Industrial Relations Commission of New South Wales CITATION: MAESTRALE AND A.C.T.S. SECURITY PTY LTD [2006] NSWIRComm 1144 APPLICANT Aldo Maestrale PARTIES: RESPONDENT A.C.T.S. Security Pty Limited FILE NUMBER(S): 2514 of 2006 CORAM: Murphy C Ex-parte hearing necessary due to respondent's non appearance at summons proceedings and substantive hearing and failure to follow directions of Patterson C re filing of witness statements. CATCHWORDS: Applicant found to have been dismissed following pursuit of employment entitlements such as pay slips, award increase and non-payment of superannuation. Reasonable inference that Applicant was dismissed and in effect victimised for pursuing entitlements and resulting in finding of harsh, unjust and unreasonable dismissal. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: NIL HEARING DATES: 25/09/06. DATE OF JUDGMENT: 09/29/2006 EXTEMPORE JUDGMENT DATE : 09/25/2006 Aldo Maestrale, applicant, represented himself LEGAL REPRESENTATIVES: No appearance by respondent DECISION: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: MURPHY C Monday 25 September 2006 Date of Issue: 29 September 2006 Matter No IRC 2514 of 2006 ALDO MAESTRALE AND A.C.T.S. SECURITY PTY LIMITED Application by Aldo Maestrale re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION EX TEMPORE [2006] NSWIRComm 1144 1 Ex-parte hearing on 25th September, 2006 of this matter was necessary to deal with an application to this Commission from Aldo Maestrale against his alleged unfair dismissal from A.C.T.S. Security Pty Limited. Mr Maestrale was here today representing himself. As already canvassed extensively on the transcript of proceedings, there was no appearance by the respondent, which justified the ex-parte hearing for reasons fully outlined therein, but now partly repeated. 2 The respondent was represented in two proceedings before Commissioner Patterson in this matter in the conciliation phase, firstly on 7 July and then on 31 July by Mr George Kekatos, who claimed, inter alia, at that stage that the applicant had not been dismissed. At the end of the 31 July proceedings, directions were given by the Commissioner as to the filing of witness statements. These required that the applicant, Mr Maestrale, was to file his written statements and serve them on the respondent by 21 August 2006. The respondent was given 21 days, up to 11 September, to file and serve its written statements in reply. And finally, the applicant was given seven days thence, consistent with Practice Note 17, that is, up until 18 September to provide a rebuttal statement. 3 The applicant's appearance here today unaccompanied by the respondent was similar to a situation on 20 September, when two summonses for production came before the Registrar. There was no appearance by the respondent on that day. Those summonses were marked MFI 1 and MFI 2 in these proceedings and the Commission has already gone on record to outline the particulars of those summonses, which included also affidavits of service upon the respondent. 4 The Commission's decision to proceed ex parte at this hearing was influenced by the non appearance of the respondent at those summons production proceedings by the Registry, but more importantly, the failure to appear here today, despite being advised on 4 September of these proceedings and when contacted by Registry staff on 12 September in respect of the non-filing of witness statements. No reasons were offered to staff when making contact with the respondent for non compliance with Commissioner Patterson's directions. 5 The Commission is satisfied for the reasons outlined earlier on transcript that it should proceed ex parte here today. 6 The Commission had no argument or proper evidence before it in respect to any potential jurisdictional barrier to the hearing of the matter and proceeded to consider the merits of the case on that basis. 7 Mr Maestrale's affidavit was marked Exhibit 1 in these proceedings, which attached several key pieces of correspondence. The particulars in evidence are as follows, that firstly, he was employed since 1998 at the site by another employer, Probe Security, taken over by Chubb Security, both well known security organisations. He continued his employment there at the same site. The company was then taken over by A.C.T.S. Security Pty Limited in May 2000 where he was employed under the supervision of two then owners of the security organisation, Michael and Kerry Thompson. However, in February, 2005, the organisation changed ownership and a Mr George Kekatos, who appeared as the respondent's representative in those proceedings before Commissioner Patterson, approached the applicant at that stage to advise him that his employment to the company would not be affected by the change of ownership. 8 Perhaps more importantly, Mr Kekatos said to the applicant on that occasion, that he was aware that the applicant had another job and being an accountant, that he was aware of the tax burden and therefore the applicant might like to take $20 per hour cash on Sundays. The applicant says that he regarded such a request as absurd and remained silent. He was then asked by Mr Kekatos to think about that offer of payment of cash on Sundays. He was next handed a form purporting to be on a company letterhead, "Citicorp Security Services", which was said to be a division of Crown Security Pty Limited, and asked to fill in bank account details and fax it to the number shown. The applicant did not fill in that form, because he said his banking details were already known to his employer. 