INDUSTRIAL RELATIONS COURT OF AUSTRALIA INDUSTRIAL LAW - UNLAWFUL TERMINATION - CASUAL EMPLOYMENT - CONDUCT AND PERFORMANCE - REINSTATEMENT - COMPENSATION - Costs - Principles for award of costs against non-parties - Costs against Counsel - Independence of counsel or legal adviser - Principles for award of costs against counsel - Adjournment- counsel too ill to adequately represent party adjournment normally granted if requested - approach to witness on behalf of respondent - whether corrupt conduct - whether admission by conduct in proceedings - allegations of cash payments to employee - duty of court to protect the revenue of the commonwealth and state authorities Evidence Act, 1995, s 60 Workplace Relations Act, 1996 (formerly Industrial Relations Act, 1988) ss170DB, 170DC, 170DE Wilson v IPC Corporation (Australia) Pty Ltd (Moore J, 8 December 1995, (unreported) IRCA decision No.653/95); Nicholson v Heaven & Earth Galleries (1994) 1 IRCR 199; Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371; Re Equiticorp Finance Ltd; ex-parte Brock (No.2) (1992) 27 NSWLR 391; Reed v. Blue Line Cruises (Moore J, 26 November 1996, unreported IRCA decsion No. 571/96); Burazin v The Blacktown City Guardian (Madgwick J, 15 December 1995, unreported IRCA decision No. 606/96); Wilson -v- IPC Corporation (Australia) Pty Ltd (Moore J, 8 December 1995, unreported IRCA decision No.653/95); Canceri v Taylor [1994] 1 IRCR 120; Nielsen v Loyal Orange Trust (North J, 11 September 1997, unreported IRCA decision No. 267/97); Daniel v Real Estate Network Pty Ltd (1996) 71 IR 437. MARLIN v V. SAHADE HOLDINGS PTY LTD T/As CRYSTAL CARWASH CAFE NI 4491 of 1995 McILWAINE JR SYDNEY 15 JANUARY 1998 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) NI 4491 of 1995 ) NSW DISTRICT REGISTRY ) BETWEEN: Charles MARLIN Applicant AND: V. SAHADE HOLDINGS PTY LTD T/As CRYSTAL CARWASH CAFE Respondent JUDICIAL McILWAINE REGISTRAR: PLACE: SYDNEY DATED: 15 JANUARY 1998 MINUTES OF ORDER THE COURT DECLARES THAT: 1. The respondent has contravened section 170 DB of the Act. 2. The respondent has contravened section 170DE(1) of the Act. 3. The respondent has contravened section 170 DC of the Act. 4. The respondent has under paid wages of the applicant. 5. It is impractical to reinstate the applicant in any position with the respondent. THE COURT ORDERS THAT: 6. The respondent to pay to the applicant within 7 days of today the amount of $383.25. 7. Any sum paid within 7 days of today to the Australian Taxation Office, on account of the applicant with respect to the sum ordered in paragraph 6 shall be pro tanto satisfaction of the obligation of the respondent under order 6. 8. The respondent to pay to the applicant within 14 days of today the amount of $1841.40 being for under paid wages. 9. The respondent to pay to the applicant within 14 days of today the amount $5000 as compensation pursuant to the Act. 10. Any sum paid within 14 days of today to the Australian Taxation Office, on account of the applicant with respect to the sums ordered in paragraphs 8 & 9 shall be pro tanto satisfaction of the obligation of the respondent under orders 8 & 9. AND THE COURT DIRECTS: 11. No order as to costs. 12. No order in respect of monies owed to Mr V. Sahade. 13. Application for stay refused. 14. The District Registrar of the Federal Court of Australia, NSW District Registry, to forward to the Commonwealth Attorney-General a copy of these reasons for judgment and the evidence of the witnesses and to make available, as may be required, the full transcript of the proceeding and the exhibits for inspection by any officer authorised to inspect by the Commonwealth Attorney-General, the Commissioner of Taxation or by the Workcover Authority of New South Wales. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) NI 4491 of 1995 ) NSW DISTRICT REGISTRY ) BETWEEN: Charles MARLIN Applicant AND: V. SAHADE HOLDINGS PTY LTD T/As CRYSTAL CARWASH CAFE Respondent JUDICIAL McILWAINE REGISTRAR: PLACE: SYDNEY DATED: 15 JANUARY 1998 REASONS FOR JUDGMENT APPLICATION This is an application by Charles Marlin claiming unlawful termination of his employment by his former employer under Division 3 Part VIA of the Industrial Relations Act 1988 now known as the Workplace Relations. Act 1996 ("the Act"). The respondent, according to a notice of employer's appearance signed by Mr Victor Sahade, Accountant, dated 27 November 1995 is A.V. Sahade Holdings Pty Limited trading as Crystal Carwash Cafe. Although the 1996 group certificate which was prepared for the applicant (Exhibit "E") and signed by Mr Victor Sahade records his employer as Crystal Carwash Pty LTD. Whereas the 1995 Group Certificate signed by Mr Anthony Sahade records the employer as A.V. Sahade Holdings Pty Ltd (Exhibit 8). An envelope, (Exhibit "D"), in which the 1996 Group Certificate was said to be posted to the applicant has an endorsement of a return address as Crystal Carwash Cafe Pty Ltd (ACN 060916770.) 58 Gregory St, Coogee NSW 2034. The business operates from a site at the intersection of Anzac Parade & Stuart St, Kingsford. In his application, the applicant records the work performed for his former employer as "washing cars" and claims to have started work with the respondent in April 1995 with the last day he worked for his former employer being 6 November 1995. The remedy sought by the applicant in his claim is compensation for loss of employment. The respondent maintains that the last day the applicant worked was 28 October 1995. There is no allegation of any written notice of termination being given to the applicant and therefore no question arises as to the claim being out of time. The application was filed on 20 November 1995 in the District Registry of the Court. I have a certificate issued by Commissioner Peterson of the Australian Industrial Relations Commission dated 11 December 1995, in the following form: "In accordance with subsection 170ED(2) of the Industrial Relations Act 1988, the Commission hereby certifies that it has been unable to settle this matter by conciliation." There was no objection to the certificate made by either party, I therefore find the matter is properly before me. BACKGROUND The respondent operated a cafe which catered