Patterson v Excel Enterprises Pty Ltd [1997] IRCA 231

DECISION NO:231/97 CATCHWORDS INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - VALID REASON - whether OPERATIONAL REQUIREMENT - consideration of applicant's permanent status where non-permanent and casual staff existed - whether applicant had other skills and experience - whether additional employees engaged after the termination of employment - whether any discussions had taken place regarding redundancy - PROHIBITED REASON - whether reason for termination union activity - ASSOCIATED JURISDICTION - claim for recovery of debt arising from the improper classification of applicant - whether engaged in defined duties as described by the AWARD - REMEDY - whether reinstatement impracticable where applicant has obtained alternative employment - COMPENSATION - consideration of the likely period the employment would have continued but for the unlawful act of employer - DAMAGES - whether failure to accord applicant NOTICE OF TERMINATION - Workplace Relations Act 1996 ss170DB, 170DE, 170DF, 170EA, 170EDA, 170EE Johns v Gunn Limited (1995) 60 IR 258 PATTERSON -V- EXCEL ENTERPRISES PTY LTD VI 2626 of 1996 Before : PARKINSON JR Place : MELBOURNE Date : 3 July 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2626 of 1996 B E T W E E N: Trevor PATTERSON Applicant A N D EXCEL ENTERPRISES PTY LTD Respondent MINUTES OF ORDERS 3 July 1997 PARKINSON JR THE COURT ORDERS THAT: 1. Pursuant to Subsection 170EE(3) of the Workplace Relations Act, 1996 the respondent pay to the applicant compensation in the sum of $4884.00. 2. Pursuant to Subsection 170EE(5) of the Workplace Relations Act, 1996, the respondent pay to the applicant damages in the sum of $814.00. 3. Payment in accordance with Orders 1 and 2 herein to be made within 21 days of the date of this Order. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2626 of 1996 B E T W E E N: Trevor PATTERSON Applicant A N D EXCEL ENTERPRISES PTY LTD Respondent REASONS FOR DECISION 3 July 1997 PARKINSON JR This is a decision in relation to an application made pursuant to Section 170EA of the Workplace Relations Act 1996.('the Act') The applicant, who is 57 years old, was employed by the respondent between November 1993 and August 1996. He was initially employed by the respondent as a piece worker receiving $1.00 for each chair completed and working approximately 20 hours per week. In January 1994 his employment became permanent, with the position being funded by a 16 week wage subsidy from the Commonwealth Department of Education and Training in the sum of $200.00 per week. The wage subsidy ran from 24 January, 1994 to 13 May, 1994. The applicant was principally engaged in the assembly of chairs. There is some dispute in this proceedings as to the correct classification to be attributed to the applicant and the relevant salary rate to which he was entitled during the course of the employment. The applicant, in addition to remedies under Section 170EE of the Act, also seeks to recover monies which he alleges were underpaid wages and recoverable as a debt.