Sharp v Mirage Corporation Pty Ltd trading as Superstars Designs [1996] IRCA 263

Federal Court of Australia

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DECISION NO: 263/96 C A T C H W O R D S INDUSTRIAL LAW - Termination of Employment - Claim that application was invalid because not signed by the applicant - Probation - excluded Application - unpaid wages - payment in lieu of notice - equitable claim - complete and final determination. Industrial Relations Act 1988 ss.170CC, 170DC, 170EA, 418, 430 CASES: Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199

Coulson v Thomas Cook Ltd, IRCA 5 March 1996 (unreported) Decision No 66 of 1996, Matter WI-1224 of 1995 TASA SHARP -v- MIRAGE CORPORATION PTY LTD trading as SUPERSTARS DESIGNS No. VI-5514 of 1995 Before: Judicial Registrar Ryan Place: Melbourne Date: 17 June 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-5514 of 1995 B E T W E E N : TASA SHARP Applicant AND MIRAGE CORPORATION PTY LTD trading as SUPERSTARS DESIGNS Respondent MINUTES OF ORDERS Judicial Registrar Ryan 17 June 1996 THE COURT ORDERS: 1. The application pursuant to S170EA is dismissed. 2. The Respondent to pay the Applicant unpaid wages of one week in the sum of $347.82 and one week in lieu of notice, $347.82, a total of $695.64. 3. The Respondent pay the Applicant a sum in lieu of any leave entitlements which remain outstanding as a result of the termination of employment on 16 October 1995. 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-5514 of 1995 B E T W E E N : TASA SHARP Applicant AND MIRAGE CORPORATION PTY LTD trading as SUPERSTARS DESIGNS Respondent Before: Judicial Registrar Ryan Place: Melbourne Date: 17 June 1996 REASONS FOR JUDGMENT (EX TEMPORE) The Applicant claims unlawful termination of employment. She states in her application that she: (i) worked for the Respondent as a sales assistant from 26 July 1995 to 16 October 1995 in Hampton (ii) was given a notice of termination (iii) seeks reinstatement and compensation However, at the hearing, her solicitor, Mr Doyle, submitted that reinstatement was impracticable and he sought the maximum compensation payable under S170EE. The Respondent was represented by Mr Williams and had been recorded under the business name of Superstars Designs because this was the name under which a Notice of Employer's Appearance had been filed. The actual employer was Mirage Corporation Pty Ltd ACN 007 266 035. The directors of Mirage are Alexander and Sophie Merakis and the company trades under the name of Superstars Designs. The Respondent designs, makes and sells clothing for infants and children. The headquarters and major warehouse are in Richmond and retail outlets are operated in Richmond and Hampton. VALIDITY OF APPLICATION The Respondent challenged the validity of the application because the Applicant did not sign it. The application was completed on the authorised form 132 by Mr Doyle and filed by him on 30 October, the fourteenth day after the Applicant had received written notice of termination, if Exhibit A1 is accepted as written notice of termination. Exhibit A1 does not refer to termination or state that it is a notice of termination. The application was a valid application. Mr Doyle had instructions from his client. The application form 132 completed by Mr Doyle contains the following statement immediately under the box for signature of employee: "* Note: The application need not be signed by the employee if the Registrar is satisfied that obtaining the employee's signature would cause undue difficulty or delay AND the claim is made by a trade union on the employee's behalf, or the application has been prepared by a solicitor or an authorised representative under section 469 of the Act." The application was accepted by the Registrar; it was prepared by a solicitor and the obtaining of the Applicant's signature in Keysborough from a solicitor who practised in Wandong would have caused a delay which would have led to the application being filed outside the limit of 14 days prescribed in S170EA(3) - assuming that the limit applied in this case. Had it been necessary, the Court would have extended time in any event, but that eventuality did not arise and the application filed on 30 October is valid and within time. PROBATION The Respondent made another preliminary submission of more substance. That was that the Applicant was an employee excluded from the operation of subdivisions B, C, D and E of Division 3 of Part VIA of the Act being an employee serving a period of probation or a qualifying period of employment which period was determined in advance and was reasonable, having regard to the nature and circumstances of the employment. Initially, and in an attempt to save time, the Court began to hear evidence on this preliminary matter without the benefit of the other evidence in the case. However, when it became apparent that there was no written confirmation of pre-employment discussions or the terms of engagement, the Court decided that the jurisdictional issue of probation could not be determined in the absence of all the evidence to be called by both parties. The Applicant gave evidence and called one witness to give evidence as to the reaction of the Applicant when she returned home. The two proprietors of Superstars Designs gave evidence and a former employee and a customer of both the Richmond and Hampton shops also gave evidence. THE APPLICANT'S EVIDENCE The Applicant's evidence can be summarised as follows: She responded to an advertisement in The Age. She was interviewed and at the interview the nature of the Respondent's business, the proposed duties, the hours of work and her previous employment and experience were discussed but there was no mention, at the interview or at any other time, of a period of probation or a trial period. Her duties as a sales assistant at the Respondent's Hampton store included customer service, displaying, marking, replenishing and caring for stock (clothing for infants and small children) and keeping the shop clean and generally conducting the retail business of the Respondent from the Hampton store as the sole employee in the shop. The hours of work were 10 to 4 Monday to Friday and 10 to 1 on Saturdays, a total of 33 hours a week. The Applicant knew of no other deductions made other than tax and believe her wages were based on a rate of $10 an hour. The Applicant worked alone at Hampton. One or both of the proprietors of the Respondent's business visited the shop every two or three days to deliver stock and collect the takings. On one occasion, when the Applicant was speaking to Mrs Merakis, Mr Merakis told her that she needed to keep the shop tidy. On that occasion there was an unravelled jumper in the shop. On the second day of her employment, presumably 27 July, the Applicant discovered $10 missing from the till after she had made a sale and counted the money. She reported this fact to Mrs Merakis and was advised that, if there were cash discrepancies in future, deductions would be made from her wages. She stated that she was in no other way reprimanded in respect of that incident. The Applicant claims that neither Mr or Mrs Merakis, at any other time during her employment, or in respect of any other incident during her employment, reprimanded her or complained to her in respect of her work, her attitude, cleanliness, tidiness, loss of stock or money or making or receiving personal telephone calls. The Applicant conceded that she made a small number of personal phone calls on her own mobile phone during working hours and received some calls on that phone during working hours and had once telephoned her grandmother on the office phone and, on another occasion, had telephoned her physiotherapist on the office phone and had received two telephone calls from her mother on the office phone, one in relation to her sick grandmother and the other in relation to her sick grandfather. The Applicant conceded that on one occasion, about the middle of her period of employment, she took the office telephone off the receiver in accordance with what she claims was the Respondent's instructions that this procedure was to be followed if she was briefly leaving the shop to go to the toilet at the rear of the premises. She stated that she forgot to replace the phone and it was thus off the receiver for about 30 minutes. The Applicant stated that, in respect of this incident, a lady from a take-away store nearby was contacted by Mrs Merakis, and this was how she was alerted that the phone was off the hook. At about 1:00 pm on