Cossini v Howpeth Pty Limited Trading As Fishermen's Wharf Seafoods [2006] NSWIRComm 119

Industrial Relations Commission of New South Wales

CITATION: Cossini v Howpeth Pty Limited Trading As Fishermen's Wharf Seafoods [2006] NSWIRComm 119

APPLICANT PARTIES: Patricia Cossini RESPONDENT Howpeth Pty Limited T/As Fishermen's Wharf Seafoods

FILE NUMBER(S): IRC 4261 of 2005

CORAM: Harrison DP

CATCHWORDS: Termination of employment - failure to disclose work injury - failure to disclose worker's compensation claim on application for employment Held - termination of employment not harsh, unreasonable or unjust

LEGISLATION CITED: Industrial Relations Act 1996

Hollingsworth v Commissioner of Police (No 2) 88 IR 282 Bell v Lever Brothers Ltd 1932 AC 15 CASES CITED: Commissioner of Police v Hollingsworth 77 IR 339 Gordon and Gotch (Australasia) Ltd v Cox (1923) 31 CLR 370 "The Employee's Right to Silence" (1983) 57 ALJ 607.

HEARING DATES: 16/2/06

DATE OF JUDGMENT: 04/10/2006

APPLICANT Solicitor Mr G Archer LEGAL REPRESENTATIVES:

RESPONDENT Mr P Hofbauer

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Monday, 10 April 2006

Matter No IRC 4261 of 2005

PATRICIA COSSINI AND HOWPETH PTY LIMITED T/AS FISHERMEN'S WHARF SEAFOODS

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

JUDGMENT

[2006] NSWIRComm 119

1 Ms Patricia Cossini ("the Applicant") commenced employment with Howpeth Pty Limited trading as Fishermen's Wharf Seafoods ("the Respondent") on 1 December 2004. Ms Cossini's employment was terminated by the Respondent on 7 August 2005. 2 The application in this matter was filed on 15 August 2005 and was subject to conciliation on 16 September 2005 which resulted in directions for arbitration scheduled for 15 December 2005. Those proceedings were subsequently deferred by agreement of the parties due to pressing commercial circumstances arising from the pre-Christmas trading period. The matter was subject to hearing on 16 February 2006. 3 Mr G Archer, solicitor of Archer and Archer, appeared on behalf of and brought evidence from the Applicant; and Ms Julieanne Miller, an employee of the Respondent from 28 December 2004 until a date in early August 2005. 4 Mr P Hofbauer, the Principle of the Respondent appeared on his own behalf. Mr Hofbauer gave evidence and was subject to cross examination by Mr Archer. Mr Hofbauer also brought evidence from Ms J Spears employed as Financial Controller by the Respondent. 5 Fishermen's Wharf Seafoods is a retail and wholesale seafood business operating at Nelson Bay for the past 17 years. Mr Hofbauer's evidence is that the business employs 25 staff in a permanent and casual capacity, working in customer service and back of house areas. 6 The Applicant described herself as the Assistant Manager of the retail fish and chip section known as Bub's Takeaway. 7 Mr Hofbauer deposed that the Applicant was employed as a cook/manager, with responsibility for rostering, purchasing and general cleanliness of the kitchen premises. There is no real dispute between the parties of the duties required of the Applicant. 8 The Applicant's employment was terminated by correspondence dated 1 August 2005 in the following terms: 1st August 2005