SAPEVSKI v KATIES FASHIONS (AUSTRALIA) PROPRIETY LIMITED [1997] IRCA 219

DECISION NO:219/97 CATCHWORDS

INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - Consideration of the meaning of VALID REASON - A TERMINATION OF EMPLOYMENT which is unlawful by reason of being in breach of a State Act, cannot be justified and is not for a VALID REASON. INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - SEX DISCRIMINATION - The termination of the applicants' employment was a result of indirect discrimination on the basis of sex, and in breach of the Anti Discrimination Act 1997 (NSW). It was therefore not for a VALID REASON. INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - SEX DISCRIMINATION - STATUTORY INTERPRETATION - The prohibitions in the Workplace Relations Act, 1996, of terminations of employment for reason of an employee's sex prohibit terminations resulting from both direct and indirect DISCRIMINATION on the basis of the employee's sex - Consideration of the International Labour Organisation TERMINATION OF EMPLOYMENT CONVENTION. DISCRIMINATION LAW - Consideration of the relationship between the requirement in the Workplace Relations Act 1996 (C'mth) that there be a VALID REASON for a TERMINATION OF EMPLOYMENT and the prohibition in the Anti Discrimination Act (NSW) of TERMINATIONS OF EMPLOYMENT resulting from SEX DISCRIMINATION. INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - In the circumstances of this case, employees who signed a document, in which, in terms, they acknowledged their acceptance of a voluntary redundancy offer, were merely accepting the fait accompli that their employment was to end - The TERMINATION OF EMPLOYMENT in each case was, therefore, AT THE INITIATIVE OF THE EMPLOYER. INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - APPLICATIONS FOR LEAVE TO FILE APPLICATIONS OUT OF TIME - Decisions of Judicial Registrars are to be followed by the Australian Industrial Relations Commission - For the guidance of the Commission, consideration of the principles governing such applications - The Workplace Relations Act (1996) is beneficial legislation, and it should be easier for applicants under this legislation to obtain leave than under the Administrative Decisions (Judicial Review) Act - The applicants in this case were all migrant women, who spoke poor English, and has no or little understanding of their legal rights - The courts in this country must be assiduous not to visit upon persons in the position of the applicants an injustice because of understandable ignorance of their rights and misunderstanding and confusion about what to do. INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - COMPENSATION - Discussion of the degree to which a redundancy payment is to be taken into account when determining the quantum of compensation - DUTY TO MITIGATE LOSS - An applicant who worked in the family pizza business, and in respect of whom there was no concrete evidence to establish actual income, either earnt sufficient so as to have had no economic loss, or failed to take reasonable steps to mitigate her loss - In any event, it was not appropriate to make, in her case, an order for compensation. Administrative Decisions (Judicial Review) Act 1975, s.11 Anti-Discrimination Act (1977) NSW, ss:25(1)(a), 25(1(b), 25(2) Evidence Act 1995: s.144(1)(b) Industrial Relations and other Legislation Amendment Act (Act No. 168 of 1995), Schedule 2, Items 5 and 14 Workplace Relations Act 1996, ss: 3(g) 170CA, 170CB, 170DE(1), 170DF, 170EA(3), 170EDA(2), 170EHA, 376(4), Schedule 10 International Labour Organisation Convention Concerning Discrimination in Respect of Employment and Occupation International Labour Organisation Convention Concerning Termination of Employment at the Initiative of the Employer Report III (Part 4B) of the Committee of Experts, on the Application of Conventions and Recommendations, to the 83rd session of the International Labour Conference in 1996 (International Labour Office, Geneva, 1996) 1988 Rreport of the Committee of Experts to the 75th Session of the International Labour Conference Andersen v Umbakumba Community Council (1994) 126 ALR 121 APESMA v David Graphics Pty Ltd, Industrial Relations Court of Australia, Wilcox CJ, 12 July 1995, unreported Australian Iron & Steel Propriety Ltd v Banovic & others (1987) 168 CLR 165 Bogg v ICI Australia Pty Ltd, Industrial Relations Court of Australia, Patch JR, 23 June 1997 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Burazin v Blacktown City Guardian, Industrial Relations Court of Australia, Full Court, 13 December 1996, unreported Carrigan v Darwin City Council, Industrial Relations Court of Australia, von Doussa J, 20 March 1997, unreported Coker-Godson v National Dairies Ltd, Industrial Relations Court of Australia, Keely J, 22 August 1994, unreported Coyne v Ansett Transport Industries, Industrial Relations Court of Australia, Full Court, 24 September 1996 Davis v Portseal Pty Ltd, Industrial Relations Court of Australia, Full Court, 10 April 1997, unreported Eggleton v Kingsgrove Medical Centre Pty Ltd, Industrial Relations Court of Australia, Patch JR, 5 March 1997, unreported Food Preservers Union of Australia v Wattie Pict Ltd (1985) 172 CAR 227 Fryar v System Services Pty Ltd, Industrial Relations Court of Australia, von Doussa J, 10 May 1996, unreported Gerard Westen v Union des Assurances de Paris, Industrial Relations Court of Australia, Madgwick J, 17 December 1996, unreported Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Jones v Dunkel (1959) 101 CLR 298 Kenefick v Australian Submarine Corporation Pty Ltd (No 2) 65 IR 366 Kerr v Jeroma Propriety Ltd, Industrial Relations Court of Australia, Marshall J, 7 October 1996, unreported Kidd v D.R.G. (U.K) Ltd [1985] ICR 405 Matthews v Coles Myer Ltd (1993) 47 IR 229 May v Lilyvale Hotel Pty Ltd 68 IR 112 Mohazab v Dick Smith Electronics Pty Ltd, (No 2) (1995) 62 IR 200 Nelson v Scholle Industries (1995) 64 IR 9 Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 Shipping Corp of India Ltd v Gamlen Chemical Co (A'Asia)Pty Ltd (1980) 147 CLR 142 Sinclair v Anthony Smith and Associates Pty Ltd, Industrial Relations Court of Australia, von Doussa J, 1 December 1995 Termination Change and Redundancy Case (1984) 8 IR 34 Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412 SAPEVSKI AND OTHERS v KATIES FASHIONS (AUSTRALIA) PROPRIETY LIMITED NI 3769, 3774, 3778, 3780, 3783, 3784, 3785 & 3787