for a carwashing, vacuuming and detailing business. The business required a number of employees to enable the manual work of vacuuming and polishing the motor vehicles of the customers of the business to be completed. The applicant was an employee of that business and was usually paid an amount of $383.25 for a 38 hour week. The job of the applicant was to wash and detail the cars of the customers of the respondent. Generally cars were worked on whilst the owners were at the adjacent cafe. At the date of the trial the applicant was a young man of twenty years of age. REPRESENTATION The applicant was represented by Mr Joseph Giles, solicitor, of Messrs Giles Payne solicitors, and the respondent by Mr Marcel Sahade of counsel. Mr Sahade appeared without the benefit of an instructing solicitor. During the course of the proceedings it emerged that Mr Sahade was the brother of a Director of the company which operated the business and his father was the accountant for the organisation. HEARING After the issue of the certificate by the Commissioner the matter first came before the court on 30th January, 1996, when it was set down for a hearing on 22nd & 23rd April, 1996, with Return of Subpoenas on the 5 March, 1996. On 5 March 1996, there was an appearance on behalf of the respondent and according to the record on the court file leave was granted to the parties to uplift and photocopy the documents produced. For some unknown reason subpoenas apparently were not issued returnable on that date. There was also a request made to the registry of the court for a listing to enable a Notice to Produce issued on behalf of the applicant and made returnable on 7th March, 1996, to be completed. On the court file there is a letter dated 4 April 1996 from the Registry to the solicitors for the applicant, advising that no documents have been produced : "to this registry, by the respondent". The trial commenced on 22nd April 1995, at the end of that hearing day the applicant was directed to provide particulars of unpaid wages and the claim for penalty rates, also the full financial records of the applicant were to be made available. Similar requirements were made of the respondent. In addition with the consent of the parties, a mediation was ordered to take place on 5th June 1996. The matter did not settle at mediation and was then listed for a resumed hearing on 27, 28 & 29 November, 1996. Oral submissions were made on 19th December, 1996, when the decision was reserved. EVIDENCE OF THE APPLICANT The applicant testified that he had finished Year 11 at the local high school. He had worked for McDonald's whilst at school and later in a local Coles store at Maroubra Junction. He had completed a bar operating course since leaving school. The applicant, prior to his employment with the respondent, was working under the LEAP Scheme. Under this scheme he worked four days per week and at the time of his employment by the respondent he was working at the Bronte Gully landscaping under the Scheme. He usually had a week-day free and he did not work on Saturdays and Sundays. under the scheme He was at home one day when Mr Stephen Fullerton, an existing employee of the respondent, offered him a job at weekends. The evidence of the applicant was that he was told : "Anthony would pay his cab fare and that he would be paid in cash." He went over to the carwash by taxi and worked the full weekend. The applicant said his employer Mr Anthony Sahade was impressed with his work and he asked him to work full-time. Generally the hours of work started between 10 o'clock to 11 o'clock, and finished at 4.30pm to 5.30pm. Other shifts were 7am to 4pm or 8am to 5pm. On weekends he usually received $100 cash in an envelope with a piece of paper. The applicant was asked to leave the LEAP Scheme and to work full-time for the respondent. Thereafter the applicant testified that he was asked to turn up at work each day. Generally he worked over a nine hour period, although sometimes only with a break of twenty minutes to half an hour for lunch. However, often the applicant and his fellow employees worked through the lunch break and in those cases they would order their lunch from the cafe. The Employment Declaration form issued by the Australian Taxation Office and signed by the applicant and Mr Victor Sahade records the answer to Item 8: "Basis of Employment" as 'casual'. The applicant denies that he actually ticked 'casual' on the form. The applicant says that the respondent first paid his wages into his bank account on 27 June, 1997. This claim is confirmed by referring to his Commonwealth Bank Account. (Exhibit "4") There was a method of recording attendance through a Bundy Clock, although sometimes a person called "Abraham" walked around and marked, on a pay sheet, (Exhibit "C"), the workers who were present. Pay day was usually Mondays. The applicant acknowledged that a mistake was made in the payments to him and that he owed Mr Anthony Sahade the sum of five hundred dollars ($500.00.) The applicant says that Mr Anthony Sahade was impressed with his work and left him in charge of the wash area. He went to the business almost every day. The applicant maintains that he was not paid penalty rates, and that sometimes as it was a seasonal business and, if they were not very busy, or it was raining, he was sent home early. Occasionally he was asked to work overtime and then Mr Anthony Sahade would come in and pay them ten dollars cash in hand in lieu of an overtime payment. It is insisted by the applicant that this happened on five to ten occasions during the period in which he was working. It was also suggested that other employees were paid in cash. Generally he worked the same hours as Mr Stephen Fullerton. Two people worked at a time on a car. Usually there were two or three cars, present at the carwash at any one time. Some employees were doing interior work, such as vacuuming whilst others worked on the exterior. On one occasion there was an allegation made that some money was stolen from one of the cars worked on by the applicant. In his evidence the applicant denied he took the money saying: "he left the money where it was in the car". There were other employees of whom a significant number