the day in question, first Mrs Merakis, and then Mr Merakis, contacted her by telephone and accused her of making personal telephone calls. The Applicant states that Mrs Merakis suggested that she was not responsible enough and perhaps should not be working for the Respondent. About a week before the employment ended she contacted the Richmond store and asked for additional stock which she claimed to have requested the previous week. She contacted the Richmond store again the next day following up on the stock and immediately thereafter Mr Merakis telephoned her back and told her she was not in future to telephone the Richmond store but was to contact him direct on his mobile phone if it was necessary to communicate with either himself or Mrs Merakis. On 16 October 1995 between 3 and 3:30 pm Mr Merakis attended at Hampton, closed the shop and told her that they could not keep her on, she was not suitable, the arrangement was not working and the Applicant was to collect her things and go. At this stage, the Applicant was handed a letter which she read at a friend's place about 4:30 or 5:00 pm. She stated that the letter referred to lost money, personal telephone calls, tidiness and another matter which, at that stage, the Applicant did not specify. The Applicant states that she received and banked a cheque for two weeks wages and the cheque was subsequently dishonoured. The Applicant contacted Mrs Merakis by telephone on the Monday after the employment ended (i.e. 23 October 1995) and asked why a cheque had been dishonoured. She states that Mrs Merakis asked her whether she had spoken to Mr Merakis and that a lot of goods were missing from the Hampton shop. The Applicant states that she asked Mrs Merakis whether she was being accused of stealing and that Mrs Merakis said: "You said it, I didn't" The Applicant stated in evidence that she thinks she spoke to Mr Merakis on the same day by telephone. Initially, in evidence, the Applicant stated that she could not remember the substance of this telephone conversation other than that she made an appointment to see Mr Merakis at the Hampton shop at 1:30 pm on the next Saturday (28 October). Later, in response to questions from the Court, she stated that Mr Merakis had said that a lot of stock was missing and that he asked her would she be prepared to meet him to try and resolve the problem. The Applicant states that on the Saturday, which her evidence puts as 28 October, she attended the Hampton store with a friend, Paul. The shop was closed. She telephoned the Richmond store and spoke to Mr Merakis and Paul also spoke to him. She states that Mr Merakis asked her whether the police had contacted her. Her evidence is not clear as to whether she responded to that question. She states that she then handed the telephone to Paul. He asked why the cheque had been stopped and why the police were involved. At this stage in her evidence, the Applicant stated that she had already received a telephone message to contact a Constable O'Neil but, despite attempts to contact him, had been unable to speak to him before her conversation with Mr Merakis on that Saturday. Her evidence amounts to an admission or claim that she knew on 28 October that the police wanted to contact her and that she had been unsuccessful in establishing such contact. She states that the conversation by telephone on the Saturday morning was the last conversation she had with either Mr or Mrs Merakis after and in relation to the ending of her employment. The Applicant's mother, Barbara Sharp, gave evidence that the Applicant had telephoned the Respondent, either Mr or Mrs Merakis, after the conclusion of the employment to obtain what Mrs Sharp described as "a resume for further work". The Applicant did not give any evidence to this effect but Mr Merakis confirmed that the Applicant rang him on 17 October 1995 the day after the employment ended and requested a resume. The reference by Mrs Sharp and Mr Merakis to a "resume" is clearly a reference to the Applicant's request. She was seeking a reference. Mr Merakis did not provide it. RESPONDENT'S EVIDENCE Apart from that confirmation, Mr and Mrs Merakis gave evidence which flatly contradicted many important aspects of the evidence given by the Applicant. They both state that they were present at the initial interview while the Applicant claims Mr Merakis was present in the Richmond premises and did not really participate in the interview. Both are adamant a probationary period of three months was discussed with the Applicant at the initial interview and was described as a trial period for both employer and employee. Both are adamant a period of probation was confirmed later. Mrs Merakis states she confirmed the probation period in detail on Wednesday 26 July 1995, the first day of the employment. Mr Merakis states he confirmed probation "on at least one memorable occasion" (i.e. 2 October 1995). Mrs Merakis rejects the Applicant's claim that the Applicant discovered $10 missing or unaccounted on the second day of the employment. She states that it was her and not the Applicant that discovered the $10 discrepancy and that it was on the third week of the employment and was at a time at which the Applicant was failing to balance either the cash or the stock ledger on a daily basis as instructed, and was failing to remove all cash, except a $50 float, from the till at close of business each day. Mrs Merakis further states that she discovered another $10 discrepancy the next week, (i.e. the fourth week of the employment) and that it was at that stage that she told the Applicant any further discrepancies would be deducted from her wages. Both Mr and Mrs Merakis claim that the Applicant was constantly warned and counselled about her work, her attitude, cleanliness and tidiness of the shop and balancing of stock and cash. Both Mr and Mrs Merakis claim that the Applicant was clearly told, at interview, and when she began, and on many other occasions, that personal calls, except in an emergency, were unacceptable and that the Applicant was reprimanded on a number of occasions for making and receiving personal calls. Both Mr and Mrs Merakis claim that the Applicant was told, Mrs Merakis says in September, not to continue to bring her mobile phone to work but that she continued to do it. Mrs Merakis states that she never commented again on the fact that the Applicant had her mobile phone at work. Mr Merakis states he was present when Mrs Merakis told the Applicant not to bring her mobile phone to work and that, on one occasion thereafter, he asked the Applicant why she had brought her mobile phone when she had been told not to do it, and that she replied, "well, tough". Both Mr and Mrs Merakis deny that the Applicant was ever given an instruction that she was to take the office telephone off the hook if leaving the shop for a short period during working hours. Mrs Merakis states that contrary to the evidence of the Applicant she never had any personal or telephone contact with the Applicant after the incident in which a lady from the nearby take-away shop, acting on her instructions, alerted the Applicant to the fact that the phone was engaged. The Court describes the incident in those terms because there is no admissible evidence, elicited by the Respondent, that the Applicant was actually talking on the telephone when the take-away lady entered the Hampton shop. There is evidence from Mrs Merakis, elicited in fact by Mr Doyle on behalf of the Applicant, that the take-away lady did advise that the Applicant was on the telephone. This woman was not called as a witness. The Applicant's own evidence was that the telephone was off the hook and she had forgotten to replace it. The major conflicts here are the categorical denial, on behalf of the Respondent, of an instruction to take the phone off the hook, and the equally firm denial by Mrs Merakis that she ever had any communication again with the Applicant after this incident. Mrs Merakis states that, during this incident, she told the Applicant that she was not responsible and perhaps should not be working for the Respondent. The Applicant confirmed that advice but vigorously denied that, at that stage, she told Mrs Merakis "to get stuffed". Mrs Merakis says she was addressed in those terms and that as a result she never spoke to or saw the Applicant again. Mr Merakis confirmed that his wife reported in those terms to him. FINDINGS ON THE EVIDENCE There are many similarities between the circumstances in this case and in that of Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199. In