Limn v Inhouse Printing Pty Ltd [2002] FCA 141 (25 February 2002)

Last Updated: 25 February 2002

FEDERAL COURT OF AUSTRALIA

Limn v Inhouse Printing Pty Ltd [2002] FCA 141

Workplace Relations Act 1996 (Cth) s 170DE

JOHN FRANCIS SYDNEY LIMN v INHOUSE PRINTING PTY LIMITED

ACN 075 007 206

NI 2288 of 1996

GYLES J

SYDNEY

25 FEBRUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	NI 2288 OF 1996
BETWEEN:	JOHN FRANCIS SYDNEY LIMN APPLICANT
AND:	INHOUSE PRINTING PTY LIMITED ACN 075 007 206 RESPONDENT

JUDGE:	GYLES J
DATE OF ORDER:	25 FEBRUARY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	NI 2288 OF 1996

BETWEEN:	JOHN FRANCIS SYDNEY LIMN APPLICANT
AND:	INHOUSE PRINTING PTY LIMITED ACN 075 007 206 RESPONDENT

JUDGE:	GYLES J
DATE:	25 FEBRUARY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application by John Francis Sydney Limn ("the applicant") for relief in respect of alleged wrongful termination of his employment contrary to the Workplace Relations Act 1996 (Cth) ("the Act") as that Act was in force at 29 October 1996.

2 On 11 November 1996 the applicant filed an application for relief pursuant to s 170EA of the Act in the then existing Industrial Relations Court of Australia ("the IRC"). The details of the claim were not entirely clear. He sought compensation and claimed that he had received no annual holiday pay or superannuation entitlements for the years October 1993 to October 1994, October 1994 to October 1995 and for the periods of October 1995 to December 1995 and January 1996 to October 1996 and that he had been short-paid in his last week in the sum of $502 and had been short-paid an unspecified amount on forty five four-day shifts. His brief summary of the reasons given for termination was:

"1 week

Given no notice"

It is not necessary to trace the subsequent procedural history of the matter. Counsel are agreed that I am to hear the matter de novo.

3 Section 170DE of the Act provided:

"170 DE (1) An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct based on the operational requirements of the undertaking, establishment or service.

(2) 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. This subsection does not limit the cases where a reason may be taken not to be valid"

4 Sections 170DB, 170DC and 170EDA(1) are also relevant, and provided:

170DB (1) An employer must not terminate an employee's employment unless:

(a) the employee has been given either the period of notice required by subsection (2), or compensation instead of notice; or

(b) the employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period.

(2) The required period of notice is first worked out using this table:

Employee's period of continuous service with the employer	Period of notice
Not more than 1 year More than 1 year but not more than 3 years More than 3 years but not more than 5 years More than 5 years	At least 1 week At least 2 weeks At least 3 weeks At least 4 weeks

The period of notice is increased by one week if the employee is over 45 years old and has completed at least 2 years continuous service with the employer.

(3) The regulations may prescribe events or other matters that must be disregarded, or must in prescribed circumstances be disregarded, in ascertaining a period of continuous service for the purposes of subsection (2).

(4) The amount of compensation instead of notice must be equal or exceed the total of all mounts that, if the employee's employment had continued until the end of the required period of notice, the employer would have become liable to pay to the employee because of the employment continuing during that period.

(5) That total must be worked out on the basis of:

(a) the employee's ordinary hours of work (even if they are not standard hours); and

(b) the amounts payable to the employee in respect of those hours, including (for example) allowances, loadings and penalties; and

(c) any other amounts payable under the employee's contract of employment.

170DC An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:

(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b) the employer could not reasonably be expected to give the employee that opportunity.

...

170EDA (1) If an application under section 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 proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid."

5 In order to prove a breach of s 170DE of the Act it is necessary for the applicant to establish that he was employed by the respondent, and the nature and duration of that employment, before the validity of the termination is considered. There is a large gulf between the case for the applicant and that of the respondent. The applicant alleges employment as a printer in the business of 2R Graphics from October 1993 until 29 October 1996, when he was dismissed peremptorily for not working until he received back wages he had not been paid. The respondent denies that he was employed at all, save for intermittent odd jobs.

6 The applicant initially said that he commenced employment with the business 2R Graphics in late 1993 at premises at North Parramatta. In cross-examination, the applicant conceded that he was unable to recollect exactly when he commenced employment with 2R Graphics and that this date was his "best guess". He says that he was employed following an interview with Robert Sadek after responding to an advertisement placed by 2R Graphics in the Sydney Morning Herald for an employee to operate a printing machine at that business. That advertisement is not in evidence. He also says that Robert Sadek and Romio Georges employed him as a printer on that date at a rate of "$600 per week gross" and approximately $450 per week net. In cross-examination the applicant at one point stated that he was earning up to $1,200 per week. He states that he was employed on a full-time basis, working an average of six days each week from 7.00am to 2.30pm and, on most weekdays, overtime from 2.30pm to 9.00pm. He also says that he was paid at a rate of $17.50 per hour for any overtime worked and that he was always paid in cash. The applicant gave evidence about other matters which are said to verify his version, including reference to the type of printing machine he says he operated, being a GTO46 Heidelberg machine and references to particular printing jobs done by 2R Graphics which he says he produced during his employment.