were from a non-English speaking background. The applicant says that a dispute about his employment occurred initially because of the late payment of monies into his bank. During the course of this discussion there was an argument and the word; "fuck was used and the language was bad". The applicant says he was told: "go home and come back at the end of the day and then it will be called quits and you are fired." The applicant says that words such as "you are a shit worker" and "what the fuck were you fucking doing?" were used to him. The applicant went home and collected his shirt and handed it to Simon. There was a further argument at 5.30pm and nothing was resolved at this meeting. Later on there were further arguments between the applicant and Mr Anthony Sahade. He then testified that Mr Anthony Sahade had said : "he was not going to get fucked over by a waxhead". The applicant says he insisted that he needed his pay and his Separation Certificate in order to apply for the dole. He was then ordered off the premises with a threat that the Police would be called. The applicant says that even at this stage of the hearing he had not received a Group Certificate or a Separation Certificate. Although in favour of the respondent it must be said that the group certificate may have been sent to an earlier address given by the applicant and returned unclaimed (see Exhibit "4"). The applicant says he started work on the 3 or 4 March, 1996, at Mikos Aluminium as a truckie's offsider and he was earning $10 per hour or $320 clear per week. Although Counsel for the Respondent cross-examined the applicant on the likelihood of him working in a chicken shop at an earlier date. The applicant admitted doing so but said it was for 1 or 2 days only. Under cross-examination it was put to the applicant that he and Mr Stephen Fullerton drove recklessly and that they spun the wheels of cars. It was also suggested that on one occasion a customer had come up and said; "What the fuck do you think you're doing? You are under the influence of alcohol." It was put to him that he often appeared at work suffering from the effects of his drinking the night before and sometimes with a severe hangover. It was also alleged that he would take time off and not return whilst his swearing was quite common and offensive. The applicants response to the question was that swearing was generally used within the workplace. The applicant attributed a lot of this swearing to some of his fellow employees in a language other than English. It was suggested in cross examination, with some justification, that as the applicant did not speak the other language he could not say with certainty whether swearing was involved. It was put to the applicant that he had obtained work at a chicken shop and he conceded that he had obtained two days work at $30 dollars per day. EVIDENCE OF FORMER EMPLOYEE Mr Stephen Lewis Fullerton of Botany, maintained that he had worked for the company from January 1995 to September 1995, starting work, firstly as a casual and subsequently becoming full-time. This had taken a period of between two to three weeks. He suggested that he was paid in cash prior to signing an employment declaration and that payments were made on Mondays at 6pm. He became full-time when he filled in an Employment Declaration form required by the Australian Taxation Office. Generally he had to work weekends over a five day week period from 7.00am to 4.00pm with days off during the week. He also maintained that sometimes he was paid extra monies in cash. Occasionally the Manager bought food at McDonald's for them. He testified that everyone at the workplace was swearing and had been warned about spinning the wheels. Mr Fullerton obtained work at Pagewood which was closer to his home, and this was his reason for leaving the employment of the respondent. His cross-examination revealed that Mr Fullerton was a good friend of the applicant who had stayed at the home of the applicant . The cross examination also confirmed that he had left the carwash on 9 September, 1995 and that he had started work at a place called "Wishbone Poultry." EVIDENCE OF FATHER OF THE APPLICANT Mr David Anthony Marlin of Randwick, Registered Nurse, confirmed the evidence of the applicant of his working under the LEAP scheme, and that he had started in summer working at Crystal Carwash on the weekends. At this stage he was living at home, although he left to live elsewhere later on. Mr Marlin gave evidence that he had visited the place of employment in April and November. He had seen Mr Steve Fullerton at his employment in Pagewood. He had gone back to the carwash to see if he could obtain a group certificate for the applicant about a week or two weeks after the applicant had been terminated. He saw Mr Anthony Sahade and he asked about the group certificate and he was told: "it is not available it is with our solicitor". It was also reported that Mr Anthony Sahade had threatened him saying: "you are trying to embarrass us, we have got a solicitor too. We will make sure it costs you heaps". EVIDENCE OF CURRENT EMPLOYEE OF RESPONDENT CALLED ON BEHALF OF APPLICANT Mr Brian Richard Chatto, of Werrington ,an outer western suburb of Sydney, appeared as a witness under subpoena issued on behalf of the applicant . Mr Chatto is an employee of the respondent who had fallen out of a car on 30 September 1995 and received a fracture injury which has prevented him working since that date. He is receiving compensation payments under the Workcover scheme in New South Wales. His employment with the company had started as general cleaner and storeman on 1 June, 1995. He testified that he would arrive at 6.30am, wash the premises down and then open up. He said that between 7.00 am and 7.30 am he would water the garden. He reported that the applicant regularly arrived and helped him set-up the hoses and other equipment. He had been given an Employment Declaration form by the former manager who he knew only as "Abraham". The applicant worked on vacuum cleaning and seemed to be a pretty good worker. He also gave evidence as to the meaning of the "Bundy Columns" shown on the "Bundy Cards" (exhibit "6"). The machine made an automatic deduction of a half