9 On the 19th of that month, that is, February 2005, the applicant gave evidence of an increase in the Security Industry State Award which he said was not passed onto him, and on 3 April, he faxed a letter to the respondent which was marked annexure B to the applicant's affidavit, requesting payment and also requesting back pay slips. On 5 May, Mr Kekatos wrote back to him and acknowledged the discrepancies and rectified the shortfall, and that was attachment C to the applicant's affidavit. 10 On 27 November 2005, the applicant wrote again to Mr Kekatos requesting the issue of the missing pay slips he had already requested and evidence of payment at that stage of superannuation amounts, which should have been paid into the ARF Super Fund account since the change of ownership of the respondent. That was annexure D to the affidavit of the applicant. On 30 November, some three days later, Mr Kekatos responded to the letter, which is marked annexure E to the applicant's affidavit, saying amongst other things, "As to when payments are made to the fund, the SGJC(sic) and award do not specify the timing of the same, it is up to the company". 11 On 10 December 2005, the applicant wrote to Mr Kekatos again reminding him of the obligations under the superannuation legislation, but received no reply. That was annexure F. On 6 January 2006, the applicant again wrote to the respondent through Mr Kekatos detailing the superannuation payments that he believed were owed at the time, which were to the tune of $1347.58, and reminded Mr Kekatos to remit the contributions quarterly, as he understood the requirement to be, and also the outstanding pay slips, which to that date were still not obtained. He did not receive a response or the remittance of the short payment. Annexure G was a copy of that letter. 12 On 10 February 2006, he actually met with Mr Kekatos in company with a gentleman by the name of Richard Stubbing, whose position in the organisation was unknown by the applicant at the time. The purpose of the meeting was to discuss the issues of the non payment of the superannuation, non issuance of pay slips and the pay discrepancies. The applicant obtained a copy of the file note at the time which quoted Mr Kekatos' recording from the meeting, "The company to ensure superannuation contributions to the end of 31 December 2005 to be brought up to date by end of week 20 February 2006". This again was not adhered to by the respondent, according to the applicant, and that was marked H to his affidavit. 13 On 27 February 2006, the applicant reported the non payment of superannuation payments to the Australian Taxation Office and received a case number 22560618. On 19 March, the applicant wrote on his time sheet addressed to Mr Kekatos a message to the effect that he had not forgotten about the non payment of the superannuation and to the effect that he had given enough time for those contributions to be made and urged immediate action by the respondent. There was no reply by the respondent. A copy of that letter to the applicant was marked Annexure I to Exhibit 1. 14 On 9 April, the applicant again wrote to Mr Kekatos on the time sheet saying "Superannuation contributions are ridiculously well overdue. Attend to payments immediately". No response was received to that letter, which was marked annexure J to Exhibit 1. 15 On 15 April 2006, he again wrote to Mr Kekatos and commented after requesting the superannuation contributions, that ignorance was no valid excuse to the non payment by the employer. There was no reply to that letter, annexure K to the affidavit, Exhibit 1. 16 On 23 April, he again wrote on a time sheet to the respondent requesting pay slips for the period commencing 20 February to date as a matter of urgency. There was no reply to that, which was marked annexure L to the affidavit, Exhibit 1. 17 On 1 May 2006, being 9 weeks, since the increase awarded under the award was to be effective from 19 February 2006, the applicant wrote again to Mr Kekatos regarding that discrepancy, as well as the superannuation issue. He received no reply to that letter marked M to his affidavit. On 7 May, there was a lapse of seven days since that previous letter and he again wrote on his time sheet urging the respondent to pay the shortfall. There was no reply to that letter. However, the respondent eventually paid that shortfall in the award rate on 10 May 2006. Annexure N was a copy of the confirmation of the fax transmission. 18 During this period, the applicant made numerous attempts to telephone Mr Kekatos, leaving messages on a voicemail, none of which were acknowledged, and any time that he managed to get through to the office, Mr Stubbing, he believed covered for Mr Kekatos, and he never received a call back. Mr Stubbing would tell him that Mr Kekatos was unavailable. 19 On 14 May, the applicant wrote again on his time sheet to Mr Kekatos and to Mr Stubbing at that point, drawing their attention to the non payment of superannuation from 14 February 2005 to date. He also said "I ask you both to stop playing games and address your obligations". He received no response to that note, marked O amongst the annexures to the affidavit, Exhibit 1. 20 On 21 May, the applicant wrote on a further timesheet to Mr Kekatos and Mr Stubbing again commenting that his contributions were "ridiculously in arrears" and demanding payment within 48 hours, and threatening to notify the particular client as to the non payment of those superannuation contributions. The applicant boldly commented in that letter, "George, you are a coward not returning my calls and Richard, you are a liar". There was no response to that, which is marked P to Exhibit 1. 