Gail Elizabeth Farrar & AMFU v David Brownlow [1995] IRCA 362

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INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VI 1511 of 1995

B E T W E E N :

GAIL ELIZABETH FARRAR & AMFU

Applicant

AND

DAVID BROWNLOW

Respondent

Before: Judicial Registrar Fleming

Place: Melbourne

Date: 10 August 1995

REASONS FOR DECISION

Background

The Respondent is Mr David Brownlow who is Managing Director of Hawker Brownlow Education Pty Ltd which he founded in 1979. The company has four divisions; Hawker Brownlow Education, Hawker Brownlow Curriculum Services, Learner’s World and Wiltshires. The company among other things is a publishing company which prints educational books and manufactures educational games and toys. It supplies schools and has a staff of 32 at its Highett premises.

Employment History

The Applicant Ms Farrar, was employed in the Hawker Brownlow Education Division of the company. She commenced employment on 7 June 1991 as a casual store person. Her hours were 7.30am to 4.00pm Monday to Thursday and on Friday 7.30am to 12.00 noon.

In August 1991 she was offered the position of book binder in the print room. Her hours were changed to 8.00am to 4.00pm Monday to Thursday and 8.00am to 12.00 noon on Friday. She was working 32 hours per week and paid a casual rate of $11.61 per hour.

In October 1991 the Applicant was offered 5 full days work and commenced working 5 full days.

In October 1992 as Ms Farrar believed that she would be required to sign an employment contract she joined the Union and in December 1992 she was asked to sign the employment contract (Exhibit A) which she did on 23 December 1992.

Ms Farrar was a productive worker and Mrs Brownlow commented to Ms Farrar in December 1992 that “she had never been so happy with that department”. Ms Farrar assisted the employer during her holidays in January 1993 by an early return to work to assist with the greater volume of work at that time.

From the time Ms Farrar signed the employment contract in December 1992 she was working 40 hours per week. She sought the help of the Union as she believed she was only being paid for a 38 hour week. The P.K.I.U. conducted a wages investigation in September 1993 (Exhibit B) however apart from confirming a shortfall in pay of $177.30 the Union was unable to conduct its investigation because the Respondent’s records “are not clear and there are no starting and finishing times or clock cards - the company maintained that they don’t use a time system”. The Union suggested Ms Farrar “keep notes on your starting and finishing times, plus overtime, as they maintain you only work a 38 hour week and not 40 hours.”

In October 1993 Ms Farrar was advised that she would be given a pay rise of about $14.00 so that her gross pay was to be $417.00 per week. From October 1993 until July 1994 Ms Farrar continued to work a 40 hour week.

Events Leading up to Termination

On 3 July 1994 Mr Jackson from the Union rang her and said he would attend at her place of work the next day. On 4 July 1994 Ms Farrar was instructed by Mr Francis, the office manager to go to Mr Brownlow’s office. Ms Farrar attended at the office. Present were Mr Brownlow, Mr Francis and Mrs Brownlow. Ms Farrar asked the whereabouts of the Union representative, Mr Jackson and was told he had been held up in Altona and that he would not be attending.

Mr Brownlow told Ms Farrar to sit down and he read a letter to her (Exhibit C).

Mr Brownlow refused Ms Farrar’s request that the letter be handed to her but rather read it out to her. I accept that Ms Farrar felt intimidated by Mr Brownlow and said to him “why don’t you just sack me”. Mrs Brownlow said “is that what you want” and then Mr Brownlow intervened. Mr Brownlow said to Ms Farrar “how dare you say what hours you are going to work” and he asked Ms Farrar why had it taken her so long to complain. Ms Farrar, who had been concerned about her employer’s reaction to the Union involvement on her behalf and, had asked the Union not to identify her, did not say that the reason she did not complain to Brownlow was due to her fear of reprisals by him.

Mr Brownlow handed her the letter which detailed the compensation she was to be paid as result of the Union investigation into the shortfall of her wages. She was given no choice but was told in this letter that the compensation due her was 17.5 days pay. She was told in the letter that the pay would be given to her as additional paid leave.

“this leave will be taken as follows:-

12 days paid leave commencing on July 7 and recommencing Monday 25 July 1994. 5.5 days taken at Christmas 1994/95 with four weeks leave”.