both cases: 1. a claim was made that the Applicant was an excluded employee because of a period of probation, in Nicolson a period of two months, in this case three months 2. the period of probation was alleged to have been discussed with the Applicant prior to the employment and by directors of the employing company, three directors in Nicolson and two directors in this case 3. neither the alleged probation or the terms and conditions of employment were confirmed in writing 4. the Applicant alleges substantive and procedural breaches of the Act, stating that there was no valid reason for the termination connected with capacity or conduct or based on the employer's operational requirement and that there was a breach of S170DC because Mr Nicolson and Ms Sharp were not given the opportunity to defend themselves against the allegations made against them There are also some differences between circumstances in this case and in Nicolson. Mr Nicolson was employed to boost sales in a retail shop in Queen Victoria Building in central Sydney and, for a short time, until he could find an office elsewhere, he worked from the shop but he was never employed to manage the shop or to be directly involved in sales. Acrimony developed between Mr Nicolson and the shop staff. On the other hand, Ms Sharp was employed to manage a small retail shop in suburban Melbourne. After a brief period, she worked alone and was responsible for the management and conduct of the shop. She was not responsible for banking the proceeds but she was expected to balance cash and stock. She was certainly responsible for the supervision of the shop and the safety of stock during the 33 hours a week when the shop was scheduled to be open. The Chief Justice commented on the difficulty of resolving the conflict of evidence on the question whether there was a stipulated trial period in Nicolson at 204 and 205: "It is not easy to resolve the conflict of evidence on the question whether there was a stipulated trial period. There was nothing about the demeanour of any witness that would cause me to reject his or her evidence. None of the witnesses gave self-contradictory evidence or changed his or her story under cross-examination. If I had had to determine whether or not there was an agreement for a trial period as a preliminary matter, without having the benefit of the other evidence in this case, I would have found this an impossible task. However, having that wider perspective, I think it probable that Mr Holt did specify a two-month trial period. There are two reasons for my conclusion. The first is that I think the respondent's version of the sequence of conversations more likely than that of the applicant. The second is that I have doubts about Mr Nicolson's credit-worthiness, whereas I see no reason to doubt the truthfulness of Mr Holt and Mrs Naughton." In this case, I do have doubts about Ms Sharp's credit worthiness. Unfortunately I am also not convinced that all aspects of the evidence of Mr and Mrs Merakis are entirely plausible. At the conclusion of the hearing I stated: "There are numerous conflicts between the evidence of the Applicant and Mr and Mrs Merakis. They disagree on almost every crucial issue of fact. The Court may not be entirely satisfied that either version on every occasion is an accurate or even plausible description or explanation of what occurred but the Court must, first, in relation to the preliminary issue of jurisdiction, and if I get to it, other issues of substance, make findings of fact no matter how difficult. Fortunately, the Court can do this, and will do it, using a test of balance of probabilities rather than beyond reasonable doubt." Aspects of Ms Sharp's evidence which I found inherently unlikely include her claim that she was instructed to leave the telephone off the hook when leaving the shop for any short period. I also note that she concedes that Mrs Merakis did tell her by telephone, after the take-away lady incident, that she was not responsible and perhaps should not be working for the Respondent. I find this occurred on 30 September 1995. The Applicant denies that she told Mrs Merakis at that time "to get stuffed" and claims that she spoke to Mrs Merakis on at least two occasions thereafter. Mrs Merakis and Mr Merakis say that Mrs Merakis never communicated with the Applicant again and Mr Merakis confirms that Mrs Merakis immediately complained to him about the Applicant's conduct. I find that, on a balance of probabilities, the Applicant was rude and dismissive of Mrs Merakis as outlined in the evidence and that Mrs Merakis never communicated again with her. Using the test of balance of probabilities, I prefer the evidence of Mr and Mrs Merakis whenever it conflicts with that of the Applicant. Having said that, I have concluded that Mr and Mrs Merakis have exaggerated some events, particularly the alleged time and nature of telephone calls from the Applicant to her Richmond counterpart, Ms Yvonne Xuereb. It is difficult in such circumstances. I have some sympathy with Mr Doyle's submission which, in effect, was similar to that of Mr Christie in Nicolson. However, I am content to rely on the Chief Justice in Nicolson. He stated at 207 and 208: "Finally, Mr Christie emphasised the lack of documentary evidence of a probationary agreement, I quote from his written submission: 'The Court should be predisposed against finding a probationary period in the absence of clear evidence to that effect. It is a drastic step, and contrary to the policy of the legislation, to entirely deprive an employee of the benefits of the Act on the basis of disputed oral evidence as to the existence of a probationary period. (Indeed, it is respectfully submitted that an employee should not be deprived of the benefits of the Act by recourse to a probationary period, in the absence of clear evidence - preferably documentary.) For that reason, in addition to the factors going to the credit of the witnesses mentioned above, the Court is asked to find that there is no probationary period in relation to Mr Nicolson.' I have some sympathy for this submission. It would have been easy for Mr Holt to send Mr Nicolson a short letter confirming the terms of his appointment, including the fact that it was subject to a two-month probationary period. Where such an easy step is omitted, it is tempting for a judge to say that, if employers do not bother to put the terms of the agreement in writing, they ought not to expect a court to accept that there was an oral agreement for a probationary period. However, lawyers have been lamenting that commercial people often fail to put agreements in writing since time immemorial; to little effect. Notwithstanding the failure of parties to take this obvious step, courts have to take the evidence as they find it and endeavour to divine the truth. I must resist Mr Christie's invitation to treat the absence of writing as a reason for preferring his case on this issue. However, the submission provokes me to emphasise the desirability of employers confirming by contemporaneous letter the terms of engagement of employees. It is particularly desirable that they do this in cases where an employee is engaged on one of the bases referred to in reg 30B; that is, under a contract of employment for a specified period of time, or for a specified task, under a contract providing for a probationary or qualifying period of employment or as a casual employee engaged for a short period of time. If the employment of such an employee is terminated and a claim is brought under S170EA of the Act, employers may be assured that the judge or judicial registrar who hears the case will earnestly endeavour to determine the true terms of employment. But evidentiary conflicts turning on different versions of conversations are notoriously difficult to resolve. With the best will in the world, the court may wrongly find against the employer's claim that there was an oral arrangement making the contract one to which reg 30B applied. By contrast, a contemporaneous letter, clearly specifying the terms of employment, would probably ensure the employer's success in defending the claim. Indeed, its mere existence may persuade the applicant not to bring, or persist with, the claim. This is, itself, a matter of moment. Even an employer who successfully resists a claim under S170EA will incur some cost and inconvenience. Employer organisations will serve their members well if they draw their attention to this matter." The Court can only echo those comments again