hour for lunch. He reported that he had been approached by telephone the evening before he gave his evidence, by Mr Anthony Sahade. In that conversation he was asked how he was going and advised that his job would be available as soon as he was fit. He was also invited to a social function that was being organised by the respondent. This was a crude attempt by Mr Anthony Sahade to improperly influence the evidence of this witness. The assurance of Mr Marcel Sahade, as counsel, that he did not advise or know of this approach before it was made is accepted. This contact went well beyond the tolerance allowed in preparing a witness for trial. See the observations of Young J in Re Equiticorp Finance Ltd ; Ex parte Brock (No. 2) (1992) 27 NSWLR 391 at 395-6. Moreover it comes close to corrupt conduct and there is earlier authority for regarding such an attempt by Mr Anthony Sahade as an admission by conduct in these proceedings. The evidence of Mr Chatto was interrupted by the luncheon adjournment. Although he showed signs of stress before lunch these reactions were enhanced when the trial resumed. He was asked what he had done for lunch and he replied that he had eaten at McDonalds. He denied imbibing saying :"only if they serve alcohol in the Coca-Cola at McDonalds." He admitted going to the hotel but only to use the toilet. While he became more loquacious, it was not to the extent which would destroy his capacity to give evidence. EVIDENCE OF DIRECTOR OF RESPONDENT Mr Anthony Sahade of Point Piper, a Company Director and the operator of Crystal Carwash, gave evidence on behalf of the respondent. Mr Sahade denied that he had paid the applicant in cash, saying that there was nowhere that cash could be obtained from the business. He also maintained that he did not have access to the till saying: "I hardly touch the till". He acknowledged paying for a taxi for the applicant to initially come to work at the premises. During the period the applicant was employed he maintained that business was effected by a drought. This meant that the business had to use recycled water and could not get enough of it. He had sent the applicant home because of the drought. Mr Anthony Sahade stressed that the applicant was being paid the same rate as an adult. He acknowledged that the applicant was very enthusiastic at the beginning but as his employment progressed he became an average employee. The applicant would often drop the clutch and spin the wheels of cars thus attracting the attention of customers. He then testified that he had seen the applicant do this on many occasions and had reprimanded him. He did not give any other evidence of a further warning nor was it made clear to the applicant that his job was at risk for this behaviour. He testified that the applicant came back about two and a half hours, late from lunch on 28 October 1995,. He had then jumped in a VR Holden and spun the wheels and the owner of the car had screamed "what the fuck are you doing?" and had asked for payment of $200.00 for the wheels. It was then reported that the applicant had said "fuck the boss, fuck you, I'm leaving". Although the impression left by his evidence was that he had witnessed the incident which he described, I do not accept this as being accurate. It was suggested that the applicant often turned up for work in an intoxicated state and that he regularly had blood shot eyes and that was why he was not working well. He was lazy and lethargic and often took morning tea breaks of 20 minutes and lunch breaks of 1 hour. Then there was a suggestion by Mr Anthony Sahade that the applicant had actually left his employment on a voluntary basis saying words to the effect "don't re-hire me, I don't care". He acknowledged that the applicant owed him some $500.00. He reported that the pay records were kept by his supervisor and his foreman kept a list of the employees present on a daily basis. The methods used to record employment details had changed during this period and this had created some difficulties. Mr Anthony Sahade strongly denied that he had ever sworn at his employees. Having regard to the nature of this business and the number of employees, that denial is not credible and I do not accept it. Mr Anthony Sahade was closely questioned about a number of issues including the number of staff and whether there was a high turn-over. This was answered on the basis that on busy days they needed a lot of staff. He maintained that the business had a core of full-time people and these were supplemented by casuals. It was put to him that he had paid monies in cash, this was denied. This needs to be balanced against his admission that he paid the taxi fares for the applicant to first work in the business . As well there is the evidence of Mr Fullerton and the applicant that they were often paid cash for extra hours worked. He agreed that he had not paid any money in lieu of notice to the applicant. There was no other concession of this nature offered. EVIDENCE OF MANAGER OF THE RESPONDENT Mr Simon Khaddar of Lidcombe, manager of Crystal Carwash, gave evidence on behalf of the respondent. He acknowledged that the pay sheet (exhibit "C") was part of the records that he had kept. He was not working for the business when the applicant commenced and he was now a full-time employee.. The business employs some full time and a number of casual employees. He testified that the applicant was a casual and denied that he was a full-time employee. If it was raining it was his practice to send the casual home and keep the full-time employee on site. He confirmed the evidence of Mr Anthony Sahade that the applicant was a good worker until his friend left. Then he would often drive fast and spin the wheels. He claimed that he had spoken to the applicant and told him to stop doing it and had been told to "fuck-off!". Straight away he went and left the workplace and came back about 3 pm. The applicant would often take lunch breaks and be absent from 2 to 3 hours. He denies or does not remember whether he put the tick on the Employment Declaration form signed by the applicant. He has never seen anyone paid in cash.. He also maintains that it was 28 October 1995, when the incident happened. EVIDENCE OF THE