Mapolar v Donna Rosa Foods [1996] IRCA 499

DECISION NO: 499/96 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1696 of 1996 B E T W E E N: Hakan MAPOLAR Applicant A N D DONNA ROSA FOODS Respondent REASONS FOR DECISION 14 October 1996 PARKINSON JR This is a decision in relation to an application made pursuant to Section 170EA of the Industrial Relations Act 1988. ("the Act") The applicant was employed by the respondent as a bakers assistant on 2 January, 1996 and the employment terminated on 11 April, 1996. The respondent's business is the packaging and supply of pizza breads and other specialty bread products to retail outlets. There was, between the applicant and the respondent, a written employment agreement as to some of the terms and conditions of the employment. The applicant's duties were to bake and package the breads and to perform general stores duties. The applicant's wages were $12.00 per hour for 30 hours work per week. He was employed on a part-time basis. The respondent received a subsidy from the Commonwealth for wages paid to the applicant. This subsidy continued for 20 weeks of the employment and ceased to operate on 31 May 1996. In the wage subsidy agreement (Exhibit R5), the applicant's status as a part time worker was confirmed, together with his hourly rate of pay and number of hours of work per week. This document was certified on behalf of the respondent by Mr Milikins, the production manager of the respondent. It was a term of the written employment agreement (Exhibit A1), that the applicant would work reasonable overtime as required by the employer. Hours of work provided for in the agreement were "deemed to be ordinary hours". No additional amount was payable for any overtime hours which the applicant was required to work. The evidence was that the applicant worked overtime on the three days prior to the date of the termination of his employment. On 11 April 1996 the applicant was approached by Mr Milikins at approximately 11.30am and informed that he was required to work overtime on that day. The applicant protested advising the respondent that he had to return the family car to his parents. The applicant's evidence was that there was a specific need to do so on that day as his father had a dental appointment and needed to drive the car to attend. Mr Milikins denies that he was informed of this fact, although he concedes that he was informed that the applicant had to take the car home at the end of his shift. I prefer the evidence of the applicant in this case. I found him to be a forthright and frank witness. I found the evidence of Mr Milikins and Mr D'Alberto unsatisfactory. Mr Milikins was an evasive witness who was reluctant to assist the Court with information. Aspects of both their accounts of an alleged assault by the applicant after the termination of the employment were inconsistent and lead me to form the view that their evidence is unreliable and that the applicant's evidence is to be preferred.