Lukey v Stage 1 Enterprises Pty Ltd t.as Advantage Marine [2006] NSWIRComm 1086

Industrial Relations Commission of New South Wales

CITATION: Lukey v Stage 1 Enterprises Pty Ltd t.as Advantage Marine [2006] NSWIRComm 1086

APPLICANT Alan Lukey PARTIES: RESPONDENT Stage 1 Enterprises Pty Ltd t/as Advantage Marine

FILE NUMBER(S): 400 of 2006

CORAM: McLeay C

CATCHWORDS: Unfair dismissal, spare parts interpreter, no appearance by respondent, dismissed by phone, no prior warnings, no sound reason, dismissal harsh and unreasonable, orders made

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 22/05/06

DATE OF JUDGMENT: 05/22/2006

APPLICANT Mr G Henniker, solicitor LEGAL REPRESENTATIVES: Hennikers Solicitors

RESPONDENT No appearance for or by the respondent

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: McLEAY C

22 May 2006

Matter No IRC 400 of 2006

Alan Lukey and Stage 1 Enterprises Pty Ltd t/as Advantage Marine

Application by Alan Lukey re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

[2006] NSWIRComm 1086

1 This is an application by Alan Lukey for unfair dismissal by Stage 1 Enterprises Pty Ltd t/as Advantage Marine pursuant to section 84 of the Industrial Relations Act 1996. The application shows that Mr Lukey was dismissed from the position of spare parts interpreter on 6 January 2006, having been employed by the respondent since 15 August 2005. 2 Mr Lukey said that he had left work ill on 5 January to visit the doctor. When he rang his employer, Todd Boaer, early on 6 June he was told that he was dismissed because he had not ordered some parts that were required. Mr Lukey said he had ordered them, but the supplier had a problem with his deliveries. Mr Lukey stated that Mr Boaer then said: It doesn't matter; we are letting you go anyway. It's lucky you aren't here because I have punched a hole in the cupboard and I would punch you if you were here. 3 Subsequently, Mr Lukey was paid a week's wages in lieu of notice. 4 Mr Lukey gave evidence that he had not been given any warnings in regard to his employment being terminated, either formally or informally, throughout the period of his employment. He conceded that he had been asked to improve his performance in regard to four matters such as chasing up parts. 5 Mr Lukey said that he had been employed on contract for three months which was then extended for a further period. The employment then continued without a written contract or agreement until the time of the dismissal. 6 Ms Allbut supported Mr Lukey's statements about the way in which his employment was terminated. She had seen that he had been ill and had accompanied him to the doctor. She had heard the conversation between Mr Lukey and Mr Boaer on 6 January because Mr Lukey had switched the telephone onto speaker. 7 Mr Lukey has not been employed since his dismissal. He has applied for a number of positions and has registered as unemployed. 8 Mr Henniker for the applicant submitted that the dismissal was unfair because: 1. The dismissal was done by telephone. 2. No good reason was provided. 3. No prior warnings or notifications had been given either formally or informally. 9 I can only conclude that Mr Lukey's dismissal was unfair on the grounds set out by Mr Henniker. However I take into consideration the brief period of employment and the fact that the usual probationary period of three months was extended by one month. It is reasonable to infer from this short extension that there were reasons to extend the probationary period. The employment was not confirmed as ongoing, suggesting that Mr Lukey's performance or conduct was not entirely satisfactory. 10 In the absence of any appearance on behalf of the respondent during the proceedings, there is no evidence to refute Mr Lukey's claims or to substantiate the termination of his employment. 11 In considering the evidence before me I find that the termination of the applicant's employment was harsh and unreasonable. I make the following orders. ORDERS 1. I order that the respondent pay to the applicant the sum of $3360.24 being six weeks' wages at the rate of $560.04. 2. I order that the amount shown in order 1 be paid within 21 days of the date of this Decision being 22 May 2006.