MANAGER OF THE CAFE, Mr Maroun Raymond Anjoul gave evidence that he was the manager of the cafe and that he looked after the till. If a person got a ticket outside and paid in cash he would place the money in the till and would give a receipt. He looked after the cash or income side of the business. He identified some of the other full-time people as Brian Chatto, Simon Khaddar and suggested that the applicant was a casual. He maintained full-time employees had to show up on the rostered day whereas the other workers would come in each day. No rosters were produced in evidence. The applicant was always screeching wheels and was warned about driving dangerously. On one occasion he had heard a noise and went outside and saw the applicant driving a "red utility" he heard the owner scream: "those fucking wheels cost me $200.00". He had asked the applicant about it and he had been told: "fuck you and fuck the boss!" He remembered that the applicant was away one and a half to two hours over lunch. However an important admission made by Mr Anjoul in his testimony was that he had told the applicant: "I don't want you here, again". He acknowledged under cross examination that the same customer still came in because they looked after him as he was one of his acquaintances. He would often cash cheques for employees. He suggested that the applicant had received priority over other casuals, and during the last six weeks had developed a hatred towards the bosses. WAS THE APPLICANT A CASUAL? What constitutes casual employment is discussed by Moore J in Reed v. Blue Line Cruises (Moore J, 26 November 1996, unreported IRCA decsion No. 571/96). See also the observations of Madgwick J in Burazin v The Blacktown City Guardian (Madgwick J, 15 December 1995, unreported IRCA decision No. 606/96). Clearly while he was working only at weekends and under the LEAP scheme the applicant was a casual. He gave up a four day training program for a regular wage. His employment during the period from June to the date of his termination was on a full time basis The case for the applicant is also supported by the provisions of clause 3 ( e) of the Coachmakers, &c., Road and Perambulator Manufacturers (State) Award.. That clause provides a maximum period of one month during which a casual employee can work continuously on a full time basis. Beyond one month he is deemed to be employed by the week. The employment of the applicant with the respondent was not as a casual for the purposes of Regulation 30 B of the Industrial Regulations. TERMINATION OF EMPLOYMENT. The immediate cause of his termination was that as he was moving a motor vehicle, the wheels spun, and the owner of the vehicle happened to be present and dragged the applicant from the car. The applicant denies this incident occurred. It is supported by two of his former supervisors. I accept that an incident of this nature occurred, however I don't think that it was as serious as was maintained in the hearing. The aggravation which occurred in relation to the incident arose mainly out of the fact that the owner of the vehicle was a friend of the manager on duty at the time. The main witness for the respondent strongly maintained that there was no termination of employment and the applicant left his employment either voluntarily or by abandonment. This claim is inconsistent with the other evidence led on behalf of the respondent. In the evidence of the manager of the cafe he uses the following phrase :"I don't want you here, again". I find that that is sufficient to constitute a termination of employment. There is also nothing in the evidence of the Mr Anthony Sahade that he made any attempt to overturn this decision. He had already clashed with the applicant in relation to his claim for non-payment of sick leave. In the final analysis whether the applicant was terminated on 28 October 1995 or 6 November 1995 is of little significance. The bundy card for 28 October 1995 shows the applicant finished at 1630 hours. There is no note which would be expected to be found if he had left early so that there could be a deduction from his pay for the hours not worked . The pay sheet for the "pay week ended 4 Nov 95 " appears to have been completed in the same handwriting and does not have the crossings out and deletions contained on the earlier sheets. It is not a reliable document as it records "Chatto B" with ticks against his name as being present at work the same as any other employee. Moreover it is a different print from the pay sheet of 28 October 1995. Although some of the pay sheets have been printed on the reverse of previously used paper the printing on the back of the form used for ,"4 Nov 1995" seems to be out of sequence with the surrounding documents . It invites the suspicion that it is a reconstructed document. The applicant submitted an Industrial Complaint Investigation form to the NSW Department of Industrial Relations Employment, Training and Further Education dated "7/11/95".(Exhibit "A"). In that form he recorded : "Date finished :6/11/95". Because a few of his answers on the form conflicts with his later testimony it too is not a reliable document. However , given the circumstances of its tender ,the date it was signed is unlikely to be false. The form also contains the following warning immediately above where the signature and date are to be recorded : "Please note that DIRETFE has an obligation to report apparent breaches of other State and Federal laws to the appropriate authorities, e.g. Australian Taxation Office, Department of Social security, Police" On the balance of probabilities it would seem that the 6 November 1995 is the more acceptable date for the termination. WAS THERE A VALID REASON FOR TERMINATION Under the provisions of the Act, the respondent carries the burden of showing that at termination it had a valid reason or reasons for bringing the employment to an end summarily. In his decision in Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371, Northrop J describes the meaning of this phrase in the following way: "Section 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: "2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason." In its context in s170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bostik