Jones v Swan Hill Quality Meats Pty Ltd [1996] IRCA 255

DECISION NO: 255/96 CATCHWORDS INDUSTRIAL LAW TERMINATION OF EMPLOYMENT - decision to terminate applicant was taken whilst he was on accrued annual leave - VALID REASON - termination said to be based on grounds of REDUNDANCY - ONUS OF PROOF - termination was HARSH, UNJUST or UNREASONABLE - COMPENSATION Industrial Relations Act 1988 ss 170DB, 170DE, 170EA, 170EE Shane Ball v Tip Top Bakeries, WI R575 of 1994, Industrial Relations Court of Australia, 12 January 1996, Marshall J, unreported Kenefick and Others v Australian Submarine Corporation Pty Ltd, Industrial Relations Court of Australia, SI 290, 292, 293, 294, and 295 of 1994, 26 March 1996, Full Court, unreported Dean Kenneth Hockey v Multiskip Pty Ltd, Industrial Relations Court of Australia, WI 439R of 1994, 29 September 1995, Marshall J, unreported Pam Coker Godson v National Dairies Limited, Industrial Relations Court of Australia, VI 0262R of 1994, 4 August 1995, Marshall J, unreported No. VI 3657R of 1995 ROY STANLEY JONES v SWAN HILL QUALITY MEATS PTY LTD JUDGE: Marshall J PLACE: Melbourne DATE: 14 June 1996

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VI 3657R of 1995 BETWEEN: ROY STANLEY JONES Applicant AND: SWAN HILL QUALITY MEATS PTY LTD Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 14 June 1996 ORDER THE COURT ORDERS THAT: 1. It is declared that in terminating the employment of the applicant the respondent contravened ss 170DE and 170DB Industrial Relations Act 1988. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No VI 3657R of 1995 BETWEEN: ROY STANLEY JONES Applicant AND: SWAN HILL QUALITY MEATS PTY LTD Respondent JUDGE: Marshall J PLACE: Melbourne DATE: 14 June 1996 REASONS FOR JUDGMENT BACKGROUND On 5 July 1995 the applicant filed in the Victoria District registry of the Court ("the registry") an application pursuant to s170EA Industrial Relations Act 1988 ("the Act"). The applicant sought the remedy of compensation for what he alleged to be the unlawful termination of his employment by the respondent on 26 June 1995. A notice of employer's appearance was filed in the registry on 13 July 1995 by the solicitors then acting for the respondent, Messrs Mitchell, McKenzie and Co of Moama, New South Wales. On 14 August 1995, Deputy President Drake of the Australian Industrial Relations Commission ("the Commission") certified that the Commission had been unable to settle the matter by conciliation. On 24 November 1995 the respective solicitors for the parties were advised by the registry that the matter had been set down for trial on 19 February 1996 at Mildura. On 15 February 1996 Mitchell, McKenzie and Co filed a notice in the registry, dated 8 February 1996, advising that the firm had ceased to act for the respondent in the proceeding on 8 February 1996. On 16 February 1996 an affidavit of service of the notice on the respondent was filed by Mitchell, McKenzie and Co. On 19 February 1996, the matter was heard by Judicial Registrar Millane. In the second paragraph of her ex-tempore reasons for judgment given that day, the Judicial Registrar said:- "The respondent was represented by solicitors until 8 February 1995 when they ceased to act. On the return date the respondent was not represented in compliance with the requirements of section 469 of the Act. I am satisfied that the respondent was on notice of the hearing date, notified to its former solicitors in November 1995. Accordingly, the matter proceeded as an undefended matter." The Judicial Registrar ordered the respondent to pay to the applicant $13,000 by way of compensation pursuant to s170EE(3) of the Act and $2,000 by way of damages pursuant to s170EE(5) of the Act. By way of notice of motion dated 7 March 1996 the respondent, now represented by Tanya Cirkovic and Associates, sought a review of the exercise of power by Judicial Registrar Millane. The respondent also sought an order staying the operation of the orders made by the Judicial Registrar. Due to the fact that the applicant's solicitor is based in Swan Hill, the Court decided to conduct the directions hearing in the review by telephone on 1 April 1996. When it became apparent that evidence would be called regarding the respondent's stay application at the directions hearing, the parties sought, and the Court granted, an adjournment of the directions hearing including the taking of evidence in relation to the stay application. The matter was adjourned to Melbourne on 4 April 1996 at 9.30 am. It was also considered by the parties and the Court to be conducive of efficient use of time and resources to commence the hearing of the review in the time remaining on 4 April 1996. In support of its stay application the respondent relied upon an affidavit of Robert Henry Woodward sworn 4 April 1996. The affidavit contained the following material:- "1. I am a director, and the owner of the Respondent and am authorised to make this Affidavit on its behalf and do so from my own knowledge and belief save where otherwise indicated. 