PARSONS & CFMEU -v- WESFI WOODWORKS PTY LTD [1997] IRCA 25

DECISION NO:25/97 C A T C H W O R D S INDUSTRIAL LAW - termination of employment, termination based on assumption that a proposal to establish a competing business to outsource distribution was inconsistent with the Applicant's obligations as an employee - held the proposal as a proposal was not inconsistent with the employee's obligations - no valid reason for termination Workplace Relations Act 1996 ss.170DC, 170DE, 170EA, 170EE CASES: Selvachandran and Peteron Plastics Pty Ltd (1995) 62 IR 271

Kerr and Jaroma Pty Ltd (unreported, IRCA, Marshall J, 7 October 1996)

Nettlefold and Kym Smoker Pty Ltd (unreported, IRCA, Lee J, 4 October 1996)

Nicolson and Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 205 and 126 ALR 233

Dwyer and Bill McLean's Hi-Fi, IRCA (unreported, IRCA, Tomlinson JR, 14 November 1995)

Turner and Carpet Call (Vic) Pty Ltd, IRCA, (unreported, IRCA, Parkinson JR, 22 December 1994)

Blyth Chemicals and Bushell (1933) 49 CLR 66 at 81 PARSONS & CFMEU -v- WESFI WOODWORKS PTY LTD No. VI-2372 of 1996 Before: Ryan JR Place: Melbourne Date: 29 January 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-2372 of 1996 B E T W E E N : RICHARD PARSONS & CFMEU Applicant AND WESFI WOODWORKS PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Ryan 7 February 1997 Taking account of gross taxable income of $33,236 for financial year ending 30 June 1996, I propose to order compensation equivalent to two months at that rate, i.e. $5,540. This takes account of the period after termination when the Applicant was unemployed. I also propose to order additional compensation to take account of the fact that the Applicant receives $173 less per week gross at present in his current employment. In that respect I consider compensation for that loss for six months as adequate and appropriate additional compensation, i.e. $4,498. I therefore propose to order compensation in the sum of $10,038. THE COURT ORDERS: 1. The Respondent pay to the Applicant within 21 days compensation in the sum of $10,038. 2. Any payment to the Australian Taxation Office within that period of 21 days in respect of and relating to the payment of the $10,038 compensation is pro tanto satisfaction of the order in 1 above. 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-2372 of 1996 B E T W E E N : RICHARD PARSONS & CFMEU Applicant AND WESFI WOODWORKS PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Ryan 29 January 1997 THE COURT ORDERS: 1. That the Respondent pay compensation to the Applicant, the sum of the compensation to be determined after consideration of satisfactory evidence of the Applicant's post termination earnings. 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-2372 of 1996 B E T W E E N : RICHARD PARSONS & CFMEU Applicant AND WESFI WOODWORKS PTY LTD Respondent Before: Ryan JR Place: Melbourne Date: 29 January 1997 REASONS FOR JUDGMENT (Delivered ex tempore) This is an application for relief in a claim of unlawful termination of employment. References to the Applicant are to Richard Parsons, a former employee of the Respondent WESFI Woodworks Pty Ltd. If it is necessary to refer to the second Applicant, CFMEU, I shall refer to that Applicant as "the Union". It is not necessary to go into the detail of the evidence heard yesterday. Extensive documentation of that evidence would delay delivery of a decision In my view the benefits to all parties of an ex tempore decision now outweigh a lengthier decision delivered later. This is in many ways an unfortunate situation in which an employer considered it necessary to terminate an employee who was acknowledged to be in all ways excellent at his work. The Applicant claimed that 1. he was unlawfully terminated from his employment as a sales clerk 2. the Respondent, his employer, did not have a valid reason and failed to establish a valid reason for the termination of employment pursuant to S170DE(1) of the Workplace Relations Act 1996 3. the Respondent, as employer, did not give the Applicant, as employee, an opportunity to defend himself against certain allegations made against him 4. the allegations were that