Pty Ltd (1995) 60 IR 1, when considering the construction and application of s170DC." The varying claims made by Mr Anthony Sahade as to whether there was an actual termination do not give the case for the respondent a basis for establishing that it's decision to terminate the applicant was sound or well founded. Having regard to the nature of the industry it appears that the allegations of misconduct even if grouped together do not justify, in the circumstances a summary dismissal of the applicant. The evidence in this case leads me to the conclusion that there was not well founded or just grounds for the decision to terminate the employment of the applicant. There was not a valid reason to terminate the employment of the application. SECTION 170DC: EMPLOYEE OPPORTUNITY TO RESPOND In Perrin v Des Taylor Pty Limited (1994) 58 IR 254 at 256-7, Moore J said the following about the purpose of section 170DC: "Its purpose is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee's capacity. In the present case, the applicant may have been able to show that the complaints about slow delivery parts had no factual foundation or that there was an explanation for their slow delivery that did not relate to any want of effort on his behalf. A second purpose of s170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. They may be extenuating personal circumstances or they may involve undertakings about future conduct." Despite the fact that there were several occasions when discussions were held between the applicant and Mr Anthony Sahade after he had ceased work for the respondent, there was no evidence of any opportunity being given to the applicant to respond to the allegations made against him. It appears that Mr Anthony Sahade was convinced that he could rely on his view that the applicant was a casual who could be terminated without notice to give him the authority to act in such a peremptory fashion. In my view, the respondent breached section 170DC of the Act, in that it should have given the applicant the opportunity of making representations. In addition, the applicant may have wished to give "undertakings about future conduct to" to the respondent . In view of the reports from at least three witnesses that he was capable of good work there was a reasonable prospect of him achieving his former standard as an employee.. In those circumstances there will be a finding against the respondent that there was a contravention of section 170DC. of the act. IS IT IMPRACTICABLE TO REINSTATE THE APPLICANT? I am required by the provisions of the legislation to determine the impracticability of reinstatement. Some early views were expressed on this issue in Liddell v Lembke 1 IRCR 466. Based on the discussion on this issue in that case, I am satisfied that I have only a limited discretion not to reinstate the applicant. In this matter in general terms there would be no reason not to reinstate the applicant. The business still continues, the nature of the work is such that the applicant could no doubt easily resume that work. Consequently in normal circumstances, an order for reinstatement could be made. However, he is a young man who has gone on to other work.. There is obvious tension between the main protagonists and it is unlikely to be put aside by either of them. It is impracticable reinstate the applicant. NON PAYMENT OF SICK LEAVE The applicant submitted to his employer a medical certificate dated 29/9/95 from the Maroubra Medical Centre certifying that "Mr Charles Marlin will be unfit to work from 28/9/95 to 30/9/95 inclusive." These dates are for a Thursday through to Saturday .Across the certificate has been written "no sick pay because not full time". The "Coachmakers & Road and Perambulator Manufacturers (State ) Award makes provision in Clause 20 for an employee on weekly hiring who is absent on account of personal illness to be entitled to leave of absence without deduction of pay". It seems to me that as he generally worked the weekend, he would normally have had some days off during the week. Moreover the award sets out various conditions before payment may be made. It would be appropriate to allow only one day as being necessary for payment of sick leave. There will be an award accordingly. CLAIM FOR UNDERPAYMENT OF WAGES There is also a claim for underpayment of wages and penalty rates based on the Coachmakers, &c., Road and Perambulator Manufacturers (State) Award. I am satisfied that the award applies. In the case of Wilson -v- IPC Corporation (Australia) Pty Ltd (Moore J, 8 December 1995, unreported IRCA decision No.653/95) observed that the onus of proving these matters rested upon the applicant. Whilst it is to the civil standard, I am not satisfied that the applicant has proved to the necessary degree that he worked the additional hours, which is shown in (Exhibit "H"). At the same time certain documentation was produced, by the respondent for the purpose of proving other matters concerning his employment. Section 60 of the Evidence Act, 1995(Cth), allows me to take that documentation into account in considering this claim. As this is the information maintained by the company and prepared by its officers I can act on those records. An examination of the documents contained in Exhibit Y shows that the applicant worked on a series of days which were a Sunday. He also worked on Monday October 2, which was a public holiday. Clause 23 of the award provides that the employees will be paid time and a half for work on Sundays and double-time and a half for the public holidays. According to the Wage records produced by the respondent, there does not appear to be any payment to cover these awarded entitlements. The amount paid to the applicant seems to be an amount paid on the same basis each week, irrespective whether the applicant worked the Sunday or otherwise. In those circumstances I find there has been an underpayment of wages in relation to the established rates of pay for work on Sundays and Public Holidays. It appears from an examination of the employer's material that the applicant worked on the following Sundays; 11 & 25 June, 8 & 9 July, 10 & 24 September, 8 & 15 October, a period of some 8 Sundays during that