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Tasmanian Industrial Commission

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T7427

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

Adrian John Batten
(T7427 of 1997)

and

Squirrel Holdings Pty Ltd trading as Cucina Simpatica

 

COMMISSIONER P A IMLACH

HOBART, 18 June 1998

Industrial dispute - termination of employment - arbitrated - order issued

REASONS FOR DECISION

This was an application for a dispute hearing made under Section 29(1A) of the Industrial Relations Act 1984 (the Act) by Adrian John Batten of Launceston.

Mr Batten was in dispute with Squirrel Holdings Pty Ltd trading as Cucina Simpatica, a restaurant operator also of Launceston (the Company).

This matter came within the scope of the Restaurant Keepers Award (the Award).

Mr J Ransom, a barrister and solicitor, sought and was granted leave to appear for Mr Batten. The Company failed to appear and given the circumstances, the matter proceeded ex parte.

Mr Batten came forward as a witness and said his employment with the Company had been terminated unfairly on 14 December 1997. He commenced work with the Company for the last continuous period of work from 17 March 1996. During the period of his employment Mr Batten took one week of his annual leave entitlement.

Mr Batten carried out a wide range of duties at the Company's restaurant including food ordering, preparation and cooking, sometimes on his own. He worked set days, but, varying hours each working day, depending on the requirements of the business. He was paid weekly in cash on a Monday and he was paid according to the hours he worked each week.

On the day his employment was terminated, Mr Batten was directed to the owner/manager Mr Brad Gordon's office and told, without notice, he was no longer required. The next day Mr Batten approached Mr Gordon and he was told the reasons for his employment termination were his lack of respect for Mr Gordon, his declining motivation and an allegation he had given away a free meal. Mr Gordon also alleged Mr Batten had "poor grooming and presentation in an open kitchen" and said complaints about him had been made by other employees.

Mr Batten said that Mr Gordon had changed some of the allegations overnight and, except for a previous reference to motivation, none of the allegations had been brought to Mr Batten's notice at any time prior to his employment termination. He denied the allegations.

Mr Batten had been promised an employment termination payment, but, it had not been forthcoming.

The Commission was advised that the Company's restaurant was now in different hands. Mr Batten sought payment of the balance of his accrued annual leave entitlement plus, in the event reinstatement was considered impractical by the Commission, payment in lieu of notice and an appropriate payment on account of the unfair termination of his employment.

In the light of the duties performed by Mr Batten I have assessed his classification under the award to be that of a Food and Beverage Service Grade 3 employee for which the weekly wage rate currently prescribed is $419.50.

I accept the evidence and the submissions of Mr Ransom that Mr Batten's employment with the Company was terminated unfairly and I also accept that reinstatement of the employment is not available in this case. I am satisfied Mr Batten is entitled to a payment in lieu of notice (one weeks pay $419.50), a payment for seven weeks annual leave accrued for the period 17 March 1996 until 14 December 1997 (including leave loading for four weeks but less payment for one weeks leave which had previously been taken, total $2774.14) plus I will order a further two weeks pay ($839.00) because of the unfair termination of Mr Batten's employment.

ORDER

In accordance with the power vested in me under Section 31(1) of the Act, in settlement of this dispute I hereby order that, within 14 days from the date of this decision, Squirrel Holdings Pty Ltd of 57 Frederick Street, Launceston pay to Adrian John Batten of 109 Canning Street, Launceston, the sum of four thousand and thirty two dollars and sixty cents ($4032.60) being wages and other payments due on the termination of his employment.

 

P A Imlach
COMMISSIONER

Appearances:
Mr J Ransom, of counsel, for Adrian John Batten

Date and place of hearing:
1998
June 2
Launceston