Although Mr Brownlow refers to the offer of leave as an“invitation” (see Commissioner Peterson transcript page 15) it is clear from this letter that Ms Farrar had no choice and was required to take the leave as stated.

After handing Ms Farrar this letter she was told she would not be welcome to attend the company stocktake drinks scheduled for that afternoon. The evidence is contradictory in relation to the stocktake drinks. Mr Brownlow stated that only those involved in the stocktake were invited. I prefer the evidence however of Ms Farrar that it was her belief that all staff were invited.

After her leave Ms Farrar returned to work on 25 July 1994. When she clocked on a woman by the name Ms Neville approached her and said that she was now doing Ms Farrar’s job. Two or three hours later Ms Farrar was approached by Mr Brownlow who told her when she was finished what she was doing that she would go to the Paint Department and work there from then on. Ms Farrar was not told why she was transferred. Her supervisor there was Mr Murdoch.

Ms Farrar described the Paint Department as “the pits... it was extremely cold in the winter, bitterly cold, no heating, concrete floor, no ventilation”.

Ms Farrar described her duties:-

“I had to make tattoo paint and put it in tubes. I had it all over me. I had two second hand dust coats that I laundered myself. I poured powder paints. I had a paper mask. Brian McMahon got better masks for us. I cleaned buckets with turps and rinsed with water, I made up kits”.

Ms Farrar worked in the Paint Department for the next five or so months. There were no complaints by her supervisor Mr Murdoch about her performance. Mr Brownlow gave evidence that the reason for Ms Farrar’s transfer to the Paint Department was because of a complaint by Ms Kempton that Ms Farrar was causing a lot of trouble. Ms Kempton gave similar evidence that Ms Farrar was discussing the union while she was in the Printing Department. Mr Brownlow said prior to this Ms Kempton had never complained about Ms Farrar. Mr Brownlow said that Ms Farrar’s transfer would be on the same salary and conditions. Mr Brownlow had asserted that the Paint Department is not a division of the Respondent which attracts the P.K.I.U. award however the Printing Department is. Mr Brownlow’s evidence was, when Ms Farrar was transferred, she reverted to the employment contract conditions as opposed to the Award and in the contract the leave loading was factored in.

Ms Farrar was never advised as to the reason why she was transferred from the Printing Department to the Paint Department but it is this court’s view that Ms Farrar saw the transfer as a demotion.

In September 1994 Ms Farrar developed shingles. She was completely stressed and on doctor’s advice had seven days sick leave.

On 20 December 1994 Ms Farrar made an enquiry about her leave loading and Mr Brownlow stated that it was factored into her wage as stated in the employment contract and that the award did not apply to her in the Paint Department. Mr Brownlow gave evidence that he had a conversation with Mr Jackson and Mr Jackson gave evidence that Mr Brownlow accused him of not following correct procedures. I am satisfied that the union did follow correct procedures.

On 19 January 1995 Commissioner Peterson heard a dispute involving Mr Brownlow and the P.K.I.U. in relation to wages and conditions wherein Ms Farrar’s entitlements were discussed. Commissioner Peterson adjourned this proceeding into private conference and negotiations continued between Mr Jackson of the Union and Mr Brownlow. It was Mr Jackson’s evidence that Commissioner Peterson had made a recommendation that the Respondent pay leave loading due to Mrs Farrar. It was Mr Brownlow’s evidence that no such recommendation was made. In any event Mr Brownlow gave evidence that he paid the leave loading.

The Termination

The catalyst for the termination occurred on 22 December 1994

“break-up day” at the factory. Ms Farrar understood production would cease at 12.00 noon and Mr Brownlow gave evidence confirming that that was the scheduled shut down time. The pays however were held up and Mr Brownlow gave evidence that there was a problem with the cheque which resulted in production in the factory not ceasing until

1.20 pm. After receiving her pay at about 1.20 pm, she left the premises. She believed she was unwelcome at the Christmas party after the events of the “stocktake party”.

During her holidays Ms Farrar received a handwritten note from Mr Brownlow marked Exhibit D. The note is dated 23 January 1994 however the evidence is clear that the correct date it was written was 23 December 1994. I will set it out in its entirety:-

“Gail,

On Thursday December 22 you left your place of employment at or around 1.00 pm and failed to return.

