DECISION NO:73/97
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether VALID REASON - whether applicant given OPPORTUNITY TO RESPOND - COMPENSATION.
Workplace Relations Act 1996 (formerly Industrial Relations Act 1988) Ss 170DC, 170DB, 170EA,
Jones v Dunkel (1995) 101 CLR 298
Mavrelis v GJ & K Cleaning Services Pty Ltd (Industrial Relations Court of Australia No. 506 of 1996, Murphy JR, 20 September 1996, unreported)
Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199; 57 IR 50
Selvachandran v Petersen Plastics Pty Ltd (1995) 62 IR 371
Lindsay MEIKLE -v- MIKE BARNETT, KATHY BARNETT
and SEAFORD BEACH MOBILE HOME PARK
VI 1285 of 1996
BEFORE: R. D. FARRELL JR
PLACE: PERTH (heard in Melbourne)
DATE: 6 February 1997
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )
No. VI 1285 of 1996
BETWEEN:
Lindsay MEIKLE
Applicant
AND:
MIKE BARNETT, KATHY BARNETT
and SEAFORD BEACH MOBILE HOME PARK
Respondent
MINUTE OF ORDERS
BEFORE: R. D. FARRELL JR
PLACE: PERTH (heard in Melbourne)
DATE: 6 February 1997
THE COURT DECLARES AND ORDERS THAT:
1. The application against Mrs Kathy Barnett is dismissed.
2. The respondent, Mr Mike Barnett, has breached sections 170DB and 170DC of the Workplace Relations Act 1996.
3. The respondent, Mr Michael Barnett pay to the applicant within 21 days of the making of these orders the sum of $6000.00 in compensation with respect to the breach of section 170DC, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
4. The respondent Mr Michael Barnett pay to the applicant within 21 days of the date of making these orders the sum of $600.00 representing damages for breach of section 170DB, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
Note: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
VI 1285 of 1996
BETWEEN:
Lindsay MEIKLE
Applicant
AND:
MIKE BARNETT, KATHY BARNETT
and SEAFORD BEACH MOBILE HOME PARK
Respondents
REASONS FOR DECISION
(Delivered ex tempore - revised from transcript)
6 February 1997 R. D. FARRELL JR
This is an application pursuant to section 170EA of what was then the Industrial Relations Act 1988; now known as the Workplace Relations Act 1996. The application is for compensation arising from the alleged unlawful termination of the employment of the applicant, Mr Lindsay Meikle (“Mr Meikle”), by the respondents, Mike and Kathy Barnett (“Mr and Mrs Barnett”). It was not contended that reinstatement was practicable.
The employment the subject matter of the application was undertaken at the Seaford Beach Mobile Home Park (“the Park”). The Park was also listed as part of the “employer’s name” on the application form filed by Mr Meikle to initiate the proceedings. I should note that in the course of the hearing a question arose as to whether the relationship was an employment relationship rather than a contract for services. I have found that Mr Meikle was an employee; I discuss the reasons for that finding further below.
Mr Meikle answered an advertisement in a newspaper for a manager or caretaker for the Park. After a delay of some months, he was approached by Mr and Mrs Barnett in relation to that application and was invited to take up the position at the Park. The Court has heard evidence that the registered holder of the business name “Seaford Beach Mobile Home Park” is a company called Bengter Proprietary Limited. Mr Barnett is the sole director of that company but is not technically a shareholder of the company; it is owned by a trust.
However, Mr Meikle and his de facto wife, Ms Leith, were unaware of the existence of this company at the time their services were engaged. All their dealings were with Mr and Mrs Barnett. They completed no documentation in relation to the commencement of their employment. There was no written contract of employment of any sort and indeed when the time came for them to be paid for their services, they were paid in cash by Mr and Mrs Barnett. I accept that the payments in cash were taken directly from the takings of the Park. The Park received rent from its tenants, typically paid in cash. An amount was deducted for the payments to Mr Meikle and indeed to other workers at the Park. The remainder of the takings were then banked.
No record was shown to the Court evidencing the payments of wages, and there is no way of independently establishing the amount paid in wages. I have evidence from Mr Barnett that, initially, the remainder of the takings of the Park were banked in an account in the name of Bengter Pty Ltd. Had that continued, that would have been a weight in the scale in favour of a finding that Bengter Pty Ltd was the relevant employer. However, the initial period of employment came to an end with the resignation of Mr Meikle. He then spent four months working at another caravan park before ultimately agreeing to return to take over management of the Seaford Beach Mobile Home Park on a later occasion.