21 Significantly, on the morning of 1 June 2006, 10 days after the last message, the applicant received a call from Mr Stubbing saying the following, "Hi Aldo, it's Richard. I'm calling to let you know you are no longer required as of this weekend". The applicant replied, "For what reason?" And the response was, "I don't need to give you a reason. You're a casual employee, so I don't need to give you a reason". The applicant replied, "Let's see what Jan Stupple, (the client), has to say about that". The respondent, Mr Stubbing, yelled at the applicant that, "I run the fucking company, not Jan". The applicant replied, "Seeing you run the company, let's discuss my non payment of superannuation". Which he received the reply, "You take it up with George and no, George is not here". Then Mr Stubbing hung up the phone. 22 The remainder of the applicant's affidavit concerns his efforts then to pursue his rights, writing on 9 June to the respondent advising them of the advice he sought from the union in the matter, and also pointing out that the union had advised him that he was entitled to be treated as a permanent part-time employee due to the constant and systematic nature of his shifts at the Menai Market Place over the previous three years, and he would also have a case against the respondent for unfair dismissal. That was marked Q to the annexures. Also marked annexure R is a copy of explanation of their stance from the union to the respondent. On 16 June, the applicant filed his application before this Commission. 23 The applicant also gave evidence that he believed it was glaringly obvious that it was his persistence in chasing up grossly overdue payments owed to him, that resulted in him becoming a victim of an unscrupulous employer and being seen as a thorn in the side of Mr George Kekatos. 24 Mr Maestrale testified that it was obvious to him that there was also no intention to pay the correct amounts of superannuation. Upon termination, the applicant was not paid for the last two shifts on Saturday and Sunday, the 28th, which were due on the 30th. He had to ask for his wages again at the hearing of 7 July, which at that stage the respondent was still withholding. He was issued with a cheque following those proceedings before Commissioner Patterson. 25 I should also note at this stage that the applicant, upon issuing the summons for production to the company, drew a cheque in favour of the respondent for $25 travelling allowance and separately another cheque for $20 to cover travel for the second summons. The first cheque has been cashed, and yet there was no appearance and certainly no effort by the respondent to produce the documents which on their face appear to this Commission to be relevant and reasonable in the circumstances. The applicant is still awaiting the superannuation amounts to be paid into the fund, which at the date of the affidavit Exhibit 1, were not lodged. 26 The applicant contended that his dismissal was therefore unfair due to the underlying issue of the underpayments and superannuation amounts owed to him and that his job was unfairly and unjustly taken from him because of annoyance with his insistence in the pursuit of his employment rights. He believed he only asked for what his entitlements were. Annexed and also marked annexure S to Exhibit 1 was a copy of the applicant's ARF super fund statement up to and including 31 July 2006. 27 The applicant was also keen to put before the Commission an extract of the Secure Employment Test Case of February 2006, handed down by the Full Bench of this Commission, pointing out that after six months of consistent employment under those provisions, that he should have been given written notice of his right to become permanent part-time. This was verified to him in a letter from the union. He contended that, as such, the company has also breached the award by not offering the above, having worked a consistent roster for three years and having applied to the company for permanent status under those provisions. Annexure T was a copy of those provisions. Annexure U was a copy of the hours the applicant had worked and the loss suffered by him and what he should have been entitled to. The applicant claimed the full six months compensation from this Commission. CONSIDERATION 28 I have had the opportunity of observing at first hand the evidence and demeanour of the applicant and have no reason not to accept all his testimony as he appeared to be a witness of truth, and the respondent chose not to offer contradictory evidence. 29 The Commission has before it a case sufficiently convincing to draw a reasonable inference as to the reasons for dismissal consistent with the applicant's case. There was a very clear unfairness in the dismissal of an employee and in precise terms of the Act, there is no doubt that what the applicant has put to the Commission amounts to a harsh, unjust and unreasonable dismissal. There is also no doubt that the procedure adopted by Mr Stubbing, who it appears is a senior official of the respondent, was also grossly unfair. There was no procedural fairness whatever and Mr Stubbing relied upon some very bad advice when he told the applicant that because the applicant was what he described as a casual, that he had no right to know the reason for his dismissal. Clearly the real reasons for his dismissal were, I am convinced, by the applicant's evidence, related to his persistence with the pursuit of his industrial rights. 30 All indications support that there was a dismissal contrary to the respondent's claim before Patterson C, especially given that no effort was made to suggest otherwise to the applicant, who wrote only a few days later regarding union advice he had received. 