Holmes v A1 Professional Cleaning Services [1996] IRCA 632

DECISION NO:632/96 C A T C H W O R D S INDUSTRIAL LAW - termination of employment - whether employment terminated by employer or employee - Held abandonment of employment - the legitimate refusal of an employer to make an unauthorised payment demanded by an employee does not constitute an act which results in a termination of employment which attracts the jurisdiction of Division 3 of Part VIA of the Workplace Relations Act 1996 Workplace Relations Act 1996 ss170CB, 170DE, 170EA CASES:

Mohazzab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154

Santos v SIDY's Ice Cream (unreported, IRCA, Millane JR, 10 May 1996)

WILLIAM HOLMES -v- A1 PROFESSIONAL CLEANING SERVICES No. VI-1064 of 1996 Before: Ryan JR Place: Melbourne Date: 24 December 1996

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1064 of 1996 B E T W E E N : WILLIAM HOLMES Applicant AND A1 PROFESSIONAL CLEANING SERVICES Respondent MINUTES OF ORDERS Judicial Registrar Ryan 24 December 1996 THE COURT ORDERS: 1. That the application be 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-1064 of 1996 B E T W E E N : WILLIAM HOLMES Applicant AND A1 PROFESSIONAL CLEANING SERVICES Respondent Before: Ryan JR Place: Melbourne Date: 24 December 1996 REASONS FOR JUDGMENT This claim of unlawful termination of employment revolves around a dispute as to whether the Applicant was entitled to payment in lieu of "leave" which had not accrued. The Applicant asserts that Mr Arthur Karras, then Cleaning Services Supervisor with the Respondent, had agreed to provide him with payment in lieu of leave which had not accrued and that when he persisted with his attempts to have the agreement honoured, Mr Karras unlawfully terminated his employment. Mr Karras denies that there was any agreement to pay for non existent leave. Mr Karras no longer works for the Respondent but he was the only person to give evidence for the employer. The Applicant was the only person to give evidence on his own behalf. Both parties were represented by counsel. The Applicant's position is that there was an unlawful termination of employment and he now seeks reinstatement although when he lodged his application he sought compensation only. The Respondent's position is that the Applicant abandoned the employment. It is not necessary to go into detail about the employment relationship except to the extent that the developing dispute between the Applicant and Mr Karras reflects on their credibility. The Court has to determine which version of events is the more probable. The onus lies with the Applicant to establish that there was an act or initiative of the Respondent as employer which led to the unlawful termination of the employment. I have concluded that the Applicant has failed to discharge this onus and that the application must be dismissed. The Applicant was employed under a Job Start Wage Subsidy Agreement cleaning portable buildings. He was employed from about 16 August 1995 to 4 January 1996. He admitted in cross-examination that he had received holiday pay in advance in December 1995. He also admitted that the Wageline organisation which he consulted advised him that he was only entitled to 7 days leave after his short employment but that Mr Karras had "promised me 14 days". He also admitted that Mr Karras had confirmed that he could only be paid for accrued leave but that he nevertheless wanted payment and that he believed that he was entitled to the payment because of their agreement. Both men agree that over the Christmas break between 22 December and 3 January there were several telephone discussions in which the Applicant persisted with his claim for payment in lieu of unaccrued leave. The dispute came to a head on Thursday 4 January 1996. Mr Karras was delayed in traffic on the Westgate Bridge. The Applicant contacted him on his car telephone and demanded his wages (and almost certainly repeated his demand for the payment for the unaccrued leave). Mr Karras agreed to travel to a licensed club in Frankston to pay wages due to the Applicant who indicated that he was certainly not willing to remain at the work site in Cheltenham until Mr Karras arrived. The Applicant claims that: · Mr Karras arrived at the club and threw the wages across a table