Please explain why you absented yourself from your work without permission and explain why you should not be dismissed for this action.

Have your reply in writing on my desk by January 9, 1995.

David Brownlow”

Ms Farrar responded to this letter on 5 January 1995:-

“Dear David,

As I was away a relative received and signed for your letter dated 23 December 1994.

In answer to your queries, I was informed that production was to cease at 12.00 noon, this then changed to 1.00pm and the pays arrived at 1.20pm. Since I was unaware that I had to attend a social function I left.

Yours sincerely

Gail Farrar”.

Ms Farrar wrote this letter on advice from her Union adviser Jill O’Brien whom she telephoned on 24 December 1994.

On 30 January 1995 Ms Farrar returned to work and on Wednesday 1 February 1995 she was called to Mr Brownlow’s office. Present in the office was Mr Brownlow, Mrs Brownlow and Mr Francis. Ms Farrar again asked the whereabouts of her Union representative Mr Jackson and Mr Brownlow said he would not be attending. Mr Brownlow’s evidence was that it did not seem appropriate at this meeting for Ms Farrar to have a witness of her own there and he said “it was my prerogative”.

Mr Brownlow then read from a letter he held in his hand which was dated 1 February 1995 (Exhibit F). Ms Farrar said ‘just give me the letter” and her evidence was she felt intimidated as Mr Brownlow is a “forceful man”. She said she could not take it all in. Mr Brownlow’s evidence was that she became more and more agitated.

Ms Farrar said after the letter was read by Mr Brownlow that she felt that she did not have an opportunity to put her side. She said “Mr Brownlow is so arrogant I had to just sit there and listen to it”. She said she felt terrible after the meeting and she did not work on 2 February or 3 February.

The letter of 1 February 1995 is a critical document and I have set it out in its entirety:-

“Mrs Gail Farrar 1st February 1995

1363 Nepean Highway

Cheltenham VIC 3192

Dear Gail,

1. The Answer supplied in your letter of 5/1/94 is not accepted.

For being absent from your duties without permission you will be docked a half days pay. The Company allocated $25 per head for the Christmas luncheon. Since your attendance was catered for you will have the $25 also deducted from your pay. You are hereby officially warned that a repeat of this action will result in the termination of your employment.

2. This is to also officially inform you that your attitude to the Management, and to your work is unsatisfactory. I have had complaints from Staff about your anti-management and staff disruptive behaviour.

You are not an elected Union Official and you are to cease purporting to represent the Staff’s interests on matters of wages and conditions. All Staff who have wages or employment conditions concerns are to raise them initially with their supervisor or failing satisfactory resolution, with either Elaine or myself.

I have also had a complaint from a staff member who was extremely upset after you allegedly informed her that she was going to lose her job. Should I receive one more such complaint from any staff member, your position with this Company will be terminated.

3. Smoking during working hours. As you know there is no smoking in the building. However you have been absenting yourself from your workplace and smoking outside the staff lunchroom during normal work hours. This is to stop immediately. Should you do this again your position with this Company will be reviewed.

4. Work practices. Over the last six months I have received reports from your Supervisor about your general attitude to your work and, at times, unsatisfactory attention to your duties and a general reduction in your work output. Unless there is a significant improvement in all these areas within the next month your position with the company will be terminated.

5. Change of Work Hours.

Commencing Thursday 2nd February, your hours of work are to be reduced. This is due to a reduction in the amount of business, necessitating a rationalisation of all Staff working conditions. Your hours of work will be from now on 8.00am - 12.00 Monday to Friday. Your current hourly rate will be maintained and all appropriate conditions will apply.

Yours sincerely,

David Brownlow

Managing Director”

In his evidence Mr Brownlow said he read the letter but he did not put the specifics of each point raised therein to Ms Farrar and Ms Farrar’s evidence was she had no opportunity to respond. She was also in a state of agitation which was clear to Mr Brownlow.

Ms Farrar gave evidence that she did not know how she got home on the evening of 1 February 1995 as she was extremely upset. She telephoned Mr Jackson who advised her to go straight to the doctor and two of her friends assisted her. When she saw her doctor she was referred to a psychologist immediately but she could not get an appointment with the psychologist until Monday at 1.30pm.

On Monday 6 February Ms Farrar saw a psychologist and returned to work on 7 February with a certificate marked Exhibit I. The medical certificate incorrectly stated Ms Farrar was unfit for any work duties on 7 February (whereas it should have said 6 February which was the Monday).

Ms Farrar was called into Mr Brownlow’s office again on 7 February. She refused to attend without her Union representative. Mr Brownlow said that when he asked Ms Farrar to attend his office she said “I won’t come to your office and be abused. I want my Union representative there”. Mr Brownlow asked are you refusing a lawful instruction and that if she was then she had three options. His evidence was that he did not say Ms Farrar was sacked on this occasion however he did say she had three options, the three options were: to take a package, resign or you are to be sacked. Ms Farrar’s evidence was that he said “you’re sacked” after giving her the three options. As Ms Farrar walked out of the factory in tears Mr Brownlow approached her again and said “I’ll see you in the tea room”. It was in the tea room that Mr Brownlow pointed out the error in the medical certificate. At this time Ms Farrar said “you’ll never break my spirit”.

Ms Farrar went to the doctor and had the medical certificate corrected and at 5.00pm Mr Jackson met with Ms Farrar. Mr Jackson said it was not usual to visit a member at home but that as Ms Farrar was so upset he made an exception.

Mr Jackson advised Ms Farrar to return to work with the corrected certificate and on 8 February she went back to work with the certificate. She arrived at 7.45am and she waited outside for her supervisor Mr Murdoch to hand in the certificate. When he arrived at 7.55am he said “As far as I am concerned you can come in and work”. Ms Farrar said to Mr Murdoch “I have been sacked”. Mr Murdoch did not corroborate the evidence of Ms Farrar in this respect.

Mr Brownlow then arrived and said to Ms Farrar “you and I will have a little talk”. Ms Farrar said “no” and then asked if Maureen Pond could be a witness. It is Ms Pond’s evidence that she was asked by Ms Farrar the night before to be a witness if one was required. Mr Brownlow went to get Ms Pond and there was a meeting in Mr Brownlow’s office with Ms Pond, Ms Farrar and Mr Brownlow present.

At this meeting Mr Brownlow went over the commission documents and said that there was a breakdown between Ms Farrar and the company. Mr Brownlow referred to Ms Farrar as a “woman” and Ms Farrar referred to this as being a derogatory comment given the tone and the way it was said. Mr Brownlow apparently acknowledged that because later he apologised for that comment. Mr Brownlow produced the contract of employment relating to Ms Farrar. Ms Farrar said “she couldn’t take any more” and that Mr Brownlow had sacked her yesterday. Mr Brownlow denied “sacking” her the day before.

The meeting concluded and Ms Farrar asked Mr Brownlow to post her separation certificate and termination pay. Ms Farrar denied that she voluntarily ceased work as stated on her separation certificate.

The evidence of Mr Brownlow and Ms Farrar is conflicting in relation to what occurred on 6 February 1995 and 7 February 1995. Mr Brownlow says he gave Ms Farrar three options; resign, take a package or be dismissed. Ms Farrar says she was sacked.

Constructive Dismissal

Mr Brownlow by way of letter dated 1 February purported to change Ms Farrar’s work hours and it is on this date that her termination of employment has occurred. Paragraph 5 of that letter states “Commencing Thursday the 2nd of February, your hours of work are to be reduced. This is due to a reduction in the amount of the business, necessitating a rationalisation of all staff working conditions. Your hours of work will be from now on 8.00 am to 12.00 Monday to Friday. Your current hourly rate will be maintained and all appropriate conditions will apply.”

This change in the work contract amounts to a repudiatory breach by the employer of the employment contract. It reduces by half Ms Farrar’s hours of work and it purports to do so unilaterally.

In Western Excavating (E.C.C.) Limited v Sharp 1978 I QB reports at 761 that Lord Denning MR at page 769 states:-

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employee’s conduct he is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or alternatively, he may give notice say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover he must make up his mind soon after the conduct of which he complains for if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

I am satisfied that as a result of the letter of 1 February 1995 Ms Farrar’s employment was terminated as at that date. There is nothing in the evidence to indicate that she has elected to affirm the purported new employment contract quite to contrary, she has gone home in what seems to the Court to have been a state of shock as a result of being told of her new conditions of employment.

Section 170DE(1)

The reason for the change to the employment contract as alleged by the Respondent is that Ms Farrar’s hours have been reduced by half “due to a reduction in the amount of business necessitating a rationalisation of all staff working conditions”.

Section 170DE(1) of the Act prohibits an employer from terminating an employees employment

“unless there is a valid reason, or valid reasons, connected with the employees capacity or conduct or based on the operational requirements of the undertaking, establishment or service”.

Sub-section (2) says a

“reason is not valid if, having regard to the employee’s capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable.”

Section 170EDA(1) of the Act deals with the onus of proof in respect of a claim under s.170DE(1).

S.170EDA(1)

“If an application under s.170EA alleges that a termination of employment of an employee contravened subsection 170DE(1):

(a) the termination is taken to have contravened subsection 170DE(1) unless the employer proves that, apart from subsection 170DE(2), there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE(1); and

(b) if the employer so proves, the termination is nevertheless taken to have contravened subsection 170DE(1) if the applicant provides that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid.”

The Respondent has been unsuccessful in discharging its burden of proof. There was no evidence produced to satisfy me that the Respondent was experiencing a reduction in business. The only material produced by the Respondent in support of its assertion of a downturn in business was Exhibit 3, a particularly unhelpful document the source of which was not produced. It provides no comparison with other years and is of little assistance to the Court.

Mr Brownlow gave evidence that Exhibit 3 shows that the company was in some difficulties. He also stated that in January and February there is a naturally occurring downturn (because it is school holidays). Mr Murdoch’s evidence was that in the last six months of 1994 “we were building up and hadn’t reached a satisfactory level yet”. In view of the conflicting and unsatisfactory evidence in relation to the alleged downturn in business of the Respondent I have concluded that there was no valid reason for the termination of employment of Ms Farrar and that the termination was substantially unfair.

Section 170DF(1)

S.170DF(1)

“An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

(b) union membership or participation in union activities outside working hours or, with the employer’s consent, during working hours;”

In my view there is a strong inference that the Respondent has terminated the employment of Ms Farrar as a result of her Union involvement. Mr Brownlow’s evidence was that “she had taken a view that she was protected by the Union and therefore could insert them between her and me any time she liked. You can’t run a business like that.” And earlier in his evidence he stated “I am finding it difficult to have a relationship with someone who insisted on having a Union representative or witness every time I needed to talk.”

Ms Farrar gave evidence that she concealed her union membership from Mr Brownlow as she feared reprisals and also she requested the union not to reveal her when conducting it’s enquiries.

Prior to July 1994 the employment relationship between Ms Farrar and Mr Brownlow was uneventful. From 5 July 1994 Mr Brownlow was aware of Ms Farrar’s involvement with the union. He had been instructed to pay compensation as referred to in Exhibit C to Ms Farrar for the extra two hours per week she had worked since the Award applied. From July 1994 the following events occurred:

· excluded from stocktake party

· transferred without explanation to a department that, arguably, does not attract the Award

· docked half days pay plus catering costs for non-attendance at Christmas party

· initially denied the contentious holiday leave loading (see Exhibit N)

· work hours reduced by half and formally warned (see Exhibit F)

I conclude from the evidence before me that the Respondent has breached s.170DF(1)(b) of the Act.

Section 170DC

Ms Farrar gave evidence that on at least two or three occasions she was called to Mr Brownlow’s office and she felt intimidated. She asked where her Union representative was and she was told he was unavailable. The meetings proceeded in the absence of the Union representative and it is clear from Ms Farrar’s evidence that she felt at a disadvantage. In relation to the meeting of 1 February 1995 wherein the contents of Exhibit F were read to her she was denied the opportunity to have her Union representative there. Given the history of this matter common sense would surely dictate to Mr Brownlow that the meeting should have been scheduled at a time when a representative of the Union could attend or at the very least Ms Farrar could have a witness of her choosing present.

In the letter of 1 February 1995 (Exhibit F) five matters were detailed. The first matter that was put to her was in relation to the Christmas party that she failed to attend. She was told that she would be docked half a day’s pay for not attending and also that she would be docked the $25.00 per head that it had cost the Respondent to have the function catered. She was also officially warned that a repeat of this action would result in the termination of her employment.

The second item in this letter was in relation to her attitude to the management. Ms Farrar gave evidence that it was not specified to her what this meant and that she had never had a complaint about her work performance or her attitude in relation to management. This was the first occasion that she had heard about the complaint from other staff about her “disruptive” behaviour. It may be Mr Brownlow was referring here to Ms Kempton’s request in July of 1994 for Ms Farrar’s transfer however Mr Brownlow’s evidence was that he did not tell Ms Farrar the reason for her transfer in July of 1994 but merely transferred her without explanation. The complaint in Paragraph 2 of the letter also refers to the fact that Ms Farrar is not an elected Union official and she must cease purporting to represent the staff’s interest of matters of wages and conditions. In her evidence Ms Farrar denied that she was doing this however she stated that she was in so much shock on 1 February that she did not say very much.

Paragraph 2 of Exhibit F also refers to a complaint by a staff member “who was extremely upset after you allegedly informed her that she was going to lose her job.” I accept the evidence of Ms Farrar that this was never put to Ms Farrar except on occasion of 1 February 1995 and that she did not know who, or what were the specifics of this incident.

In relation to item 3 in Exhibit F the complaint of smoking was not put to Ms Farrar prior to 1 February 1995 and she was not formally warned that her position would be reviewed if this alleged behaviour continued until 1 February 1995.

In relation to Paragraph 4 of Exhibit F and headed Work Practices “over the last six months I have received reports from your supervisor about your general attitude to your work and, at times, unsatisfactory attention to your duties and your general reduction in your work output. Unless there is a significant improvement in all these areas within the next month your position with the company will be terminated”. As stated earlier Ms Farrar had never before had a complaint about her work performance. Mr Murdoch gave uncontested evidence that as her supervisor over the last six months, that is in the last six months of 1994, he had no complaint about her performance or her attitude. This allegation in paragraph 4 of Exhibit F is totally unsubstantiated.

In Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 at 243 Wilcox CJ discussed the significance of s.170DC. Ordinarily, an employee before his/her employment is terminated, must be told of the specific matters that are putting at risk his/her employment so that he/she is given an adequate opportunity to respond. The section as discussed by his Honour does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the employee is treated fairly.

Mr Brownlow denied Ms Farrar the opportunity to respond or to have someone respond on her behalf. She was not given the specifics of the allegations set out in the letter of 1 February 1995, she was not given a “fair go”. Accordingly, the Respondent is in breach of s.170DC.

In all the circumstances the termination of Ms Farrar’s employment was harsh, unjust and unreasonable for the reasons stated above and also in view of Ms Farrar’s age (she is 49 years old) and limited job prospects.

Remedy

The Applicant does not seek reinstatement and even if she did I would not order it as it is my view impracticable given the complete breakdown of the employment relationship between Mr Brownlow and Ms Farrar. Accordingly I make an order that the Respondent pay to the Applicant compensation in the order of six months wages and I calculate that to be $10,200.00.

I further order that the Respondent pay to the Applicant $1,700.00 which represents one months pay in lieu of notice.

I further order that these payments be made within 21 days of today’s date.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the Respondent pay to the Applicant compensation of six months wages calculated to be $10,200.00.

2. Further, that the Respondent pay to the Applicant $1,700.00 which represents one months pay in lieu of notice.

3. That these payments be made within 21 days of today’s date.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding twenty one (21) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.

Associate:

Dated: 10 August 1995

Representative for the Applicant: Mark Perica from Vehicle Division of AMWU.

Respondent in person.

Date of hearing: 13, 14 & 15 June 1995

Date of judgment: 10 August 1995

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - CONSTRUCTIVE DISMISSAL - whether VALID REASON FOR TERMINATION - whether PROCEDURAL FAIRNESS.

Industrial Relations Act 1988 ss.170DC, 170 DE, 170DF, 170EA &

170EE.

CASES:

Western Excavating (E.C.C.) Ltd v Sharp (1978) 1 QB 761

In Re Michaelis Bayley Trading Co. and N.S.W. Sales Representatives and Commercial Travellers’ Guild (1979) AIR 393

Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233

GAIL ELIZABETH FARRAR & AMFU -v- DAVID BROWNLOW

No. VI 1511 of 1995