhere to work was unclear, as on one hand the respondent stated his landlord from whom he sublet very suddenly, without warning, sold the premises, and on the other hand the witness, Mr Danilov, gave evidence that certain factory tools, machinery and equipment of the respondent were removed at short notice by third parties. However, it can be concluded that after the cessation of employment the respondent had no further need for the services of the applicant. Mr Danilov stated that on the 5th and 6th May he was at the premises of the respondent at the times when the applicant stated that he was there, and that he was sure the applicant was not there. I am unable to place much weight on the evidence of Mr Danilov, and it is a finding of this Court that on 6 May 1995 the applicant made contact with the respondent to ascertain the position concerning future employment. It is clear the applicant did not resign during that conversation wherein contact was made on 6 May. Both parties agree on that fact. The evidence of the applicant is that at the point of phone conversation he wished the contract of employment to continue. There was no evidence presented to the Court that he did not wish it to continue. There was some evidence that on Friday 2 June 1995 for some reason the applicant packed up all his tools when he finished for the day. I am unable in light of further evidence in that regard to place any weight on that evidence at all. There was no question the tools were the property of the applicant and he could do with them as he wished. The fact that he took them home does not imply that he would fail to come to work the following Monday. Accordingly, it is a finding of this Court that on the evidence presented the respondent terminated the employment of the applicant. On the evidence it is clear that the respondent has breached the provisions of the Industrial Relations Act. The respondent has not demonstrated that he had a valid reason for the termination of the applicant, nor that he warned nor counselled the applicant in any way as to his work performance, his allegedly coming late for work, his alleged failure to present a medical certificate, or the possibility of work drying up in the future. All these matters referred to were matters simply referred to during the course of proceedings, and no concrete evidence was presented as to the absolute existence of any of them. Having heard of the kind of enterprise run by the respondent, it is the finding of this Court that reinstatement is impracticable. I place little weight on the offer of reinstatement made by the respondent during the course of these proceedings, first on the basis of the evidence given by Mr Danilov concerning the tools of trade, and second that the respondent declined to have the applicant back when requested to do so by the applicant's trade union representative. The Court heard that the applicant has found other work, and that that work commenced approximately in the middle of August 1995. Marked for identification is a letter dated 26 July 1995 from the union to the respondent. The Court heard that the respondent in fact received that letter. No formal response apparently has been received. The respondent referred on more than one occasion during the course of these proceedings to the fact that the applicant was paid above award wages. No evidence was received as to what that award was other than a statement from the bar table made on behalf of the applicant, that he received $480 gross per week. The letter of 26 July states the total amount of underpayment during the period of employment was $376. That takes into consideration, it is my understanding, the sick leave entitlements, and I have to say that in light of the conversations that would have taken place between the respondent and Mr Sutton, that agreement was reached in that regard concerning the sick leave entitlements which possibly overrode the agreements reached between the applicant and the respondent. In addition to the letter of 26 July, it was stated that the applicant was not paid for Monday 5 and Tuesday 6 June, nor was he paid notice payments. It seems that together with an allowance for a referred to rostered day off and accrued holiday pay entitlements, the applicant is owed a further $898.86, making a total of $1275.84 due to the applicant. Accordingly, I order the respondent to pay to the applicant that amount within 28 days of the date of this judgment. The applicant was employed and worked for the respondent for a total of three weeks and during that time the applicant had three days off on sick leave. It is the opinion of this Court that the applicant has not demonstrated a desire nor intention to remain in the employ of the respondent for any length of time, and accordingly it is appropriate that in addition to the amount referred to above, the respondent pay to the applicant a further two weeks' salary within 28 days of the date of this judgment. According to my calculations the respondent is to pay to the applicant the sum of $2251.84 within 28 days of the date of this judgment. MINUTES OF ORDERS THE COURT ORDERS: 1. That the respondent pay the applicant the sum of $1275.84 within 28 days of the date of this judgment. 2. Further order that the respondent pay the applicant an additional 2 weeks salary, making a total sum of $2251.84 within 28 days of this judgment. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Tomlinson. Associate: Dated: Representative for the Applicant: Mr Geoffrey Sutton AWU-FIME Amalgamated Union 685 Spencer Street, West Melbourne, Vic. 3003 Respondent appeared in person Date of hearing: 11 December 1995 Date of judgment: 11 December 1995