Bill v Welding Technology Institute of Australia [1998] IRCA 22

Industrial relations COURT OF AUSTRALIA INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON FOR TERMINATION - whether refusal to hand over laptop computer for use during Christmas holiday period was gross insubordination - not a valid reason for termination of applicant - SERIOUS MISCONDUCT - not sustained - SUMMARY DISMISSAL - applicant escorted from premises by security guards - not justified - CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND - no opportunity given by Council, of which applicant was Federal Secretary, to respond to allegations by Director until after application filed - HARSH UNJUST OR UNREASONABLE - claim no longer possible as not a valid enactment of Australian Parliament - SEXUAL HARASSMENT - prior complaints of sexual harassment - resolved by Respondent with reluctant consent of applicant - REINSTATEMENT IMPRACTICABLE - Applicant had not put aside prior allegations of sexual harassment so as not to disrupt future work situation - COMPENSATION - assessed on basis of period without work - amount included for distress shock and humiliation of manner of termination - deduction allowed for ex gratia payment - NOTICE OF TERMINATION not given - WAGES IN LIEU OF NOTICE not paid - PERIOD OF NOTICE - statutory period allowed of three weeks. Workplace Relations Act 1996 (Cth) (formerly known as Industrial Relations Act 1988 (Cth)) ss 170DB, 170DC, 170DE (i),170DE(ii), 170DE(1). Annual Holidays Act 1944 (NSW) State of Victoria v Commonwealth of Australia & Ors (1996) 138 ALR 129; Cindy Ann Nettlefold v Kym Smoker Pty Ltd 69 IR 370; Ian Kerr and Helen Kerr v Jaroma Pty Ltd T/a Treasury Motor Lodge (Marshall J, 7 October 1996, unreported, decision no.470/96); Gerard Westen v Union des Assurances de Paris (17 December 1996, unreported, decision no. 660/96); Burazin v The Blacktown City Guardian Pty Ltd (Full Court, IRCA, 13 December 1996, unreported, decision no. 606/96); Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371; Leisa Jane Mooney v W&B Morieson Pty Ltd (Moore J, 5 June 1996, unreported, decision no.186/97); Nokia Telecommunications Pty Ltd v Keith Davis (Wilcox CJ, 10 October 1996, unreported, decision no. 549/96); Bennett v Board of Fire Commissioners of New South Wales (1976) 87 WN(PTI) NSW 307 Perrin v Des Taylor Pty Ltd (1995) 58 IR 254; Lidell v Lembke T/A Cheryls Unisex Salon (1994) 56 IR 447; R J Gilbertson (Qld) Pty Ltd v Errol Lloyd (Full Court IRCA, 29 November1996, unreported, decsion no. 580/96) May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112. Bill v Welding Technology Institute of Australia NI 1078 of 1996 Before: McILWAINE JR Place: SYDNEY Dates of hearing: 23 May, 21 and 23 August 1996 and 20, 21 and 23 January 1997 Date of judgment: 16 June 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA