Pentland v Flarcroft Investment Pty Ltd [1996] IRCA 237

DECISION NO: 237/96 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - no appearance by respondent - ONUS OF PROOF pursuant to s 170EDA(1) not discharged - termination at the initiative of the respondent - lack of PROCEDURAL FAIRNESS - failure to pay one week's notice or compensation in lieu Industrial Relations Act 1988 ss.170DB, 170DC, 170DE(1) HEIDI EMMA JAYNE PENTLAND v FLARCROFT INVESTMENT PTY LTD No. VI 5970 of 1995 Before: Judicial Registrar Millane Place: Melbourne Date: 29 May 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5970 of 1995 B E T W E E N : HEIDI EMMA JAYNE PENTLAND Applicant AND FLARCROFT INVESTMENT PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Millane 29 May 1996 THE COURT ORDERS THAT: 1. The letter dated 24 May 1996 from the solicitors on the record acting for the respondent, Littleton Hackford, stand as Notice of Ceasing to Act pursuant to Order 45 of the Industrial Relations Court Rules. AND THE COURT DECLARES THAT: 2. The respondent contravened sections 170DE(1), 170DC and 170DB of the Industrial Relations Act 1988. AND THE COURT ORDERS THAT: 3. The respondent pay the applicant the sum of $128.05 by way of damages pursuant to section 170EE(5) of the Industrial Relations Act 1988. 4. The respondent pay the applicant the sum of $1,280.05 by way of compensation pursuant to section 170EE(2) of the Industrial Relations Act 1988. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 5970 of 1995 B E T W E E N : HEIDI EMMA JAYNE PENTLAND Applicant AND FLARCROFT INVESTMENT PTY LTD Respondent Before: Judicial Registrar Millane Place: Melbourne Date: 29 May 1996 REASONS FOR JUDGMENT (Delivered Ex Tempore - Revised from Transcript) In this proceeding, the applicant, who is currently a student studying what she described as an Abbeycare Beauty Course, seeks compensation for the alleged unlawful termination of her employment by the respondent on 29 November 1995. The applicant alleges that she was employed as a bar person from October 1995 until 29 November 1995 when the manager, Raelene, approached her and informed her that Alf (meaning Alfredo Garofello her manager) had instructed her to "put the applicant off". The reason given for terminating the applicant's part-time employment was that it was alleged that she had been giving away free drinks on the previous Saturday evening. The applicant says that she did not respond, but walked away from the manager. She denies the allegations made against her. In evidence, the applicant produced payslips evidencing an average gross weekly pay of $128.05 for the five weeks of her employment. Her expectation was that that employment would continue indefinitely, having replaced a friend who had worked in her position for some two years before leaving. Following the termination of her employment, the applicant sought and found some three weeks of employment in Melbourne at the rate of $140 gross per week. She was unable to sustain that employment because it required her to travel to and from Morwell where she was then residing. In an effort to improve her employment prospects, the applicant has since 7 February 1996 undertaken the course of study mentioned with the view to working in the beauty care industry within 18 months. She is now in receipt of Austudy benefits. At the date of termination she was not given any notice or compensation in lieu thereof and now seeks one week's compensation. The order the Court makes in that respect is that she be paid damages in the sum of $128.05 for the period of unpaid notice. The respondent was called but did not appear in Court to defend the proceedings at hearing. Its former solicitors were represented and an application was made seeking leave for the solicitors to cease to act; the solicitors having given notice to both the respondent and the Court on 24 May 1996. On hearing from Mr John, agent for the Morwell solicitors, and being satisfied that the respondent had been notified of the hearing date and the solicitors' intention to cease to act, the Court made orders that the letter dated 24 May 1996 stand as the solicitors' Notice of Ceasing to Act. Because the respondent did not appear no evidence was called to establish a valid reason for termination, the applicant having proved through her evidence that there was a termination at the initiative of the respondent. Accordingly, I find that the respondent has not discharged its burden of proof and has thereby breached section 170DE(1) of the Act. Insofar as the applicant was not given an opportunity to respond to the allegation made against her before termination, I find that there has also been a breach of section 170DC of the Act. On the question of compensation, a submission was put to the Court that the applicant should be paid compensation for 26 weeks; being the maximum entitlement under the Act. The question of reinstatement was also addressed on the basis that the applicant urged the Court that this was impracticable; not only because the applicant now resides and studies in Melbourne, but also because it appears that the respondent company is the subject of a winding-up application before the Victorian Supreme Court on 29 May 1996. Bearing the abovementioned matters in mind, I find that reinstatement is impracticable. On the question of compensation, the Court orders that the sum of $1280.05 be paid to the applicant. This sum takes into consideration the applicant's present status as a student from 7 February 1996. She gave evidence that as from that date she ceased to seek full-time employment. It also takes into account the three weeks' employment obtained in the intervening period between the date of the termination and the hearing of her application by this Court. MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The letter dated 24 May 1996 from the solicitors on the record acting for the respondent, Littleton Hackford, stand as Notice of Ceasing to Act pursuant to Order 45 of the Industrial Relations Court Rules. AND THE COURT DECLARES THAT: 2. The respondent contravened sections 170DE(1), 170DC and 170DB of the Industrial Relations Act 1988. AND THE COURT ORDERS THAT: 3. The respondent pay the applicant the sum of $128.05 by way of damages pursuant to section 170EE(5) of the Industrial Relations Act 1988. 4. The respondent pay the applicant the sum of $1,280.05 by way of compensation pursuant to section 170EE(2) of the Industrial Relations Act 1988. . 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 3 (three) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 6 June 1996 Solicitors for the Applicant: Simon Parsons & Co Counsel for the Applicant: Mr G. Burns No appearance for Respondent. Date of hearing: 29 May 1996 Date of judgment: 29 May 1996