By the time of this second period of employment, the banking arrangements had changed. Mr Meikle began taking responsibility for the payment of the various amounts to himself and to other employees. Mr Barnett's evidence was that, due to complicating factors relating to Family Court proceedings which affected Bengter Pty Ltd, the takings of the Park were by then being paid into an bank account in the name of “Island Arch Pty Ltd and M.D. Barnett”. That factor, together with the fact that there was no evidence of Mr Meikle ever having been advised that his employer was other than Mr or Mrs Barnett leads me to conclude that Mr Mike Barnett can properly be held to be the employer of Mr Meikle.
However, I am not satisfied that there is sufficient evidence to hold that Kathy Barnett was an employer of Mr Meikle. Her participation in any negotiations to engage Mr Meikle is an ambiguous factor and does not necessarily mean that she had the status of his employer. Nor does her exercising control over Mr Meikle's employment confer that status, as the power to do so may have been delegated from Mr Barnett. Therefore, to the extent that the claim is directed to Kathy Barnett, I would dismiss it. The application remains on foot therefore solely against Mr Barnett.
With regard to the issue of whether or not there was an employment relationship, the complicating factor is the role played by Ms Leith, Mr Meikle's de facto wife, and the fact that there is no record setting out whether the payments which were made to Mr Meikle were payments to him alone, or to both of them, and if the latter, in which proportions.
It is clear from the evidence that Mr Meikle and Ms Leith worked as a team and that Ms Leith made a contribution to the running of the Park. However, Mr Meikle says that he wrote notes on the payments of wages he made during his second period of employment on slips of paper, and he would write it out as a payment of salary to him. These notes were not produced by Mr Barnett. There does not appear to have been any consideration, if the wages were to be split between the couple, as to the proportions in which they should be paid. While they were generally referred to as “manager” and “manageress”, Mr Meikle gave evidence to the effect that he ultimately made the final decisions.
As a consequence of the informality of this arrangement, it could be argued that the appropriate analysis is that Mr Meikle was paid an amount to manage the Park and that he was free to pay others to do part of his duties.
I do not consider that to be the appropriate analysis. In Mavrelis v GJ & K Cleaning Services Pty Ltd (IRCA No. 506 of 1996, unreported, Murphy JR, 20 September 1996) Judicial Registrar Murphy found that the employer in that case was aware of an arrangement whereby the applicant’s husband assisted her in performing cleaning work for the respondent. The employer had no difficulty with that arrangement being in place. It was held that that was not sufficient to make the relationship other than an employment relationship.
Similarly, I am satisfied on balance that this was an employment relationship, and that Mr Meikle was technically the sole employee, though it was recognised by Mr Barnett that some of Mr Meikle’s duties were in fact performed by Ms Leith under Mr Meikle’s supervision. A consequence of this arrangement is that, to the extent that Mr Meikle’s duties were not performed adequately, he is responsible for those shortcomings. If something went awry due to some failure on his defacto wife's part, then Mr Meikle could not avoid the responsibility for that.
As I understand it, it is not in contention between the parties that Mr Barnett acted to bring the employment relationship to an end in the course of a conversation on the morning of 18 January 1996. I therefore find that it has been established that there was a termination at the initiative of the employer.
The next issue to be determined is the question of whether or not there was a valid reason for the termination by Mr Barnett of Mr Meikle's employment. The onus on this matter rests with Mr Barnett by virtue of Section 170EDA(1) of the Act.
The events which Mr Barnett says gave rise to the decision to terminate Mr Meikle's employment happened over a year ago. A lot of detailed questions were asked and evidence was given about the minutiae of the events and the particular complaints which were involved.
I do not propose to deal with the evidence at that level of detail in these reasons for decision. The reason offered to the Court by Mr Barnett for the termination might fairly be summarised as an alleged consistent failure on the part of Mr Meikle to comply with the policies and procedures which Mr Barnett had established for the Park, notwithstanding the fact that Mr Meikle was aware of those policies and procedures and notwithstanding what Mr Barnett says were a number of warnings about the need to comply with particular procedures from time to time.