in this case. Despite the lack of documentary evidence, I find that the Applicant was told, prior to her employment, and on the first day of her employment, and on 2 October 1995, that she was on probation and the period was three months. In that respect, I note also the evidence of Ms Xuereb. I did indicate to both Mr Doyle and Mr Williams (Counsel for the Respondent), in the course of the former's cross-examination of Ms Xuereb, that I had, at that stage, determined that her evidence was unlikely to be held favourable or adverse to either party. I have to say that, on reflection, her evidence about the conversation with the Applicant does not support the Respondent's contention that the Applicant was spending undue time on the phone with Ms Xuereb on social chit chat. Furthermore, Ms Xuereb's evidence that she was on a Job Start Allowance could explain a period of probation in her case and is not evidence which assists the Respondent as an example of a similar practice taken earlier and prior to the employment of the Applicant. On the other hand, Ms Xuereb presented as a genuine, objective witness. She gave some evidence which was not favourable to, or of assistance to, the Respondent. There is no evidence that she was briefed to provide evidence favourable to the Respondent. Nevertheless, she did give evidence which I accept, which was to the effect that she was told she was to be put on probation because the Respondent had experienced difficulty with another employee. This evidence is consistent with that of Mr and Mrs Merakis. It is evidence which supports the probability that Mr and Mrs Merakis followed a similar course with the Applicant given that the Applicant was recruited and employed after Ms Xuereb. There remains the question of whether the period of probation was reasonable. Again in Nicolson, at 208 the Chief Justice said: "Whether or not the stipulated period is reasonable, is a matter that has to be determined by the person hearing the case, as an exercise of judgement. The judgment should be based on the proved objective facts, not on someone else's opinion. Probably the most important consideration, in determining what is a reasonable period, will be the nature of the job. In the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not extend beyond a week or two. In the case of a person employed in a marketing or managerial position, working with little or no direct supervision and whose quality of performance cannot be immediately apparent, it may be reasonable for an employer to specify a probationary period measured in months. Circumstances will vary from case to case; the size, location and mode of operation of the employer being relevant factors, along with the personal characteristics and circumstances of the employee. The legislature has not prescribed the maximum extent of a reasonable period. It is not for me to do so. But I suspect that an employer will rarely be able to justify a period exceeding two or three months, in the case of an employee to whom Pt VIA now applies." With great respect, I can envisage a number of circumstances in which probation in excess of three months, and certainly up to six months, would be justifiable with employees to whom Part VIA applies. As the Chief Justice says, it depends on the circumstances. Here, the Applicant was in sole charge of the shop and responsible for the security of stock and cash. I consider the period of probation reasonable in the circumstances. It follows that the application under S170EA must be dismissed because the Applicant is excluded from the operation of subdivisions B and C of Division 3 of Part VIA of the Act. Having reached this conclusion, it is neither necessary nor appropriate for me to comment on the merits of the substantive application. The Chief Justice did so in Nicolson because the case had been fully argued before him and he took the opportunity to comment on S170DC and S170EE in a climate in which the legislation was still very new. His comments have been constantly cited and clearly have been of considerable assistance to judges and judicial registrars in this Court. I will merely endorse his comments on S170DC. I suggest that the Respondent's legal representatives would be well advised to explain the ramifications of S170DC and indeed all of Division 3 of Part VIA to their clients. UNPAID WAGES AND NOTICE OF TERMINATION There is one other matter I do propose to deal with. The Respondent initially, at termination, provided the Applicant with a cheque representing payment for her last week at work and for one week in lieu of notice. The day after the termination Mr Merakis undertook a stocktake. He concluded that about 250 items of stock to the value of $2,500 to $3,000 were unaccounted. He referred the matter to the police and on the advice of the police the cheque for two weeks wages was stopped. The Applicant was interviewed by police in respect of the stock discrepancies. No charges were laid against her and she appears to have taken civil action against the Respondent. Mr Williams led evidence of the stock discrepancies presumably on the basis that this information, although acquired after termination, presented a further valid ground for termination in the event that the Court found in favour of the Applicant in terms of jurisdiction. The issue of stock discrepancies as such is not a matter for this Court, given that the application under S170EA lacks jurisdiction and is dismissed. However, the evidence, presented by the Respondent on the missing items, relied on stock ledger entries (Exhibit R3), the bulk of which were made on 20 July 1995 before the Hampton shop opened and before the Applicant was employed. Mr Merakis was unable to confirm the existence of ledger entries at Richmond recording stock transferred to Hampton. It seems to the Court that the Respondent has real difficulty in establishing whether stock is unaccounted and, if so, what stock. If significant stock actually in the Hampton store on 20 July 1995, or delivered thereafter, is unaccounted at stocktake on 27 July, the day after termination, then the Applicant, as the sole operator of the shop for most of the 33 operating hours per week for over two months of the period 26 July to 16 October, might be expected to bear some responsibility for inadequate supervision during operating hours. That expectation would also depend on an absence of evidence of unauthorised removal of stock outside of operating hours. In this case, this Court is far from satisfied that the Respondent has or can establish that stock is missing, or if missing, how that occurred, and if missing, the Respondent cannot demonstrate that the stock was not removed prior to 26 July or out of hours between 26 July and 16 October. Even if the Respondent could establish unaccounted stock in the period 26 July to 16 October, there is no evidence so far presented which could attribute to the Applicant a responsibility for that stock. In such circumstances, it is appropriate to consider the equity of depriving and continuing to deprive the Applicant of wages for the last week of her employment and wages for a week in lieu of notice. Section 418 reads: "In every matter before it, the Court is to grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided." Section 430(1) reads: "So far as the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked." In my view, provided a remedy results from a legal or equitable claim arising in proceedings relating to a claim that the termination of an employee's employment was unlawful, a judicial registrar is empowered, pursuant to S418 and S430(1), to determine the matter of unpaid wages and lack of payment in lieu of notice. In that conclusion I draw comfort from the reasoning of Madgwick J in Coulson v Thomas Cook Ltd, IRCA 5 March 1996 (unreported) Decision No 66 of 1996, Matter WI-1224 of 1995, although that case is not in itself authority for the view I have expressed. I therefore order the Respondent to pay to the Applicant unpaid wages of one week in the sum of $347.82 gross and one week in lieu of notice ($347.82) a total of $695.64. The calculations are based on 33 hours a week at $10.54 an hour. I also order the Respondent to pay the Applicant a sum in lieu of any leave entitlements which remained outstanding at the date of termination, if there be any such entitlements outstanding. MINUTES OF ORDERS THE COURT ORDERS: 1. The application pursuant to S170EA is dismissed. 2. The Respondent to pay the Applicant unpaid wages of one week in the sum of $347.82 and one week in lieu of notice, $347.82, a total of $695.64. 3. The Respondent pay the Applicant a sum in lieu of any leave entitlements which remain outstanding as a result of the termination of employment on 16 October 1995. 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 13 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan. Associate:

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INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-5514 of 1995 B E T W E E N : TASA SHARP Applicant AND MIRAGE CORPORATION PTY LTD trading as SUPERSTARS DESIGNS Respondent MINUTES OF ORDERS Judicial Registrar Ryan 17 June 1996 THE COURT ORDERS: 1. The application pursuant to S170EA is dismissed. 2. The Respondent to pay the Applicant unpaid wages of one week in the sum of $347.82 and one week in lieu of notice, $347.82, a total of $695.64. 3. The Respondent pay the Applicant a sum in lieu of any leave entitlements which remain outstanding as a result of the termination of employment on 16 October 1995. 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-5514 of 1995 B E T W E E N : TASA SHARP Applicant AND MIRAGE CORPORATION PTY LTD trading as SUPERSTARS DESIGNS Respondent Before: Judicial Registrar Ryan Place: Melbourne Date: 17 June 1996 REASONS FOR JUDGMENT (EX TEMPORE) The Applicant claims unlawful termination of employment. She states in her application that she: (i) worked for the Respondent as a sales assistant from 26 July 1995 to 16 October 1995 in Hampton (ii) was given a notice of termination (iii) seeks reinstatement and compensation However, at the hearing, her solicitor, Mr Doyle, submitted that reinstatement was impracticable and he sought the maximum compensation payable under S170EE. The Respondent was represented by Mr Williams and had been recorded under the business name of Superstars Designs because this was the name under which a Notice of Employer's Appearance had been filed. The actual employer was Mirage Corporation Pty Ltd ACN 007 266 035. The directors of Mirage are Alexander and Sophie Merakis and the company trades under the name of Superstars Designs. The Respondent designs, makes and sells clothing for infants and children. The headquarters and major warehouse are in Richmond and retail outlets are operated in Richmond and Hampton. VALIDITY OF APPLICATION The Respondent challenged the validity of the application because the Applicant did not sign it. The application was completed on the authorised form 132 by Mr Doyle and filed by him on 30 October, the fourteenth day after the Applicant had received written notice of termination, if Exhibit A1 is accepted as written notice of termination. Exhibit A1 does not refer to termination or state that it is a notice of termination. The application was a valid application. Mr Doyle had instructions from his client. The application form 132 completed by Mr Doyle contains the following statement immediately under the box for signature of employee: "* Note: The application need not be signed by the employee if the Registrar is satisfied that obtaining the employee's signature would cause undue difficulty or delay AND the claim is made by a trade union on the employee's behalf, or the application has been prepared by a solicitor or an authorised representative under section 469 of the Act." The application was accepted by the Registrar; it was prepared by a solicitor and the obtaining of the Applicant's signature in Keysborough from a solicitor who practised in Wandong would have caused a delay which would have led to the application being filed outside the limit of 14 days prescribed in S170EA(3) - assuming that the limit applied in this case. Had it been necessary, the Court would have extended time in any event, but that eventuality did not arise and the application filed on 30 October is valid and within time. PROBATION The Respondent made another preliminary submission of more substance. That was that the Applicant was an employee excluded from the operation of subdivisions B, C, D and E of Division 3 of Part VIA of the Act being an employee serving a period of probation or a qualifying period of employment which period was determined in advance and was reasonable, having regard to the nature and circumstances of the employment. Initially, and in an attempt to save time, the Court began to hear evidence on this preliminary matter without the benefit of the other evidence in the case. However, when it became apparent that there was no written confirmation of pre-employment discussions or the terms of engagement, the Court decided that the jurisdictional issue of probation could not be determined in the absence of all the evidence to be called by both parties. The Applicant gave evidence and called one witness to give evidence as to the reaction of the Applicant when she returned home. The two proprietors of Superstars Designs gave evidence and a former employee and a customer of both the Richmond and Hampton shops also gave evidence. THE APPLICANT'S EVIDENCE The Applicant's evidence can be summarised as follows: She responded to an advertisement in The Age. She was interviewed and at the interview the nature of the Respondent's business, the proposed duties, the hours of work and her previous employment and experience were discussed but there was no mention, at the interview or at any other time, of a period of probation or a trial period. Her duties as a sales assistant at the Respondent's Hampton store included customer service, displaying, marking, replenishing and caring for stock (clothing for infants and small children) and keeping the shop clean and generally conducting the retail business of the Respondent from the Hampton store as the sole employee in the shop. The hours of work were 10 to 4 Monday to Friday and 10 to 1 on Saturdays, a total of 33 hours a week. The Applicant knew of no other deductions made other than tax and believe her wages were based on a rate of $10 an hour. The Applicant worked alone at Hampton. One or both of the proprietors of the Respondent's business visited the shop every two or three days to deliver stock and collect the takings. On one occasion, when the Applicant was speaking to Mrs Merakis, Mr Merakis told her that she needed to keep the shop tidy. On that occasion there was an unravelled jumper in the shop. On the second day of her employment, presumably 27 July, the Applicant discovered $10 missing from the till after she had made a sale and counted the money. She reported this fact to Mrs Merakis and was advised that, if there were cash discrepancies in future, deductions would be made from her wages. She stated that she was in no other way reprimanded in respect of that incident. The Applicant claims that neither Mr or Mrs Merakis, at any other time during her employment, or in respect of any other incident during her employment, reprimanded her or complained to her in respect of her work, her attitude, cleanliness, tidiness, loss of stock or money or making or receiving personal telephone calls. The Applicant conceded that she made a small number of personal phone calls on her own mobile phone during working hours and received some calls on that phone during working hours and had once telephoned her grandmother on the office phone and, on another occasion, had telephoned her physiotherapist on the office phone and had received two telephone calls from her mother on the office phone, one in relation to her sick grandmother and the other in relation to her sick grandfather. The Applicant conceded that on one occasion, about the middle of her period of employment, she took the office telephone off the receiver in accordance with what she claims was the Respondent's instructions that this procedure was to be followed if she was briefly leaving the shop to go to the toilet at the rear of the premises. She stated that she forgot to replace the phone and it was thus off the receiver for about 30 minutes. The Applicant stated that, in respect of this incident, a lady from a take-away store nearby was contacted by Mrs Merakis, and this was how she was alerted that the phone was off the hook. At about 1:00 pm on the day in question, first Mrs Merakis, and then Mr Merakis, contacted her by telephone and accused her of making personal telephone calls. The Applicant states that Mrs Merakis suggested that she was not responsible enough and perhaps should not be working for the Respondent. About a week before the employment ended she contacted the Richmond store and asked for additional stock which she claimed to have requested the previous week. She