31 The Commission notes that the evidence includes the fact that there was an effort by Mr Kekatos to have him accept cash payments and that the applicant's pursuit then of his award increase was obviously something which the respondent was not comfortable with. It is also very clear that the respondent made no efforts to properly conduct itself in regard to superannuation payments. Whilst this Commission has no jurisdiction over such, as was readily accepted by the applicant in the conciliation phase of these proceedings, therein lies the catalyst for the applicant's dismissal. There was further, no effort by the respondent to respond to phone calls made on a regular basis to the respondent and their answer finally to those overtures was to dismiss him. 32 Such a dismissal is of the worst category. Apart from anything else, employers such as this respondent should not be allowed to gain the commercial advantage over its competitors by breaching industrial instruments and ignoring statutory obligations and dismissing anyone who complains. One is reminded of the classic phrase used of late, that certain new industrial laws might result in "a race to the bottom" in providing conditions for employees. Hopefully this is not a precursor of the type of treatment of employees in the security industry, which this member of the Commission has already struck on a number of occasions in recent times. 33 The applicant appears to have been also victimised in terms of s 210 of the Industrial Relations Act NSW 1996 and I am mindful of subsection (e) of that section and subsection (f). Subsection (e) says that following on from the opening words of that s 210(1), which reads "An employer or industrial organisation must not victimise an employee or prospective employee " - (e);" because the person claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument". Now, the Commission has accepted that there was a significant delay by the respondent to pay on time the outstanding amounts of the award, and whilst superannuation is governed by a separate statute, there were sufficient reasons for the applicant's pursuit of underpayments of wages to convince the Commission that that was another reason for his dismissal, that is, his entitlement under an industrial instrument. If subsection (e) was not enough, subsection (f) is broader and requires that an employer or an industrial organisation must not victimise an employee or a prospective employee because the person, under subsection (f) "informs any person of an alleged breach by an employer of an industrial relations legislation or of an industrial instrument". 34 So again whilst the superannuation may or may not be classified as industrial relations legislation, there was certainly pursuit by the applicant of his underpayments of wages, which clearly, whilst finally met, were delayed and, combined with his insistence upon the provision of pay slips and underpayments of wages, resulted in his dismissal for the reasons I've already stated. 35 However, given the lack of formal application or sufficient notice of an application under Section 210, I believe I should not make a separate award for victimisation that I might otherwise make in view of the circumstances of the applicant's dismissal. Commission restricts itself by drawing attention to the apparent breach of Section 210, which reinforces the extent of the unfairness of this dismissal. 36 The Commission has heard evidence from the applicant as to his efforts to procure other employment and those efforts were reasonably extensive. The applicant was forced to have two security jobs because of the changes of ownership along the way and he gave evidence of his obligations in respect to the payment of rent and other expenses, which he believed should attract a finding of maximum compensation. The applicant asked the Commission to consider a fall back position of 17 weeks, being the time up to date of his loss. He also gave evidence of the potential greater loss from the inability to procure other employment and the Commission also heard evidence from the applicant that he may well have been offered alternative work upon the cessation of a particular contract on tomorrows date, 26th September, under which he was employed at Menai. 37 It seems to this member of the Commission, that his loss might well be ongoing and should not be restricted to the fact that the respondent's contract at Menai ceased tomorrow, 26 September. 38 Having regard to the particular reasons for the applicant's dismissal, serious in respect of being a most unworthy reason for dismissal, the applicant has been well and truly unfairly dismissed in terms of the words of the Act - harshly, unjustly and unreasonably. 39 The mean-spirited nature of the respondent towards the applicant even extended to not paying wages due upon termination until the second conciliation conference, but also in the cashing in of one of his cheques sent in compliance with the regulation to cover travel expenses associated with a required attendance in observance of a Summons to Produce, even though they did not attend, never produced the material and offered no explanation. 40 I see no reason why the applicant ought not be granted the maximum compensation under Section 89 Subsection (5) within 21 days of this decision, and that maximum compensation is based upon the claim of the applicant of receiving $509.48 per week. The compensation to be paid by A.C.T.S. Security Pty Ltd to Mr Aldo Maestrale therefore is an amount of $13,246 within 21 days of this decision. JP MURPHY Commissioner oOo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.