Amor v Cook [1996] IRCA 620

DECISION NO:620/96 C A T C H W O R D S INDUSTRIAL LAW - termination of employment - operational requirements - valid reason - no underpayment of wages Workplace Relations Act 1996 ss.170DE, 170EA, 179 CASES:

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

Kenefick and Others v Australian Submarine Corporation Pty Ltd (No 1) (1995) 62 IR 107

State of Victoria v the Commonwealth of Australia (1996) 138 ALR 129

Byrne v Australian Airlines Pty Ltd (1995) 131 ALR 422

Jones v Minister for Minerals and Energy (1995) 60 IR 304

Quality Bakers v Goulding (1995) (60 IR 327).

AMOR & ALHMWU -v- NARELLE AND DAVID COOK

trading as RIVERSIDE GARDENS MOTOR INN No. VI-1362 of 1996 Before: Ryan JR Place: Melbourne Date: 23 December 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1362 of 1996 B E T W E E N : VIRGINIA AMOR & ALHMWU Applicant AND NARELLE AND DAVID COOK trading as RIVERSIDE GARDENS MOTOR INN Respondent MINUTES OF ORDERS Judicial Registrar Ryan 23 December 1996 THE COURT ORDERS: 1. The Application under section 170EA is dismissed.

2. The Application under section 179 is dismissed. 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-1362 and VI-2201 of 1996 B E T W E E N : VIRGINIA AMOR & ALHMWU Applicant AND NARELLE AND DAVID COOK trading as RIVERSIDE GARDENS MOTOR INN Respondent Before: Ryan JR Place: Melbourne Date: 23 December 1996 REASONS FOR JUDGMENT CLAIMS OF UNLAWFUL TERMINATION OF EMPLOYMENT AND UNDERPAYMENT OF WAGES

Any statutory references in this judgment are to the Workplace Relations Act 1996. On 17 January 1996 an officer of ALHMWU (the Union) filed a claim of unlawful termination of employment on behalf of Virginia Amor (s170EA). The application indicated that Ms Amor had been employed by the Respondents in the Riverside Gardens Motor Inn from 17 May 1995 to 8 January 1996 and that she had been provided with a written notice of termination and did not seek reinstatement. On 22 January the Respondents filed a Notice of Appearance. Paragraph 15 of the notice described the reason for termination as : "a downturn in business has meant we cannot afford to pay a receptionist. Our occupied room numbers compared with 1994 have decreased by 9% approximately." On 2 April the Australian Industrial Relations Commission referred the matter to the Court as it had not been settled by conciliation and the parties had not elected to have the matter dealt with by consent arbitration. At a Directions Hearing on 30 April the matter was listed for a one day trial on 10 September with the parties directed to provide mutual discovery of all relevant documents not less than 14 days prior to the hearing of the matter. On 29 August the Union filed an application made by Ms Amor in which she claimed: 1. $212.56 being underpayment of annual leave under the Motels, Accommodation, Resorts Award 1992 (s179) 2. $2,908.11 being underpayment of wages under the Award (s179) 3. interest up to judgment (s179A) The application was supported by a statement of claim and an affidavit and the District Registrar, or an officer on his behalf, appears to have set the claims under S179 and s179A for hearing at 10:00 am on 10 September with the application under s170EA. This was a reasonable course to adopt and Counsel (Mr Tee for the Applicant and Mr Fleming for the Respondents) agreed to that course when the application under s170EA came on for hearing. THE CLAIM OF UNLAWFUL TERMINATION OF EMPLOYMENT Having heard the evidence of Mrs and Mr Cook and Ms Amor I am satisfied that: (i) the employment of Ms Amor was terminated by the Respondents Narelle and David Cook as employers on 8 January 1996