contacted the Richmond store again the next day following up on the stock and immediately thereafter Mr Merakis telephoned her back and told her she was not in future to telephone the Richmond store but was to contact him direct on his mobile phone if it was necessary to communicate with either himself or Mrs Merakis. On 16 October 1995 between 3 and 3:30 pm Mr Merakis attended at Hampton, closed the shop and told her that they could not keep her on, she was not suitable, the arrangement was not working and the Applicant was to collect her things and go. At this stage, the Applicant was handed a letter which she read at a friend's place about 4:30 or 5:00 pm. She stated that the letter referred to lost money, personal telephone calls, tidiness and another matter which, at that stage, the Applicant did not specify. The Applicant states that she received and banked a cheque for two weeks wages and the cheque was subsequently dishonoured. The Applicant contacted Mrs Merakis by telephone on the Monday after the employment ended (i.e. 23 October 1995) and asked why a cheque had been dishonoured. She states that Mrs Merakis asked her whether she had spoken to Mr Merakis and that a lot of goods were missing from the Hampton shop. The Applicant states that she asked Mrs Merakis whether she was being accused of stealing and that Mrs Merakis said: "You said it, I didn't" The Applicant stated in evidence that she thinks she spoke to Mr Merakis on the same day by telephone. Initially, in evidence, the Applicant stated that she could not remember the substance of this telephone conversation other than that she made an appointment to see Mr Merakis at the Hampton shop at 1:30 pm on the next Saturday (28 October). Later, in response to questions from the Court, she stated that Mr Merakis had said that a lot of stock was missing and that he asked her would she be prepared to meet him to try and resolve the problem. The Applicant states that on the Saturday, which her evidence puts as 28 October, she attended the Hampton store with a friend, Paul. The shop was closed. She telephoned the Richmond store and spoke to Mr Merakis and Paul also spoke to him. She states that Mr Merakis asked her whether the police had contacted her. Her evidence is not clear as to whether she responded to that question. She states that she then handed the telephone to Paul. He asked why the cheque had been stopped and why the police were involved. At this stage in her evidence, the Applicant stated that she had already received a telephone message to contact a Constable O'Neil but, despite attempts to contact him, had been unable to speak to him before her conversation with Mr Merakis on that Saturday. Her evidence amounts to an admission or claim that she knew on 28 October that the police wanted to contact her and that she had been unsuccessful in establishing such contact. She states that the conversation by telephone on the Saturday morning was the last conversation she had with either Mr or Mrs Merakis after and in relation to the ending of her employment. The Applicant's mother, Barbara Sharp, gave evidence that the Applicant had telephoned the Respondent, either Mr or Mrs Merakis, after the conclusion of the employment to obtain what Mrs Sharp described as "a resume for further work". The Applicant did not give any evidence to this effect but Mr Merakis confirmed that the Applicant rang him on 17 October 1995 the day after the employment ended and requested a resume. The reference by Mrs Sharp and Mr Merakis to a "resume" is clearly a reference to the Applicant's request. She was seeking a reference. Mr Merakis did not provide it. RESPONDENT'S EVIDENCE Apart from that confirmation, Mr and Mrs Merakis gave evidence which flatly contradicted many important aspects of the evidence given by the Applicant. They both state that they were present at the initial interview while the Applicant claims Mr Merakis was present in the Richmond premises and did not really participate in the interview. Both are adamant a probationary period of three months was discussed with the Applicant at the initial interview and was described as a trial period for both employer and employee. Both are adamant a period of probation was confirmed later. Mrs Merakis states she confirmed the probation period in detail on Wednesday 26 July 1995, the first day of the employment. Mr Merakis states he confirmed probation "on at least one memorable occasion" (i.e. 2 October 1995). Mrs Merakis rejects the Applicant's claim that the Applicant discovered $10 missing or unaccounted on the second day of the employment. She states that it was her and not the Applicant that discovered the $10 discrepancy and that it was on the third week of the employment and was at a time at which the Applicant was failing to balance either the cash or the stock ledger on a daily basis as instructed, and was failing to remove all cash, except a $50 float, from the till at close of business each day. Mrs Merakis further states that she discovered another $10 discrepancy the next week, (i.e. the fourth week of the employment) and that it was at that stage that she told the Applicant any further discrepancies would be deducted from her wages. Both Mr and Mrs Merakis claim that the Applicant was constantly warned and counselled about her work, her attitude, cleanliness and tidiness of the shop and balancing of stock and cash. Both Mr and Mrs Merakis claim that the Applicant was clearly told, at interview, and when she began, and on many other occasions, that personal calls, except in an emergency, were unacceptable and that the Applicant was reprimanded on a number of occasions for making and receiving personal calls. Both Mr and Mrs Merakis claim that the Applicant was told, Mrs Merakis says in September, not to continue to bring her mobile phone to work but that she continued to do it. Mrs Merakis states that she never commented again on the fact that the Applicant had her mobile phone at work. Mr Merakis states he was present when Mrs Merakis told the Applicant not to bring her mobile phone to work and that, on one occasion thereafter, he asked the Applicant why she had brought her mobile phone when she had been told not to do it, and that she replied, "well, tough". Both Mr and Mrs Merakis deny that the Applicant was ever given an instruction that she was to take the office telephone off the hook if leaving the shop for a short period during working hours. Mrs Merakis states that contrary to the evidence of the Applicant she never had any personal or telephone contact with the Applicant after the incident in which a lady from the nearby take-away shop, acting on her instructions, alerted the Applicant to the fact that the phone was engaged. The Court describes the incident in those terms because there is no admissible evidence, elicited by the Respondent, that the Applicant was actually talking on the telephone when the take-away lady entered the Hampton shop. There is evidence from Mrs Merakis, elicited in fact by Mr Doyle on behalf of the Applicant, that the take-away lady did advise that the Applicant was on the telephone. This woman was not called as a witness. The Applicant's own evidence was that the telephone was off the hook and she had forgotten to replace it. The major conflicts here are the categorical denial, on behalf of the Respondent, of an instruction to take the phone off the hook, and the equally firm denial by Mrs Merakis that she ever had any communication again with the Applicant after this incident. Mrs Merakis states that, during this incident, she told the Applicant that she was not responsible and perhaps should not be working for the Respondent. The Applicant confirmed that advice but vigorously denied that, at that stage, she told Mrs Merakis "to get stuffed". Mrs Merakis says she was addressed in those terms and that as a result she never spoke to or saw the Applicant again. Mr Merakis confirmed that his wife reported in those terms to him. FINDINGS ON THE EVIDENCE There are many similarities between the circumstances in this case and in that of Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199. In both cases: 1. a claim was made that the Applicant was an excluded employee because of a period of probation, in Nicolson a period of two months, in this case three months 2. the period of probation was alleged to have been discussed with the Applicant prior to the employment and by directors of the employing company, three directors in Nicolson and two directors in this case 3. neither the alleged probation or the