7 The applicant alleges that during his employment with the respondent he was often underpaid amounts owing to him. On 29 October 1996, upon the applicant's refusal to work until moneys he alleged were then owing to him were paid by Robert Sadek, Robert Sadek terminated the applicant's employment summarily. The applicant alleges that his termination was for that reason alone.

8 The applicant also relies upon the evidence of Steven James Hayes ("Hayes Senior") and his son, Steven Barry Hayes ("Hayes Junior"). Hayes Senior was the applicant's landlord for a period which he says was from mid 1995 until about June 1997. He says that he helped the applicant move from his previous premises, being a flat at the rear of premises owned by the parents of Romio Georges, a partner in the business. Hayes Senior gave evidence that Robert Sadek would regularly call to ask for the applicant to work, often in the middle of the night, and would then pick him up to take him to work. He gave an account of an incident, which he put as probably around September or October 1996, when Robert Sadek took both Hayes Senior and the applicant to business premises at North Parramatta, where the applicant started working the printing press and Robert Sadek's father drove Hayes Senior home.

9 Hayes Junior gave evidence of occasions when he and his brother attended at business premises at North Parramatta with the applicant during school holidays, when he saw the applicant working on the printing machine.

10 The applicant has not tendered any records that might indicate that he was employed by the business of 2R Graphics or the business of the respondent. He has not tendered any tax returns, bank statements or similar documents which might indicate that he was paid the wage he claims by the respondent for the relevant periods.

11 The respondent, Inhouse Printing Pty Limited, was only incorporated on 26 July 1996 by John Muir. On 29 July 1996 Robert Sadek and his mother Mona Sadek were registered as directors of the respondent. At that date John Muir resigned as sole director and company secretary. It appears that the Sadeks' control of the respondent commenced on this date.

12 Robert Sadek commenced a business in partnership with his brother-in-law, Romio Georges, which traded as "2R Graphics" and which began trading in late 1993, operating from the Georges' home at Centenary Road, Wentworthville in New South Wales. There were no printing machines at those premises. In mid 1994 the business was moved to premises at Grose Street, North Parramatta. Robert Sadek and Romio Georges continued to operate in partnership under the name of 2R Graphics until about October 1996 when the partnership ended, although apparently Robert Sadek continued to operate from those premises on behalf of the respondent for some time. One printing machine was acquired by 2R Graphics, described as a "GTO46", whilst at North Parramatta, although there is some doubt as to when this took place. I find that the printing machine was installed in early 1996.

13 In early 1997 Robert Sadek, on behalf of the respondent, moved business operations to Harbord Street, Granville, trading under the name of the respondent. Sadek retained possession of all documents relating to the business of 2R Graphics. The GTO46 was transferred to the Granville premises and a GTO52 was also installed at those premises. The premises in Harbord Street was destroyed by fire in 1999, including all records of the business of 2R Graphics.

14 Robert Sadek and Romio Georges say that the applicant was interviewed for the position of printer in early 1996 following a Sydney Morning Herald advertisement being placed by 2R Graphics. They also say that the applicant was not hired for that position as he was inebriated at the time of the interview and thus not a candidate whom either Sadek or Georges considered capable of operating a printing machine. Both Sadek and Georges say that the applicant would turn up to the premises frequently thereafter, asking for work. He would become distressed whenever he was asked to leave. They say they felt sorry for him and occasionally permitted him to do odd jobs in cleaning up the premises, for which he was paid small amounts of cash. This evidence was supported by Rania Georges, the sister of Robert Sadek and the wife of Romio Georges, who did the books for the business and attended the premises from time to time.

15 Robert Sadek said that he allowed the applicant to attempt to operate the printing machine on some occasions but that the applicant was unable to do a proper job because of his drinking. Romio Georges gave evidence that on the occasions that the applicant was given an opportunity to operate the printing machine he was affected by liquor and incompetent so he was told to go home.

16 Robert Sadek and Romio Georges admit that some of the printing jobs which 2R Graphics undertook matched those recalled by the applicant, but maintain that the applicant was able to recall those particular jobs because he was at the premises from time to time and was able to observe what was being printed and distributed, not because the applicant had ever actually done those jobs himself. Both Robert Sadek and Romio Georges deny ever meeting Steven James Hayes or Steven Barry Hayes. Sadek admits that on occasion he gave the applicant a lift to the premises at North Parramatta, but maintains that he never picked the applicant up from one of the applicant's residences. Robert Sadek denies the account given by the applicant of being dismissed.