The evidence is that the patrons of the Park tended to be people of very limited means. There was reference in the evidence to the fact that they often relied upon grants from the Ministry of Housing in order to be able to meet the costs of the accommodation, and from time to time there were references in the evidence to tenants falling into arrears and otherwise being able to afford the accommodation.
The matters complained of by Mr Barnett, if they occurred, might be consistent with Mr Meikle tending to give the tenants the “benefit of the doubt”, in what was perhaps a compassionate response to the circumstances in which particular tenants found themselves from time to time. An example is Mr Meikle’s citing of the fact that tenants’ linen had been stolen from the clothes-line of the Park as an explanation for linen being provided to tenants without the collection of hire charges.
It seems that Mr Barnett's perspective on the matter, while it was not put in these terms, was that it was not appropriate for Mr Meikle to be making such compassionate decisions with Mr Barnett's money. While Mr Barnett might choose to waive fees from time to time, that was a matter for him and not for Mr Meikle.
There was some dispute before the Court as to the status of numerous entries in a message book. The purpose of the message book was for Mr Meikle, the other relief manager and Mr and Mrs Barnett to convey messages to each other in relation to the running of the Park.
I am satisfied that Mr Meikle was under an obligation to keep himself apprised of the matters in the message book. There was evidence that Ms Leith checked the message book from time to time as well, though it is likely that she did not have a responsibility to do so.
It was suggested that some of the particularly significant entries in the book had been added recently and were therefore not, in fact, seen by Mr Meikle. I have had an opportunity to look at the original message book. While it is the case that some of those particularly significant entries are found at the bottom of the page, I observe that the pattern displayed throughout the book is that pages were completed to the end of the page. In my view it is quite unlikely that whole entries of that significance have been added after the event. There are a number of things about the way in which those entries are made which lead me to that view, including the fact that in one case lines below the entry are drawn lower than you would expect them to be drawn if the entry was an “after the event” addition.
There are two of these entries of particular relevance. I consider them below. There are also a series of entries of less relevance or less significance which are bald statements of non-compliance with policies. Some of those are specifically addressed to Mr Meikle's attention, while others are just written in the book.
I do not propose to deal with these other entries individually, but I am satisfied that warnings, or at least incidents of non compliance and exhortations that they not recur, were drawn to the attention of both Mr Meikle and the other relief manager from time to time, by means of the message book. Some of them are directed specifically to Mr Meikle and indicate a conclusion having been drawn on the part of, usually, Mrs Barnett that Mr Meikle was responsible for non-compliance. Others of them are at large and are directed to both managers.
Turning to the more significant entries, on 6th November 1995, there is a note in the message book signed “per MDB”, which I understand to be a reference to Mr Barnett. It is in the following terms:
“Re our meeting, we accept your undertakings that park procedures will not be breached in our absence. Should you do so, dismissal will follow.”
Finally there are notes for 13 January 1996, again written by Mrs Barnett:
“Lindsay, you were warned before you went away about breaking park rules and procedures and you were told it would mean dismissal if you breached park rules and procedures again. The following breaches have come to our notice...”
The note goes on to list a number of breaches or perceived breaches.
Mrs Barnett did not give evidence. It would certainly have been preferable had she been called to give evidence. Were Mr Barnett legally represented, then I would have placed greater weight on the fact that Mrs Barnett was not called. However, I accept that Mr Barnett was probably ignorant of the potential implications of not calling Mrs Barnett, given the principle in Jones v Dunkel (1959) 101 CLR 298. There has been nothing said to suggest to me that it had been drawn to his attention at the time. In retrospect, I possibly should have done more in that regard.
However, the fact remains that the notes in the book are evidence that particular statements were made in written form to those reading the book. It is not evidence of those statements are necessarily true, but they are evidence that the statements were made. In addition, Mr Barnett gave direct evidence of his belief that, as a matter of fact, procedures and policies of the Park were not being complied with.
I do not accept that all this evidence is correct. I accept that there may have been some exaggeration in Mr Barnett’s evidence as to the regularity with which procedures and policies were not complied with. However, I do accept the broad thrust of his evidence, which is that there was consistent non-compliance with the procedures and policies of the Park over the second stint of Mr Barnett's employment up to a date in October when Mr Meikle was warned, with some formality, that any continued non-compliance would not be tolerated.
There appears to have been a period following that warning in October when there was little cause for complaint. Coincidentally, the message book also reflects that proposition, in that there are not any entries of significance between the reference about the warning in October 1995 and the next reference on 13 January 1996.
During that period, Mr and Mrs Barnett took a break from the Park and travelled away for a period of time. They returned to the Park in December before Christmas. At around that time it appears that they held a positive view of Mr Meikle's employment efforts, at least in the period since the warning. That is reflected in the favourable terms of a Christmas card which was given to Mr Meikle by Mr and Mrs Barnett that year, and in the fact that Mr Meikle was given a rise in wages and that a bonus of $100 was enclosed in the Christmas card. The second of those issues, the increase in wages, is a matter in dispute.
Mr Meikle worked in rotation with a relief manager, whereby he worked for nine days and the relief manager then worked for five days. One of those nine day periods finished on 12 January 1996. Mr Meikle and Ms Leith left the Park for the next five days while they were off duty and the relief manager took over. During that period it appears that what were perceived to be new breaches of the Park’s procedures came to the attention of Mr and Mrs Barnett.
Mr Barnett’s contention in relation to those new breaches is that, given the difficulties in the manner in which Mr Meikle had conducted himself in his prior employment history, a recurrence of those difficulties, when viewed against his employment history of similar offences, was sufficient to justify the dismissal, even though the particular events in themselves might not have justified dismissal if viewed in isolation. This is not unusual contention.
I have accepted that there was, prior to the warnings in October, a history of non-compliance with the Park’s procedures on the part of Mr Meikle. Based upon the evidence before me, I am satisfied on balance that it was more probable than not that additional instances of non-compliance came to the attention of the employer which, when viewed against the employment history, would justify the termination of Mr Meikle’s employment.
Counsel for Mr Meikle cited the decision of Northrop J in Selvachandran v Petersen Plastics Pty Ltd (1995) 62 IR 371 to the effect that for there to be a valid reason for termination, the decision needs to be sound, defensible and capable of justification. There is some level of objectivity involved in the application of that principle. It is not the role of the Court to put itself in Mr Barnett's position and to say what it would have done in the same situation. What the Court has to ask itself is whether a reasonable manager in Mr Barnett's position could have reasonably decided to terminate the employment. I am satisfied, on balance, that a reasonable manager could have made such a decision.
I have also had regard to the evidence of Mr Barnett to the effect that, following the termination of Mr Meikle’s employment on 18 January 1996, there was a period up until late February before new managers, Mr Don Luke and his wife, were appointed. This evidence was not contradicted, though I appreciate that Mr Meikle may not have been in a position to contradict it.
That delay suggests a relative urgent decision. I might have taken a different view had Mr Barnett had somebody else ready to take over immediately. Given that they were left without a replacement, why would Mr Barnett have acted in a manner which would not appear to be in his own interests, if there was not a problem with Mr Meikle’s ongoing employment?
Finally, I wish to make it clear that I have made my finding as to whether there was a valid reason for dismissal on the balance of probabilities. It was a reasonably closely balanced judgment to make, and the evidence before me was not as complete as would have been ideal. However, I must make my findings on the basis of the evidence before me, such as it was. While I am satisfied that some of Mr Barnett’s complaints were not justified, I am satisfied that enough of them were justified to make defensible his decision to terminate the employment.
The next matter for consideration is whether or not Mr Meikle was given an opportunity to defend himself against the various allegations that had come to the attention of Mr Barnett at that time. I find that he was not given that opportunity, and that there has therefore been a breach of section 170DC.
Mr Barnett's evidence-in-chief on this issue, in response to questions that I was asking him, can be found at pages 39 to 40 of the transcript. Mr Barnett talks about returning to the Park in early to mid December. He says that Mr Meikle's employment was terminated on 18 January. He says that he and his wife were on duty over the Christmas period and picked up all sorts of problems. He says that they went into the computer and got out the confirming data because, he says, you cannot make accusations without having any information in front of you; you have got to have evidence.
I will say in passing that I draw no adverse inference from Mr Barnett’s failure to produce that data now. He explained that failure as being due to a change in the Park’s computer hardware, so that they could not get the disks to reproduce the print-outs on the new machinery.
Then Mr Barnett goes to say that when Mr Meikle came back from his days off, he was told of all the problems and that he didn't have a job any more. He then goes on to discuss the arrangements to be made following termination about staying in the house and the payments on termination.
Mr Barnett was then asked:
“What problems did you tell him? How deeply did you go into it?”
His response:
“I went into all the matters regarding the linen, the incorrect rents, incorrect bonds not being taken, arrears, all the - and actual - I had the computer print-outs which showed where incorrect dates. I got all the information and pointed it all out to him.”
When asked whether Mr Meikle offered any explanations for any of it, Mr Barnett responded:
“I probably didn't give him the opportunity to. I just went over it and said that this is the end, that's it.”
The recollection of Mr Meikle and Ms Leith was that Mr Barnett went into a lot less detail than he now claims. Whichever account were correct, I am satisfied even on the basis of Mr Barnett's evidence that Mr Meikle was not given a proper opportunity to respond to the allegations and so I find there to be a breach of section 170DC.
The next matter, section 170DB, relates to whether or not there was any requirement to give notice. Section 170DB sets out different periods of notice for employees, depending upon the period of time worked. The relevant period of notice for Mr Meikle was one week. An employer is required to pay that notice unless there was misconduct such that it is unreasonable in all the circumstances to require the employer to keep the employee on to work out the notice.
In the circumstances, I am not satisfied that any shortcomings in Mr Meikle's conduct was so grave that the business could not reasonably be expected to retain him for a week. I therefore find that there has also been a breach of section 170DB.
For the purposes of assessing compensation, I must assess what loss has been sustained by Mr Meikle.
I find that Mr Meikle was in receipt of a rate of pay of $600 per week at the time of his termination. In my view, given that Mr Meikle made up the wages during his second period of employment and was aware of the nature of the record-keeping that was kept, there was no basis upon which he could assume that Mr Barnett was making deductions for tax in addition to the $600. I therefore find that the wages were $600 gross rather than $600 net and I will make my calculations on that basis.
I do not accept Mr Barnett's evidence on this issue that Mr Meikle was receiving only $50 per week. There is independent documentary evidence, in the form of a Job Start agreement between D.E.E.T. and the Blue Gum Caravan Park, that Mr Meikle was earning well in excess of $400 at his previous job. It strains plausibility well beyond breaking point to imagine that Mr Meikle would have left that position in order to take up a position at a wage rate of $50, even were he in a position to receive Social Security benefits during his new employment, as Mr Barnett says he assumed. Mr Meikle has given evidence on oath that he was not in receipt of Social Security benefits during that period. I am satisfied that it is unlikely he would have given that evidence were that not the case, given my expressed intention to refer the transcript to the Department of Social Security and given that it is a matter which could be clearly established one way or the other.
I am so satisfied that Mr Barnett's evidence on this matter was not accurate that I intend to cause the relevant transcript and my reasons in this matter to be referred to the appropriate authorities to decide whether or not Mr Barnett should be prosecuted for perjury. I will also cause a copy of the relevant parts of the transcript in relation to the Social Security benefits to be sent to the Department of Social Security for their information.
Having established the rate at which Mr Meikle would have continued to be paid had he not been dismissed, the final matter that needs to be decided in order to assess what compensation is appropriate for the breach of section 170DC is the period of time for which he should be compensated. In doing so, I must take into account that there will also be damages equal to one week’s pay, that is $600, due to the breach of section 170DB.
Did the failure to comply with Section 170DC cause any loss to Mr Meikle? Would he have been dismissed anyway?
Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 1 IRCR 199; 57 IR 50 made reference to the fact that compliance with section 170DC requires no particular formality. Even so, it appears that even those reasonably relaxed levels of formality were not met in this case. In particular, the tenor of Mr Barnett's evidence is that the decision was made before the meeting commenced; that is not literally what he said but it is the thrust of his evidence, as recounted above. He says some effort was made to gather together material for the meeting to justify and demonstrate the basis for the dismissal, but there was really no opportunity for Mr Meikle to respond to that accumulated evidence.
Mr Meikle and Ms Leith's account is that the meeting was even more peremptory and that there was very little attempt to justify the decision. They say there was basically a passing reference to some problems to do with collecting charges for linen, followed by the advice that Mr Meikle should find another job.
I did not have to make a finding between these accounts for the purposes of deciding whether there was a breach, because there was a breach even on Mr Barnett's evidence. However, for the purposes of assessing compensation I am, again on balance, inclined to accept the evidence of Mr Meikle and Ms Leith on this question.