terms and conditions of employment were confirmed in writing 4. the Applicant alleges substantive and procedural breaches of the Act, stating that there was no valid reason for the termination connected with capacity or conduct or based on the employer's operational requirement and that there was a breach of S170DC because Mr Nicolson and Ms Sharp were not given the opportunity to defend themselves against the allegations made against them There are also some differences between circumstances in this case and in Nicolson. Mr Nicolson was employed to boost sales in a retail shop in Queen Victoria Building in central Sydney and, for a short time, until he could find an office elsewhere, he worked from the shop but he was never employed to manage the shop or to be directly involved in sales. Acrimony developed between Mr Nicolson and the shop staff. On the other hand, Ms Sharp was employed to manage a small retail shop in suburban Melbourne. After a brief period, she worked alone and was responsible for the management and conduct of the shop. She was not responsible for banking the proceeds but she was expected to balance cash and stock. She was certainly responsible for the supervision of the shop and the safety of stock during the 33 hours a week when the shop was scheduled to be open. The Chief Justice commented on the difficulty of resolving the conflict of evidence on the question whether there was a stipulated trial period in Nicolson at 204 and 205: "It is not easy to resolve the conflict of evidence on the question whether there was a stipulated trial period. There was nothing about the demeanour of any witness that would cause me to reject his or her evidence. None of the witnesses gave self-contradictory evidence or changed his or her story under cross-examination. If I had had to determine whether or not there was an agreement for a trial period as a preliminary matter, without having the benefit of the other evidence in this case, I would have found this an impossible task. However, having that wider perspective, I think it probable that Mr Holt did specify a two-month trial period. There are two reasons for my conclusion. The first is that I think the respondent's version of the sequence of conversations more likely than that of the applicant. The second is that I have doubts about Mr Nicolson's credit-worthiness, whereas I see no reason to doubt the truthfulness of Mr Holt and Mrs Naughton." In this case, I do have doubts about Ms Sharp's credit worthiness. Unfortunately I am also not convinced that all aspects of the evidence of Mr and Mrs Merakis are entirely plausible. At the conclusion of the hearing I stated: "There are numerous conflicts between the evidence of the Applicant and Mr and Mrs Merakis. They disagree on almost every crucial issue of fact. The Court may not be entirely satisfied that either version on every occasion is an accurate or even plausible description or explanation of what occurred but the Court must, first, in relation to the preliminary issue of jurisdiction, and if I get to it, other issues of substance, make findings of fact no matter how difficult. Fortunately, the Court can do this, and will do it, using a test of balance of probabilities rather than beyond reasonable doubt." Aspects of Ms Sharp's evidence which I found inherently unlikely include her claim that she was instructed to leave the telephone off the hook when leaving the shop for any short period. I also note that she concedes that Mrs Merakis did tell her by telephone, after the take-away lady incident, that she was not responsible and perhaps should not be working for the Respondent. I find this occurred on 30 September 1995. The Applicant denies that she told Mrs Merakis at that time "to get stuffed" and claims that she spoke to Mrs Merakis on at least two occasions thereafter. Mrs Merakis and Mr Merakis say that Mrs Merakis never communicated with the Applicant again and Mr Merakis confirms that Mrs Merakis immediately complained to him about the Applicant's conduct. I find that, on a balance of probabilities, the Applicant was rude and dismissive of Mrs Merakis as outlined in the evidence and that Mrs Merakis never communicated again with her. Using the test of balance of probabilities, I prefer the evidence of Mr and Mrs Merakis whenever it conflicts with that of the Applicant. Having said that, I have concluded that Mr and Mrs Merakis have exaggerated some events, particularly the alleged time and nature of telephone calls from the Applicant to her Richmond counterpart, Ms Yvonne Xuereb. It is difficult in such circumstances. I have some sympathy with Mr Doyle's submission which, in effect, was similar to that of Mr Christie in Nicolson. However, I am content to rely on the Chief Justice in Nicolson. He stated at 207 and 208: "Finally, Mr Christie emphasised the lack of documentary evidence of a probationary agreement, I quote from his written submission: 'The Court should be predisposed against finding a probationary period in the absence of clear evidence to that effect. It is a drastic step, and contrary to the policy of the legislation, to entirely deprive an employee of the benefits of the Act on the basis of disputed oral evidence as to the existence of a probationary period. (Indeed, it is respectfully submitted that an employee should not be deprived of the benefits of the Act by recourse to a probationary period, in the absence of clear evidence - preferably documentary.) For that reason, in addition to the factors going to the credit of the witnesses mentioned above, the Court is asked to find that there is no probationary period in relation to Mr Nicolson.' I have some sympathy for this submission. It would have been easy for Mr Holt to send Mr Nicolson a short letter confirming the terms of his appointment, including the fact that it was subject to a two-month probationary period. Where such an easy step is omitted, it is tempting for a judge to say that, if employers do not bother to put the terms of the agreement in writing, they ought not to expect a court to accept that there was an oral agreement for a probationary period. However, lawyers have been lamenting that commercial people often fail to put agreements in writing since time immemorial; to little effect. Notwithstanding the failure of parties to take this obvious step, courts have to take the evidence as they find it and endeavour to divine the truth. I must resist Mr Christie's invitation to treat the absence of writing as a reason for preferring his case on this issue. However, the submission provokes me to emphasise the desirability of employers confirming by contemporaneous letter the terms of engagement of employees. It is particularly desirable that they do this in cases where an employee is engaged on one of the bases referred to in reg 30B; that is, under a contract of employment for a specified period of time, or for a specified task, under a contract providing for a probationary or qualifying period of employment or as a casual employee engaged for a short period of time. If the employment of such an employee is terminated and a claim is brought under S170EA of the Act, employers may be assured that the judge or judicial registrar who hears the case will earnestly endeavour to determine the true terms of employment. But evidentiary conflicts turning on different versions of conversations are notoriously difficult to resolve. With the best will in the world, the court may wrongly find against the employer's claim that there was an oral arrangement making the contract one to which reg 30B applied. By contrast, a contemporaneous letter, clearly specifying the terms of employment, would probably ensure the employer's success in defending the claim. Indeed, its mere existence may persuade the applicant not to bring, or persist with, the claim. This is, itself, a matter of moment. Even an employer who successfully resists a claim under S170EA will incur some cost and inconvenience. Employer organisations will serve their members well if they draw their attention to this matter." The Court can only echo those comments again in this case. Despite the lack of documentary evidence, I find that the Applicant was told, prior to her employment, and on the first day of her employment, and on 2 October 1995, that she was on probation and the period was three months. In that respect, I note also the evidence of Ms Xuereb. I did indicate to both Mr Doyle and Mr Williams (Counsel for the Respondent), in the course of the former's cross-examination of Ms Xuereb, that I had, at that stage, determined that her evidence was unlikely to be held favourable or adverse to either party. I have to say that, on reflection, her evidence about the conversation with the Applicant does not support the Respondent's contention that the Applicant was spending undue time on the phone with Ms Xuereb on social chit chat. Furthermore, Ms Xuereb's evidence that she was on a Job Start Allowance could explain a period of probation in her case and is not evidence which assists the Respondent as an example of a similar practice taken earlier and prior to the employment of the Applicant. On the other hand, Ms Xuereb presented as a genuine, objective witness. She gave some evidence which was not favourable to, or of assistance to, the Respondent. There is no evidence that she was briefed to provide evidence favourable to the Respondent. Nevertheless, she did give evidence which I accept, which was to the effect that she was told she was to be put on probation because the Respondent had experienced difficulty with another employee. This evidence is consistent with that of Mr and Mrs Merakis. It is evidence which supports the probability that Mr and Mrs Merakis followed a similar course with the Applicant given that the Applicant was recruited and employed after Ms Xuereb. There remains the question of whether the period of probation was reasonable. Again in Nicolson, at 208 the Chief Justice said: "Whether or not the stipulated period is reasonable, is a matter that has to be determined by the person hearing the case, as an exercise of judgement. The judgment should be based on the proved objective facts, not on someone else's opinion. Probably the most important consideration, in determining what is a reasonable period, will be the nature of the job. In the case of a person employed to carry out repetitive duties under close supervision, a reasonable period may not extend beyond a week or two. In the case of a person employed in a marketing or managerial position, working with little or no direct supervision and whose quality of performance cannot be immediately apparent, it may be reasonable for an employer to specify a probationary period measured in months. Circumstances will vary from case to case; the size, location and mode of operation of the employer being relevant factors, along with the personal characteristics and circumstances of the employee. The legislature has not prescribed the maximum extent of a reasonable period. It is not for me to do so. But I suspect that an employer will rarely be able to justify a period exceeding two or three months, in the case of an employee to whom Pt VIA now applies." With great respect, I can envisage a number of circumstances in which probation in excess of three months, and certainly up to six months, would be justifiable with employees to whom Part VIA applies. As the Chief Justice says, it depends on the circumstances. Here, the Applicant was in sole charge of the shop and responsible for the security of stock and cash. I consider the period of probation reasonable in the circumstances. It follows that the application under S170EA must be dismissed because the Applicant is excluded from the operation of subdivisions B and C of Division 3 of Part VIA of the Act. Having reached this conclusion, it is neither necessary nor appropriate for me to comment on the merits of the substantive application. The Chief Justice did so in Nicolson because the case had been fully argued before him and he took the opportunity to comment on S170DC and S170EE in a climate in which the legislation was still very new. His comments have been constantly cited and clearly have been of considerable assistance to judges and judicial registrars in this Court. I will merely endorse his comments on S170DC. I suggest that the Respondent's legal representatives would be well advised to explain the ramifications of S170DC and indeed all of Division 3 of Part VIA to their clients. UNPAID WAGES AND NOTICE OF TERMINATION There is one other matter I do propose to deal with. The Respondent initially, at termination, provided the Applicant with a cheque representing payment for her last week at work and for one week in lieu of notice. The day after the termination Mr Merakis undertook a stocktake. He concluded that about 250 items of stock to the value of $2,500 to $3,000 were unaccounted. He referred the matter to the police and on the advice of the police the cheque for two weeks wages was stopped. The Applicant was interviewed by police in respect of the stock discrepancies. No charges were laid against her and she appears to have taken civil action against the Respondent. Mr Williams led evidence of the stock discrepancies presumably on the basis that this information, although acquired after termination, presented a further valid ground for termination in the event that the Court found in favour of the Applicant in terms of jurisdiction. The issue of stock discrepancies as such is not a matter for this Court, given that the application under S170EA lacks jurisdiction and is dismissed. However, the evidence, presented by the Respondent on the missing items, relied on stock ledger entries (Exhibit R3), the bulk of which were made on 20 July 1995 before the Hampton shop opened and before the Applicant was employed. Mr Merakis was unable to confirm the existence of ledger entries at Richmond recording stock transferred to Hampton. It seems to the Court that the Respondent has real difficulty in establishing whether stock is unaccounted and, if so, what stock. If significant stock actually in the Hampton store on 20 July 1995, or delivered thereafter, is unaccounted at stocktake on 27 July, the day after termination, then the Applicant, as the sole operator of the shop for most of the 33 operating hours per week for over two months of the period 26 July to 16 October, might be expected to bear some responsibility for inadequate supervision during operating hours. That expectation would also depend on an absence of evidence of unauthorised removal of stock outside of operating hours. In this case, this Court is far from satisfied that the Respondent has or can establish that stock is missing, or if missing, how that occurred, and if missing, the Respondent cannot demonstrate that the stock was not removed prior to 26 July or out of hours between 26 July and 16 October. Even if the Respondent could establish unaccounted stock in the period 26 July to 16 October, there is no evidence so far presented which could attribute to the Applicant a responsibility for that stock. In such circumstances, it is appropriate to consider the equity of depriving and continuing to deprive the Applicant of wages for the last week of her employment and wages for a week in lieu of notice. Section 418 reads: "In every matter before it, the Court is to grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided." Section 430(1) reads: "So far as the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked." In my view, provided a remedy results from a legal or equitable claim arising in proceedings relating to a claim that the termination of an employee's employment was unlawful, a judicial registrar is empowered, pursuant to S418 and S430(1), to determine the matter of unpaid wages and lack of payment in lieu of notice. In that conclusion I draw comfort from the reasoning of Madgwick J in Coulson v Thomas Cook Ltd, IRCA 5 March 1996 (unreported) Decision No 66 of 1996, Matter WI-1224 of 1995, although that case is not in itself authority for the view I have expressed. I therefore order the Respondent to pay to the Applicant unpaid wages of one week in the sum of $347.82 gross and one week in lieu of notice ($347.82) a total of $695.64. The calculations are based on 33 hours a week at $10.54 an hour. I also order the Respondent to pay the Applicant a sum in lieu of any leave entitlements which remained outstanding at the date of termination, if there be any such entitlements outstanding. MINUTES OF ORDERS THE COURT ORDERS: 1. The application pursuant to S170EA is dismissed. 2. The Respondent to pay the Applicant unpaid wages of one week in the sum of $347.82 and one week in lieu of notice, $347.82, a total of $695.64. 3. The Respondent pay the Applicant a sum in lieu of any leave entitlements which remain outstanding as a result of the termination of employment on 16 October 1995. 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 13 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan. Associate:

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