Birch v Golden Editions Pty Ltd [1996] IRCA 467

DECISION NO: 467/96 C A T C H W O R D S INDUSTRIAL LAW - termination of employment - probation - notice - no opportunity to respond - no valid reason Industrial Relations Act 1988 ss.170CC, DB, DC, DE, EA and EE Industrial Relations Regulations - Regulation 30B CASES: Selvachandran v Peteron Plastics Pty Limited (1995) 62 IR 371 at 373. Nicholson v Heaven and Earth Gallery (1994) 1 IRCR 199 DAVID BIRCH -v- GOLDEN EDITIONS PTY LTD No. VI-6373 of 1995 Before: Ryan JR Place: Melbourne Date: 23 September 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-6373 of 1995 B E T W E E N : DAVID BIRCH Applicant AND GOLDEN EDITIONS PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Ryan 23 September 1996 THE COURT ORDERS: 1. I order that the Respondent pay to the Applicant within 21 days compensation in the sum of $3810. 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-6373 of 1995 B E T W E E N : DAVID BIRCH Applicant AND GOLDEN EDITIONS PTY LTD Respondent Before: Ryan JR Place: Melbourne Date: 23 September 1996 REASONS FOR JUDGMENT Delivered Ex Tempore The Applicant claims unlawful termination of employment and seeks compensation. Mr McDonald of McDonald and Charman, Solicitors, appeared today on his behalf. The Respondent has described itself as a wholesaler and supplier of audio and video products supplying major music and retail chains and less traditional retailers such as newsagents, gift shops, service stations, convenience stores and the automotive after market industry. The National Sales Manager, Mr Watson, appeared for the Respondent today. The Applicant and Mr Watson gave evidence. The Applicant asserts that the Respondent has failed to demonstrate, or establish a valid reason for the termination of the Applicant on 15 December 1995, 3 months and 5 days after the employment began on 11 September 1995. The Applicant does not seek reinstatement. I have no doubt it would be impracticable. Mr McDonald was quite specific. He seeks compensation for the Applicant equivalent to the payment of his salary for the period 16 December 1995 to his re-employment elsewhere on 19 December 1995. Mr Watson seems to rely on a claim that the application lacks jurisdiction in that the Applicant was an employee excluded from the operation of sub divisions B, C, D and E, a Division 3 of Part VIA of the Act, being an employee serving a period of probation or a qualifying period of employment, the duration of such period having been determined in advance, and being reasonable, having regard to the nature and circumstances of the employment. In other words, although imprecisely and generally expressed, Mr Watson relies on Regulation 30B(1)(c). I reject that proposition. The claim is within jurisdiction. In my view a period of probation was determined in advance, and was reasonable. To that extent, I disagree with Mr McDonald, but, at the time of termination, the Applicant was no longer on probation. The period had expired on 10 December 1995 and had not been extended. The relevant parts of the offer and contract of employment appear in Exhibit A1 and read as follows (Exhibit A1 being a letter to the Applicant from Mr Hoghton Hughes, the managing director of the Respondent company) - I am simply going to quote those parts that are relevant: "This letter confirms your appointment as our Victorian Country Sales Representative effective, from Monday 11 September. As discussed, you will be responsible for both audio and video sales throughout the Victorian country area. Your itinerary is enclosed. Your annual salary (payable monthly) will be $33,000, and you will also be eligible for our various bonus incentives, as outlined per the enclosures. As your salary, commissions and expenses will be deposited direct into your bank account, please advise your account number and details as soon as possible. Also, please remember your salary incorporates a $1,500 Telephone Allowance. You will report direct to our Victorian Manager, Lynne Watson. Important! Please complete the Employment Declaration form (enclosed) with your Tax Number and return it to Graham Broughton (in Sydney) immediately. Copies of recent memos plus an outline of expense account procedures, vehicle accident formalities, etc. are enclosed. Business cards have been ordered and will be sent down to you as soon as they are printed. One final and important point: Due to our problem in getting into K-Mart, it is essential that you exploit all potential outlets for our product (e.g. truckstops, roadhouses, video stores, newsagents, etc.). As agreed, this arrangement is for a 3 month trial (or settling in) period, with either party being free to terminate the relationship during, or at the end of, that period. Following this period, and pursuant to the terms of your salary arrangement, one month's written notice will be required for any resignation. " No evidence has been given of a valid reason for termination being a sound defensible and well-founded reason as outlined by Northrop J in Selvachandran v Peteron Plastics Pty Limited (1995) 62 IR 371 at 373. I need not go into the very little detail that exists of the termination meeting at the Rockmans Regency Hotel between 11 am and 11.20 am on 15 December 1995. Suffice to say that the Applicant and Mr Watson gave reasonably consistent evidence of the meeting. It is crystal clear that Mr Watson terminated the Applicant without warning, counselling or notice on that day and did so at the direction of the managing director of the Respondent company, Mr Hoghton Hughes. I might add that while Mr Hughes had written to all sales representatives, including the Applicant, on 5 December (Exhibit A9), stating that "as expected, all of you qualify for the 1% Incentive Bonus", he had earlier on 21 November written to Mr Watson as follows, and I am referring here to Exhibit A10: "ATTENTION Andrew Watson.