Raftery and KMPB Group Pty Ltd [2006] NSWIRComm 1053

Industrial Relations Commission of New South Wales

CITATION: Raftery and KMPB Group Pty Ltd [2006] NSWIRComm 1053

APPLICANT Brendy Raftery PARTIES: RESPONDENT KMPB Group Pty Ltd

FILE NUMBER(S): 5301 of 2005

CORAM: McLeay C

CATCHWORDS: unfair dismissal - claimed dismissal due to pregnancy - exparte hearing - no alternative reason proposed - respondent ceased to trade - found, dismissal due to pregnancy - ordered maximum compensation

LEGISLATION CITED: Industrial Relations Act 1996

Sen v Doors Plus Pty Ltd [2206] NSWIRComm 85 Longin v Murphy's Lawyers Inc [2006] NSWIRComm 84 CASES CITED: Dedov v Apollo Life Sciences Ltd [2006] NSWIRComm 55 Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39 Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36

HEARING DATES: 28/03/06

DATE OF JUDGMENT: 03/28/2006

APPLICANT Mr S Raftery, husband LEGAL REPRESENTATIVES: RESPONDENT No appearance for or by the respondent

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: McLEAY C 28 March 2006

Matter No IRC 5301 of 2005

Brendy Raftery and KMPB Group Pty Ltd Application by Brendy Raftery re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2006] NSWIRComm 1053 1 This is an application by Brendy Raftery re unfair dismissal against KMPB Group Pty Ltd ("the respondent") pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Ms Raftery was dismissed from the position of Secretary - Leasing Administrator on 23 September 2005, having been employed by the respondent since 10 November 2003. 2 Following conciliation between the parties before Commissioner Tabbaa, the parties were directed to confer further. There was no appearance on behalf of the respondent at the following conciliation conference, and directions were issued in preparation for a hearing. The applicant filed and served relevant material; the respondent did not. 3 The failure of a party to comply with directions issued by the Commission and/or the party's failure to attend at proceedings before the Commission has been considered in light of Practice Direction 17 which has as its purpose to facilitate the just, quick and cost-effective disposal of unfair dismissal proceedings before the Commission. (See: Sen v Doors Plus Pty Ltd [2006] NSWIRComm 85; Longin v Murphy's Lawyers Inc [2006] NSWIRComm 84; Dedov v Apollo Life Sciences Ltd [2006] NSWIRComm 55; Gu v Nature's Care Manufacture Pty Ltd [2006] NSWIRComm 39; Zammit v KTS Logistics Pty Ltd [2006] NSWIRComm 36.) Accordingly, the hearing proceeded ex-parte in accordance with the advice provided to the parties. 4 The respondent operated a commercial property leasing management business on behalf of property owners. According to the applicant's evidence, the respondent and the individual owners of each property under management by the respondent were all ultimately owned and controlled by Ms Helen James and her husband Mr Michael Kwok. 5 On 10 May 2005 Ms Raftery discovered she was several weeks pregnant. She believed her pregnancy was physically obvious by mid June. After a period of leave at the end of June, Ms Raftery was provided with an Amended Employment Agreement, which appeared the same as her pre-existing contract with the exception that it reduced the notice period from four weeks to one week. Ms Raftery signed the document and returned it to her employer some time between 4 July and 21 July. 6 Between 8 and 12 August, Ms Raftery was informed that she would be given a pay increase and a bonus of $1000. Also around this time, the Assistant General Manager Mr Bill Liu asked her for details of all her lease files including any special details. Ms Raftery found this unusual. 7 Ms Raftery said that she was called into Mr Liu's office and handed a letter which was signed by Ms James and which terminated the applicant's employment. 8 On the basis of the evidence before me I am satisfied that the only reason available for termination was that the applicant was pregnant. Prior to the dismissal, the applicant was given a pay rise and a bonus. However, there was also the effort by the employer to reduce the period of notice from four weeks to one week which would seem only to have the purpose of saving the employer three weeks money if and when the dismissal was to occur, and it would seem that it is likely that that was in mind. Whether it was or not, of course, is something that we cannot tell, but there is no other reason given for the termination of the employment. 9 The respondent has chosen not to attend today. There are matters on the file that show the respondent's principals reluctant to identify themselves when approached by this Commission by phone. The Commission's file also shows that the respondent was properly notified of the proceedings. 10 I am completely satisfied that the termination of the employment of the applicant was harsh and unjust. 11 I am satisfied that reinstatement or re-employment are impracticable, particularly given the submission of Mr Raftery that the respondent company has ceased to trade (although the principals continue to trade under a different company name and from the same address). In considering the amount of compensation I have taken into account the applicant's impending pregnancy and the likelihood of her taking at least a short period of leave at the time of the birth of her child. Nonetheless, the severity of the respondent's action in dismissing her cause me to determine that the maximum compensation is appropriate. 12 I make the following orders: ORDERS