Abbott & Gatland [2004] NSWIRComm 1111

Industrial Relations Commission of New South Wales

CITATION: Abbott & Gatland [2004] NSWIRComm 1111 APPLICANT PARTIES: Margaret Abbott RESPONDENT Drew Gatland FILE NUMBER: IRC 4127 of 2004 CORAM: Ritchie C CATCHWORDS: unfair dismissal - termination of employment - no reason given at termination - absence of procedural fairness - dismissal held as harsh ,unreasonable ,unjust - compensation ordered. LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 10/21/2004 DECISION DATE: 11/11/2004 APPLICANT Applicant appeared in person REPRESENTATIVES: RESPONDENT Mr. S. Cutting

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: RITCHIE, C

11 November 2004

Matter No IRC 4127 of 2004

Margaret Abbott & Drew Gatland

Application by Margaret Abbott re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2004] NSWIRComm 1111

Background. 1 Mrs. Margaret Abbott (the applicant ) commenced employment for Mr. Drew Gatland (the respondent) on 28 April 2004 and was terminated on 29 June 2004. 2 The applicant filed an application for relief in relation to her dismissal on 15 July 2004 and the matter came on for conciliation and directions on 22 July 2004 in Coffs Harbour. In her application the applicant sought compensation as the relief sought. She sought four months wages. 3 At the conciliation , the applicant appeared for herself and Mr. S. Cutting (Cutting) appeared for the respondent. As conciliation proved unsuccessful , I set down a timetable for the filing and serving of evidentiary material. 4 Whilst the applicant filed and served a statement the respondent chose not to file anything. 5 A mention was held on 16 September 2004 and a hearing date of 21 October 2004 was set. 6 At the hearing the appearances remained the same. I was advised on the day of the hearing by Cutting that he confirmed the employer of the applicant was Drew Gatland and not New Millennium Business Solutions . 7 I raised that question for on file was correspondence from Cutting dated Tuesday, July 20 ,2004 on New Millennium Business Solutions letter head requesting a relisting of the Conciliation and Directions listed for 22 July 2004. Case for the applicant. 8 At her employment interview the applicant stated that it lasted no more than two minutes. She was told she would be paid at the rate of $13.66 per hour. She rang back the following day and was told she had the job. 9 She commenced work and carried out training for a few days at the Grafton store which was Head Office. 10 The applicant then worked at the Yamba store trading under the name of " Text Express " in a full time sales position selling mobile phones and accessories to the general public. The retail outlet was under a Telstra dealership. 11 The manager of the Yamba store resigned after a few days of the applicant arriving and a new manager (Nicole Newcombe) was sent from the Grafton store. 12 When the applicant received her payslip she noted that the rate of pay was $13.00 per hour. After receiving a number of payslips with the incorrect amount she contacted Cutting and the back pay was finally made. 13 When the applicant contacted Cutting in response to customer queries she was told by Cutting to " lie or make something up". 14 The applicant spent a couple of days at the Grafton store for telemarketing training and then returned to the Yamba store . The day she returned to Yamba she became the manager and the incumbent went back to the Grafton store. 15 The applicant stated that she worked Monday to Saturday but received no overtime payments. 16 Because of the non payment of the overtime , the applicant rang Wage Line on three separate occasions to seek information on what she should be receiving before approaching Cutting. She stated that she had rung on that number of occasions so that she would be sure of her facts. 17 On 29 June 2004 the applicant rang Cutting and inquired about the non payment of overtime and told him that she had rung Wage Line seeking information. A discussion developed between the two , with the applicant just seeking to be paid correctly . Cutting responded that a recent overpayment of four hours in her wages had occurred and that he would take that back.