Trotter v Slavic t/as Amici's Restaurant [2001] NSWIRComm 292

Industrial Relations Commission of New South Wales

CITATION : Trotter v Slavic t/as Amici's Restaurant [2001] NSWIRComm 292 PARTIES : Phillip Charles Trotter John Slavic trading as Amici's Italian Restaurant FILE NUMBER: IRC 6251 of 2000 CORAM: Harrison DP CATCHWORDS : Application for relief from unfair dismissal - misconduct - summary termination Held - substantive and procedural fairness - application for relief refused LEGISLATION CITED : Industrial Relations Act 1996 HEARING DATES: 09/13/2001 DATE OF JUDGMENT: 11/16/2001

APPLICANT Mr N Pipe, Solicitor John McDonald & Partners Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr G Brooke Newton & Associates, Employment Consultants & Industrial Advocates

JUDGMENT: - 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Friday, 16 November 2001 Matter No IRC 6251of 2000

PHILLIP CHARLES TROTTER & JOHN SLAVIC T/AS AMICI'S RESTAURANT

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2001] NSWIRComm 292 1 This matter initially dealt with by McKenna C resulting in a conclusion that the matter was unable to be resolved by conciliation, and an exercise of rights pursuant to s173 of the Industrial Relations Act 1996 ('the Act') by the Restaurant and Catering Industry Association of New South Wales (RCA), then appearing on behalf of the respondent employer. 2 The matter was subsequently allocated to the Commission as presently constituted for arbitration proceedings. Directions were issued to bring the matter to hearing in September 2001. Subsequent to these directions the RCA filed a Notice of Ceasing To Act on behalf of the respondent. By Notice of Appearance filed, the Commission was informed that the respondent would be represented by Newton & Associates, Employment Consultants and Industrial Advocates. 3 Arbitration proceedings took place at Tweed Heads on 13 September 2001. Mr N Pipe, solicitor of John McDonald & Partners Solicitors, appeared on behalf of Mr Phillip Trotter ('the applicant'). Mr G Brooke of Newton & Associates, appeared on behalf of John Slavic, trading as Amici's Italian Restaurant ('the respondent'). 4 Mr Pipe brought evidence from the applicant. 5 Mr Brooke brought evidence from Mr John Slavic, the respondent; Ms Georgina Stephens, former de facto partner and employee of the respondent in the capacity of waitress; and Mr John Wicks, employed by the respondent at the relevant time as maitre d'/waiter. 6 This evidence of the respondent's witnesses was presented in the form of affidavits, sworn on 11 September 2001. Mr Pipe took no objection to the late entry of affidavits, noting that the respondent's case had earlier been set out in a series of statutory declarations filed on 10 August 2001 by the RCA, then the respondent's advocate of record. 7 At the conclusion of evidence on 13 September 2001 the parties made application to put submissions in writing. Submissions from the applicant were received on 10 October 2001. Submissions from the respondent were received on 26 October 2001. THE EVIDENCE 8 The applicant commenced employment with the respondent on 25 February 2000 in the capacity of pizza chef. 9 The applicant's evidence is that he commenced employment in the catering industry in 1981 as an apprentice chef. The applicant deposed that he has worked in various capacities, including as a chef in a la carte restaurants, and as a contract caterer in the club industry. The applicant had not completed his apprenticeship, having two units of the TAFE syllabus to fulfil. 10 The applicant's evidence is that Mr Slavic undertook to teach him the skills required to roll pizza dough, which he put "took a couple of days for me to pick up the procedure but I got the hang of it fairly quickly." The applicant describes his duties with the respondent at points 8, 9 and 17 of his affidavit of evidence (ex 1) in the following terms: 8. My duties in relation to the restaurant included weighing and rolling the dough, making sure that there was enough of the various items that go on the pizza and, if not, preparing those items such as cheese, vegetables, meats, etc., cutting the tomatoes for the bruschetta, preparing the garlic bread, folding the pizza boxes and making sure my section was clean and tidy.