period. He further worked on 6, 13, & 27 August. In addition the applicant worked on 2 October, which was a Public Holiday in New South Wales, and according to the award is to be paid at two and half times the normal rate. I accept $76.65 as the normal daily rate of payment . Two and a half times the normal rate is $191.62. The applicant has already been paid $76.65 and therefore the additional amount that is owed to him is $114.97, which may be rounded up to $115 dollars. Additional payment is required for his work on Sundays There was also a claim made for overtime. I am satisfied that the applicant and other employees were regularly given cash amounts to remain and finish the work on any cars left at the end of the day or if it was a busy period. If the employment relationship of the applicant with the respondent had continued then it is likely that he would have been given an opportunity through this system to repay the $500.00 owing to Mr A Sahade. Therefore an allowance of $500.00 will be made for this claim. Included in the above claim is: The calculation of amounts owing to him is as follows:- 1. For work on Sundays; $1,149.75 2. Allowance for Overtime $ 500 .00 3. Payment for his work on 2 October, 1995, $ 115.00 TOTAL $1,764.75. As discussed earlier he is entitled to the payment of Sick Leave, being $76.65. The combined figure is $1,841.40. The applicant is entitled to a pay of one week in lieu, of notice for the contravention of Section 170 DB of the act. which is $383.25 COMPENSATION In the case of Nicholson -v- Heaven & Earth (1994) 1 IRCR 199, Wilcox CJ, suggested it may be appropriate to make an assessment of the period of time in which the applicant might continue before in his employment, before his termination was completed. In that case Wilcox CJ found that the particular applicant was not suited to the type of work he had done. There is a distinction in this case, in that the applicant did by all accounts do work appropriately, however, his workload deteriorated after his friend left. That is the allegation of the respondent. In those circumstances looking at the situation it seems that if the applicant had been returned to work and not terminated it might have taken up to the end of January, taking into account the Christmas/New Year holiday period and the busy time of year before the applicant left the employ of the respondent. That would be a period of some twelve weeks and on that basis an amount of $4,599 dollars would be payable to the applicant by way of compensation. In making that assessment I have taken into account a number of factors . These include: the applicant starting fulltime work in March 1997 and receiving payment for some part time work at the chicken shop. In my view that figure should be rounded up to make the amount of $5,000 dollars. COSTS The conduct of these proceedings was not assisted by the obvious and unnecessary antagonistic attitude which was displayed to each other by the solicitor and the counsel for each of the parties. I gained the impression that this had developed during the interlocutory stages when the court would expect there to be a full and mutual exchange of documents between the parties . It was obvious during the hearing, for whatever reason, this had not occurred. After the first day of hearing I had to give directions as to the supply of particulars and documentation by both parties . I deliberately avoided conducting an inquiry as to which advocate was right in their allegations of failure to disclose material which had been earlier requested during the court process. Any such inquiry would have extended the hearing and unnecessarily.. added to the costs ,which were already extensive. Although I am satisfied that there was a failure to act reasonably during this process without such an inquiry it is difficult to fairly attribute the responsibility. This case was instituted prior to the commencement of s 170EHA of the act on 15 January 1996. That section allows the court, if satisfied that a party to the proceeding has caused any other party to incur costs because of an unreasonable act or omission of the first -mentioned party in connection with the conduct of the proceedings to order the first -mentioned party to pay all or part of the costs incurred by the other party. However, using that section the failure to act reasonably may only be attributed to a party to the proceedings and in my view the ultimate responsibility for the way this case was conducted rests with the legal advisers. This court has an implied power to award costs which is limited by s347 of the act. See Canceri v Taylor [1994] 1 IRCR 120 per Moore J. In addition Wilcox CJ said in Nicholson v Heaven & Earth Gallery Pty Ltd [1994] 1 IRCR 199 at 202: " The limitation upon the court's power to order payment of costs that is imposed by s347 of the Industrial Relations Act applies only in relation to inter-parties orders. The section has no application in relation to costs orders made in favour of, or against, third parties" In Nielsen v Loyal Orange Trust (ACN 004 245 694) (an unreported IRCA decision No. 267/97 dated 11 September 1997) North J was required to consider an application for payment of part of the costs of the review by Mr. Nielson the solicitor for the applicant. Mr. Nielson was the brother of the applicant. It was the contention of the respondent that the hearing, which took eleven days, would have taken no more than five days if Mr Nielsen had not been so personally involved in the issues. In that case North J, at page 6, issued this timely warning : "It is of the essence of the function of a legal advise , and particularly an advocate before the Court ,that such person is independent from the parties represented and the events in issue. Otherwise there is a danger that the objectivity needed will be compromised when the legal adviser is called upon to advise and make decisions in matters in which that person was a participant. For this reason it would have been far preferable for the applicant to have been represented by a person independent of the events which were in issue before the court. However ,whether Mr Nielsen caused a lengthening of the trial and, if so, whether he should bear the