DECISION NO:92/97 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - whether termination at the initiative of the respondents Workplace Relations Act 1996 Employee Relations Act (Vic) 1992 BRADLEY JAMES FULLER - v - DAVID BRUCE YATES AND ALAN EDWARD WALDRON trading as BEAUFORT FIREWOOD SUPPLIES No. VI 2386 of 1996 Before: Judicial Registrar Millane Place: Melbourne (heard in Ballarat) Date: 27 March 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2386 of 1996 B E T W E E N : BRADLEY JAMES FULLER Applicant A N D DAVID BRUCE YATES AND ALAN EDWARD WALDRON trading as BEAUFORT FIREWOOD SUPPLIES Respondents MINUTES OF ORDERS Judicial Registrar Millane 27 March 1997 THE COURT DECLARES THAT: 1. On 4 July 1996 the respondents terminated the applicant's employment in contravention of the provisions of the Workplace Relations Act 1996. AND THE COURT FURTHER ORDERS THAT: 2. Within 21 days of the date of the making of these orders the respondents pay to the applicant the sum of $2,074 by way of compensation. 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 2386 of 1996 B E T W E E N : BRADLEY JAMES FULLER Applicant A N D DAVID BRUCE YATES AND ALAN EDWARD WALDRON trading as BEAUFORT FIREWOOD SUPPLIES Respondents Before: Judicial Registrar Millane Place: Melbourne (heard in Ballarat) Date: 27 March 1997 REASONS FOR JUDGMENT By an application filed on 16 August 1996 the applicant seeks compensation from the respondents alleging termination of his employment in contravention of the Workplace Relations Act 1996 (the Act). Although the application does not indicate the date on which the employment ceased, it was common ground that the employment ended on or about 4 July 1996. Neither party was legally represented at hearing. David Bruce Yates (Yates), a proprietor of the registered business name, Beaufort Firewood Supplies, represented the respondents. The defence raised by the respondents was that the applicant resigned or abandoned his employment. As a consequence of the defence raised the applicant was required to establish on the balance of probabilities that on or about 4 July 1996 there was a termination of his employment at the initiative of the respondents. The applicant gave evidence and told the Court that as at the date of hearing he was employed as a shed hand in seasonal employment. It was common ground that on or about 4 February 1996 the applicant had a discussion and interview with Yates, the result of which was that there was an agreement to engage the applicant in the respondents' business to cut, stack and distribute firewood. That agreement contemplated that initially the applicant would be employed full time for no less than six months pursuant to a wage subsidy agreement for a thirty-eight hour week from 5 February 1996. However, once the business improved the respondents also agreed to pay the applicant at a higher rate of $600 per week, leaving him with $500 net pay less $100 taken out for tax. The additional agreement is contained in an undated hand written document signed by Yates (see Exhibit A1). It was my understanding of the evidence that both parties contemplated long term employment beyond any wage subsidy agreement period. The applicant was in attendance when the wage subsidy agreement was entered into and he tendered to the Court the employee's copy of that agreement (see Exhibit A2). It was agreed by both parties that on 5 February 1996 the applicant commenced his employment and, in accordance with the wages subsidy agreement, he was required to work for a thirty-eight hour week and was paid at the rate of $358 gross per week. The terms and conditions upon which the wage subsidy is paid clearly provide for the employer to deduct PAYE tax from the payments made to the employee during the period of the wage subsidy agreement. At hearing the applicant alleges that he worked for the respondents for some five months during which time the respondents paid him $350 per week. He assumed then that the necessary tax payments were being paid by the respondents. He was paid by cheque with no pay slip given to him to properly inform him about how the payments were calculated. It was his uncontested evidence that in or about June 1996 he spoke to Yates at Stawell on which occasion Yates approached him and told him that the respondents could not afford to pay the tax required and that the applicant would have to pay his own tax of $58 per week. On the same day when they returned to Ararat the applicant's uncontested evidence was that he told Yates he could not afford to work for the lesser amount. The applicant continued working for some two to three weeks until approximately 4 July 1996 when he queried Yates about the failure to pay the full sum of $358 per week. There is a dispute between the two men as to what was said on that date and on the following Sunday and Monday. It was alleged by the applicant that when he queried the $8 shortfall, Yates gave him seven days' notice and, in effect, ended his employment. Yates denied terminating the applicant's employment on 4 July 1996 but did tell the Court that on the following Sunday he gave the applicant the opportunity to work another seven days because the respondents were required by law to give notice. Furthermore, he said that on that occasion he offered the applicant his job back. It was Yates' contention that the applicant ceased his employment because of lack of money and the applicant's poor financial position. Yates also told the Court that on the Sunday the applicant refused to return to work indicating that he had another job to go to. The applicant conceded that he declined to return to work but only because of the problems over the payments being made to him. He claimed that he only had a job interview the following week and that interview led to some short term casual employment three weeks after the termination of his employment and that employment was for a period of only three weeks. Both men agreed that during the week following the alleged termination the applicant attended on Yates and was paid the outstanding sum of $176; namely, the $8 per week shortfall for each week worked. FINDINGS Often where both parties are unrepresented it is difficult for the Court to obtain a clear view of the sequence of events which lead the parties to litigation. This is a case where the witnesses were unclear about the events leading up to 4 July 1996. Nevertheless, I am satisfied that as described above there was a general employment agreement between the parties on 4 February 1996. By reason of that agreement and the wages subsidy agreement, the applicant was under the impression that he was receiving a net sum each week of $350. Obviously the work subsidy agreement provided for the respondents to deduct tax payments but such an agreement did not preclude the respondents from paying more to the applicant in accordance with the separate agreement entered with Yates. What is apparent is that the respondents failed to provide any proper record to the applicant in the form of detailed pay slips as was their legal obligation pursuant to the former Employee Relations Act (Vic) 1992 and failed to pay even the gross amount provided for by the wages subsidy agreement in circumstances where Yates says that he was not deducting PAYE tax payments when he was obliged to do so by the wages subsidy agreement. The abovementioned conduct, as well as the matters referred to by Yates in his evidence, suggest to me that it is more likely than not that the actions of the respondent in attempting to make the employee deduct his own tax and Yates' responses to the applicant's queries on or about 4 July 1996, initiated and brought about the termination of the contract of employment. There was no claim properly before the Court in its accrued jurisdiction in relation to any shortfall in the contractual sums agreed to be paid. Neither party sought reinstatement and, if anything, the focus of the case was on the unpaid tax and the compensation the applicant might otherwise seek for the unlawful termination of his employment. My finding is that on or about 4 July 1996 the applicant's employment was terminated in contravention of the Act. He obtained casual employment after three weeks. That employment ceased within three weeks of its commencement and he now works in seasonal employment, which means that he does not have a full time position. In assessing compensation I have taken into account both the loss of three weeks' remuneration at no less than $358 gross per week as well as the loss of the security of a full time position. Accordingly, I have calculated compensation on the basis of three weeks' lost income at $1,074 gross and I have allowed a further sum of $1,000 for the loss of secure employment in circumstances where Yates made it clear to the Court that the respondents regarded the applicant as a good worker and wanted him to continue his employment. MINUTES OF ORDERS THE COURT DECLARES THAT: 1. On 4 July 1996 the respondents terminated the applicant's employment in contravention of the provisions of the Workplace Relations Act 1996. AND THE COURT FURTHER ORDERS THAT: 2. Within 21 days of the date of the making of these orders the respondents pay to the applicant the sum of $2,074 by way of compensation. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 27 March 1997 Applicant in person. Respondent in person. Mr D. Yates Date of hearing: 24 March 1997 Date of judgment: 27 March 1997