2. On about 28 June 1995, the Applicant was dismissed from his employment with the Respondent. 3. On about 5 July 1995, the Applicant filed an Application with this Honourable Court claiming that he had been unfairly dismissed. 4. The Application was posted to a butcher's shop operated by the Respondent at Swan Hill in about July 1995. As was the usual practice of the Respondent in this kind of matter, Mr Scott Mackenzie was left in charge of dealing with the Application. 5. I understand that Mr Scott Mackenzie then instructed solicitors, Mitchell, McKenzie & Co., to defend this Application. 6. In or about October 1995, a dispute arose between myself and my former business partner Mr Robert Mackenzie, which was the subject of litigation. The dispute has subsequently been resolved. This dispute and litigation was disruptive to the management of the business of the Respondent for a period of about 5 months. 7. I believe, that as a result of that dispute, Mr Scott Mackenzie had taken minimal action in relation to this Application. 8. In or about December 1995 my son, Mr Robbie Woodward informed me that he had become aware of this matter and that it did not appear to have been dealt with fully by Mr Scott Mackenzie. I agreed that Mr Robbie Woodward would continue to instruct Mitchell, McKenzie & Co. to defend this Application. 9. On 8 February 1996, Mitchell, McKenzie & Co. sent by facsimile to the Respondent, a Notice by Solicitor Ceasing to Act. Now produced and marked "RHW1" is a true copy of the Notice. 10. Neither I nor any other representative of the Respondent had received any prior warning that the Respondent's solicitors would cease to act for us in this claim. 11. I instructed my son, Mr Robbie Woodward to attend and represent the Respondent at the hearing of this claim on 19 February 1996. Mr Robbie Woodward was not an employee or a director of the Respondent, but had full authority to represent the Respondent. I did not know that he would not be able to represent the Respondent when I instructed him to attend. 12. I understand from Mr Robbie Woodward who stayed in Court to hear the claim that Judicial Registrar Millane ordered that the Respondent pay the Applicant $13,000.00 compensation and $2,000.00 damages. 13. The Respondent did not have an opportunity to put its case against this claim, and therefore it would be unjust to require the Respondent to pay such a large sum of money before this Honourable Court has heard the Respondent's case. 14. The Respondent did make attempts to be represented at the hearing of this claim by Judicial Registrar Millane, and the only reason it was not represented was that I did not know my son was not able to represent my company. 15. In the circumstances, I humbly request that the Honourable Court grant the Orders sought in the accompanying Application." Mr Misso, of counsel, who appeared for the applicant on the review did not seek to cross examine Mr Woodward on the contents of that affidavit. Ms Cirkovic, who appeared for the respondent with Mr Muir, conceded that in order for the Court to grant a stay of the Judicial Registrar's orders pending the hearing and determination of the review, the respondent "is required to show special or exceptional circumstances" (see transcript pp 9-10). Ms Cirkovic also conceded that the Judicial Registrar's order in respect of damages was not under challenge and that the $2,000 would be paid to the applicant shortly. Ms Cirkovic did not put in issue the applicant's ability to re-pay the $13,000 in the event that the Court decided that no compensation or a lesser amount should be ordered. It was further conceded that no blame may be laid at the feet of the applicant regarding the matter. After hearing Ms Cirkovic I did not find it necessary to call upon Mr Misso on the question of the stay. In an ex-tempore decision in transcript, at p15, I held that:- "The only special circumstance in this case seems to be that the respondent was badly advised as to the manner of its representation before Judicial Registrar Millane. In the circumstances it is not appropriate to deprive the applicant of the fruits of his victory; however, the applicant should be aware that it may be that as a result of the hearing and determination of this review that the moneys, or at least $13,000 of the moneys he will receive in the interim may have to be repaid, and he should note I have so ordered in another case." I was there referring to my decision in Shane Ball v Tip Top Bakeries, Marshall J, WI R 575 of 1994, 12 January 1996, unreported, where I set aside orders of a Judicial Registrar inter alia for the payment of "remuneration lost" in circumstances where Lee J had earlier declined to stay the payment of the relevant sum, co-incidentally also $13,000.00. I ordered in the current matter that the stay application be dismissed and that $2,000 be paid to the applicant on or before 9 April 1996 and a further $13,000 be paid to him on or before 26 April 1996. I then commenced to hear the review at 11.10 am on 4 April 1996.