respondent's costs of such extension is another question to be answered by an objective assessment of the way the hearing was conducted." There is no evidence that counsel for the respondent was a participant in any of the events surrounding the dismissal of the applicant. On the contrary it appeared that on occasions he was not kept fully informed about the knowledge or conduct of his brother on behalf of the respondent during or prior to the proceedings commencing. In this jurisdiction ardent, torrid, vulgar, sometimes insulting and often insolent or contemptuous language is used by either the witnesses or unrepresented parties in their desire to seek redress for the damage caused by the partition of their former employment relationship . Frequently claims of the nature made in this case as to the method of payment of wages are raised generally to the consternation of both parties. See also the discussion of these issues by Millane JR in B. Daniel v Real Estate Network Pty Ltd (an unreported IRCA decision No.496/96 18 October 1996) When evidence of this nature arose in this case counsel for the respondent did not, having regard to the standard set out by North J, show the objectivity needed for an advocate in this court. If this same perception of a lack of objectivity appeared to the solicitor conducting the case for the applicant it can be understood but not justified if he responded in a similar manner during the various stages of the proceedings. There are a number of counsel who appear in this court and who occasionally suffer from a transitory disability. Inevitably they ask for an adjournment which is usually granted without question as it is in the best interests of the party who they are representing At one stage during these proceedings counsel for the respondent became obviously unwell sitting at the bar table . I was concerned that he could not continue to adequately represent the interests of the respondent in that condition . He was offered an adjournment which he declined. In his judgment in Nilsen (supra) North J , after reviewing a number of cases, concluded: "In order to warrant an award of costs against a solicitor for the opposing party, the law requires a serious departure from acceptable standards". Whilst some of the matters discussed in this decision are in the nature of a departure from acceptable standards I have taken into account the refusal of counsel to accept an adjournment as being an attempt on his part to contain the prospect of additional costs being incurred. Although ,if requested ,I will hear further on behalf of the applicant on this issue I am prima facie of the view that there should be no order as to costs. made either against the respondent or counsel personally. OTHER ISSUES : PAYMENT OF CASH TO EMPLOYEES In order to rebut the allegation of cash payments being made by Mr Anthony Sahade to employees with the intention that neither person would account for them to the Australian Taxation Office the respondent tendered through its counsel a letter dated 24 October 1996 from that office addressed to the company. The letter contained a statement which maintained that the signatory found "the records to be prepared recorded and kept within the current record keeping standards" It was obvious that the signatory was not shown the exhibits in this case and it may be that the officer was not made aware of the purpose to which the letter was to be used. The letter would certainly have had more evidentiary effect if this was apparent on the face of the document. The denials of Mr Anthony Sahade as to cash payments being made to employees has already been recorded in these reasons . Although there was no direct evidence the implication from the allegations and the denials is that these payments would not be disclosed for taxation and other purposes such as Workers Compensation premiums or State Payroll taxation if applicable when properly recorded. On this question Mr. Anthony Sahade maintained that if he needed any money for cash payments he would draw a cheque and cash it through the cash register. There was no evidence tendered of this nature during the hearing.. I am satisfied that payments were made in cash to at least two persons and probably more on behalf of this respondent. Whether either party to those transactions has properly accounted for them is not a matter for this court to determine, I propose to adapt the direction given by Millane JR in Daniel (supra). The intention being that the State authorities are also entitled to investigate whether there has been a failure to fully disclose the wages bill for the purpose of avoiding such liabilities as Workcover premiums. Accordingly , I also propose to direct the District Registrar of the court to forward to the Attorney-General a copy of these reasons for judgment and the evidence of the witnesses and to make available, may be required ,the full transcript of the proceeding and the exhibits for inspection by any officer authorised by the Attorney-General ,the Commissioner for Taxation or of the Workcover Authority of New South Wales. MONIES LENT TO APPLICANT In his understandable endeavour to assist his employer the manager strongly denied that Mr Anthony Sahade would lend money to any employee. However in his evidence Mr Anthony Sahade testified that he had lent the applicant: "$500.00 out of his own pocket." He also confirmed that the applicant owed him that amount. In order to prevent the prospect of further litigation between the applicant and Mr. Anthony Sahade this amount ($500.00 ) should be deducted from the amount of compensation ordered to be paid by the respondent However this can only be done if Mr Anthony Sahade lodges with the court an acknowledgment that such a deduction will discharge the liability of the applicant to him for that sum. The parties will be given an opportunity to file consent orders to this effect. There will be judgment and orders accordingly. I certify that this and the preceding twenty four (24) pages are a true copy of the reasons for Judgment herein of Judicial Registrar McIlwaine Associate: Kate Benson Dated: 15 January 1998 Solicitor for the Applicant: Mr J Giles Giles Payne & Co Counsel for the Respondent: Mr M Sahade