17 Each witness was cross-examined. It is fair to say that discrepancies and contradictions were revealed in the evidence of each of them. Some of these can be accounted for by the difficulty in reliably recalling a sequence of events after a significant lapse in time. In the case of the applicant, this could be exacerbated by his drinking habits. In the case of Hayes Junior, it would be exacerbated by his youth at the time of the events. However, I am satisfied that evidence to suit the case was given by all witnesses, particularly by those most involved, namely, the applicant, Robert Sadek and (to a lesser extent) Romio Georges.

18 I can place very little weight upon the evidence of the applicant. Apart from confusion and contradictions in his various accounts and his unsatisfactory demeanour, his credit is seriously dented by several factors. One is the inconsistency of his initial story with the facts I have found as to the acquisition of a printing machine by the business. The false claim to have been employed in and since 1993 was made in his application filed within two weeks of the alleged dismissal.

19 Another is the fact that the applicant did not disclose that he was employed by Blue Star Instant Print from 29 October 1996 to 11 November 1996, that is, from the day of the alleged dismissal, although claiming in evidence that it took about three months from termination to get another job. I am satisfied that a letter from the Department of Social Security dated 17 April 1997 to the applicant was left by him when he vacated the flat at the rear of the Georges residence, and that it represents the truth. In addition to the fact of employment with Blue Star Instant Print, the letter indicates that the non-disclosure of the employment was in breach of the Social Security Act 1991 (Cth). It also establishes that the applicant did not leave the Georges' flat until after 17 April 1997. This is quite at odds with the chronology of both the applicant and Hayes Senior, and is inconsistent with a falling out with Robert Sadek of the kind he alleges in October 1996. His evidence that he worked at the premises at Granville is also difficult to account for if his version of the events of 29 October is correct.

20 I have referred to the absence of documents, including group tax certificates, produced by the applicant. Whilst I do not discount the possibility of payments of cash in hand by a business of this kind, I do not accept that this method of payment would be made in relation to a permanent employee on substantial wages, as the applicant claimed to be, and so deny a tax deduction to the employer for the wages paid. The applicant's version of the relationship is also unlikely because of the serious problems with alcohol which I am satisfied that he had. He would not have been able to hold down a permanent job of the kind claimed. I am satisfied that, in large measure, the applicant's claim is fabricated.

21 On the other hand, I do not accept the entirety of the version of events given by the witnesses for the respondent who, I am satisfied, consciously diminished their relationship with the applicant. This conclusion is based in part upon the unconvincing manner in which they gave evidence. Further, I do not believe that Hayes Senior and Hayes Junior completely fabricated their evidence, although it may be unreliable as to detail. That evidence establishes work by the applicant as a printer from time to time. The tenancy of the flat at the premises of the Georges over a period of time and the acknowledged presence of the applicant at the business premises from time to time indicates greater involvement with the applicant than Robert Sadek and Romio Georges would acknowledge.

22 In my view, the most likely version of events is that the applicant applied for the printing job in early 1996 and was not successful. He did continue to pester Robert Sadek and Romio Georges for work, and was given some odd cleaning-up work for small amounts of cash. There were also intermittent occasions when, for one reason or another, the business required a relief printer - often at night, to do an extra shift - and the applicant would be called upon to work for a few hours for cash in hand. This suited the applicant, as he was probably receiving social security and would also pay no tax. It suited the business, as payment would be at cheap rates and not of sufficient size for a tax deduction to be important.

23 It is possible that there was an altercation between the applicant and Robert Sadek on or about 29 October 1996 about payment for some of this ad hoc work. I am satisfied, however, that what occurred was not dismissal from any relevant form of employment. The applicant has not established the necessary elements to constitute a breach of s 170DE or s 170DB, and the application must be dismissed.

24 I now come to consider the question of costs. Counsel for the applicant submitted that, if the applicant was successful, this Court has power to award costs pursuant to s 43 of the Federal Court of Australia Act 1976 (Cth). Counsel for the respondent submitted that the decisions in Brophy v Mapstone (1984) 3 FCR 227 and Howard v Cummins (unreported, Keely J, 18 November 1988) preclude the use of s 43 in this way in the face of the particular provisions of the Act at various times. He submitted that there was no discretion or power to order costs to either the applicant or the respondent. As the respondent has succeeded, I accordingly need not consider that issue further.

I certify that the preceding twenty four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 25 February 2002

Counsel for the Applicant:	B Slowgrove
Solicitor for the Applicant:	Coustas & Co
Counsel for the Respondent:	G Gillett
Date of Hearing:	21 June, 6 December 2001
Date of Judgment:	25 February 2002