At the time Mr Barnett was giving his evidence, which was admittedly some time later, I did not have the sense that he had a clear recollection of what the particular “final straws” were that “broke the camel’s back” and led to the dismissal, other than a general recollection that things had come to light while Mr Meikle was off duty which indicated that there had been a further non-compliance. I had the impression that Mr Barnett was, when asked to detail those non-compliances, just falling back upon the sorts of non-compliance of which there had been a prior history.
In the interim, since Mr Barnett’s evidence, the message book which lists particular concerns has been discovered and brought to the attention of the Court. No one claims that the particular issues listed in the message book were put to Mr Meikle at or after the termination.
I have found, on balance, that it came to the employer's attention in January 1996 that further breaches of the procedures occurred, the nature of which are consistent with those recorded in the message book. That finding was based on the evidence before me. However, the opportunity Mr Meikle had to prepare for the hearing was one of the factors influencing the evidence led before the Court. In some cases, the failure to put allegations to an employee has the effect that the employee is not in a position to focus their attention on the matters in issue at the time when their memory of those matters is fresh. As a direct result of being deprived of that opportunity, their capacity to give evidence in their defence in the final hearing of the matter is reduced. The possibility of a finding against them on the evidence is thus correspondingly increased.
I must bear in mind that it is possible, had Mr Meikle been given the opportunity at the time to answer the allegations, that he would have been in a position to put evidence before me now which might have persuaded me to come to a different view as to whether or not there had been a valid reason for termination.
There is also another possibility. Let us assume that the employer had gone into that final meeting with an open mind, and that the employee had been given an opportunity to respond to the allegations by putting any breaches which occurred into the appropriate context. While there were actions on the part of the employee which would justify a decision to terminate, so that a reasonable employer could have decided to terminate the employment, it is also possible that, having heard from the employee, the particular employer might have decided not to act on those reasons, even though they would be entitled to do so. I have to allow for the possibility that that could have occurred had Mr Meikle had the opportunity to defend himself against the particular allegations.
That being the case, I must assess compensation payable in recognition of the possibility that Mr Barnett might have reached a different decision had he given Mr Meikle an opportunity to address him on the particular issues that were before him in January and also the possibility that, if they had been raised with him at the time, Mr Meikle might have been in a better position to put evidence before me to persuade me that there were not valid reasons for termination.
They are contingencies; they are things that possibly might have happened if that opportunity had been given. I cannot be sure that they would have happened and so accordingly I have to discount to some extent the loss that has been demonstrated before the Court. First, however, I must assess that loss.
It is clear on the evidence that Mr Meikle was unemployed for a period of time at least until February. There has been no suggestion that there was any employment prior to that. Mr Meikle gave evidence that, while he was not sure, he estimates he was earning on average about $50 a week in addition to Social Security payments in the period from February to June. I have no evidence to the contrary. There is clear judicial authority that the Court should not take into account Social Security payments for the purposes of assessing compensation, because it is not treated as remuneration for those purposes.
On the evidence, therefore, Mr Meikle sustained a loss, given the week's pay in lieu of notice, from late January to mid-February of $600 a week, and then further loss of $550 a week through to the end of June and then employment at a potentially ongoing loss after that.
I am therefore assuming that a loss equal to at least six months’ salary has ultimately been sustained by Mr Meikle. Allowing for the possibility that that loss could have been averted had reasonable opportunity to defend himself been given, I will assess compensation for the breach of section 170DC at an amount of 10 weeks wages which, given a rate of $600 per week, results in an award of $6000. I will make orders in those terms. The award of damages for failure to give notice in breach of section 170DB is in addition to that award.
The Court therefore declares and orders that:
(1) the application against Mrs Kathy Barnett is dismissed
(2) the respondent, Mr Mike Barnett, has breached sections 170DB and 170DC of the Workplace Relations Act 1996;
(3) the respondent, Mr Mike Barnett pay to the applicant within 21 days of the making of these orders the sum of $6000 in compensation with respect to the breach of section 170DC, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid; and
(4) the respondent, Mr Mike Barnett pay to the applicant within 21 days of the date of making these orders the further sum of $600 representing damages for breach of section 170DB, less any amount payable to the Commissioner of Taxation pursuant to the Income Tax Assessment Act 1936 and actually paid.
I certify that this and the preceding 16 pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.
Associate:
Dated: 12 March 1997
APPEARANCES
Counsel appearing for the applicant: Mr Skinner
Solicitors for the applicant: Gavin J Black Esq.
The respondent represented himself.
