JASON IAN GRAHAM v FRUGALIS PTY LTD No. QI95/1075

his company, of my own accord, as of 5.4.95 and that I would like all monies owing to me to be paid in full. The applicant has since obtained and kept other employment. Issues: On behalf of the applicant it was contended that management's directive to workers at the morning meeting of 8 February amounted to a repudiation of the contract of employment between the respondent and its employees, such that the applicant was entitled to not attend and offer himself for employment at the normal starting time of his shift on that day. It was further contended that the applicant's resignation was not a true resignation, he being forced to sign the letter of resignation before the respondent would pay him any outstanding monetary entitlements. The respondent's case was, in essence, that the relationship of employment continued until the applicant's resignation of 5 April, despite the applicant's failure to present himself for work since he finished the afternoon shift of 7 February 1995. There was no repudiation of the contract of employment. There was no termination of the applicant's employment at the initiative of his employer. Findings: The 8 February morning meeting of workers continued beyond normal starting time for the morning shift. Mr Doube, to whom I have earlier made reference, addressed that meeting after normal starting time. I accept that, amongst other things, he said words to this effect: This is private property. You're employed to come here and work. If you're not going to work, then leave the premises. After that admonition, the workers left the premises, and formed the picket-line. While a few workers did work that day, the great majority, of both the morning and afternoon shifts, and the slaughter-floor crew, did not. The union of which the applicant was a member served notice on the respondent's solicitors at about 10.18 am on 8 February of protected action in the nature of an indefinite stoppage of work from Saturday, 11 February, at the respondent's Grantham premises. The respondent did not at any time close the gate to its premises, so as to effect a lock-out of its workers. It offered work to any of those who would accept it, including at the start of the afternoon shift of 8 February. Work continued to be performed at the premises, on 8 February, and subsequently. Some workers crossed the picket-line. These numbers gradually increased as the picket wore on. Perhaps 40 or 50 of those 90, or thereabouts, who attended the morning meeting of 8 February have since returned to work with the respondent. The applicant was not forced to sign the letter of resignation. His impression that the only way he would be paid his outstanding entitlements was if he signed the form was not engendered by anything said or done by the respondent. The applicant contended in evidence that he was always prepared to work on 8 February, and thereafter, but only in accordance with the terms and conditions of the award. When pressed to say what he would not have got under the award if he had gone to work on 8 February, he was unable to point to anything. While it no doubt would not have been an easy thing for him to break ranks and cross the picket-line, he chose to take part in strike action. From 8 February to the time of his resignation, he failed to offer himself for work, as required by the terms of the award. Work was available to him in this period. On 5 April 1995 he resigned, and took his outstanding entitlements. There was no termination of the applicant's employment at the initiative of his employer. I make no findings as to the lawfulness or otherwise of the suspensions of the workers Barton and Hoger; likewise in respect of the workers' apparent grievances with management about, inter alia, the payment of waiting time. These are issues which do not properly arise for determination in these proceedings. Order: The order I make is that the application be dismissed. The respondent is at liberty to file a notice of motion if it wishes to argue the question of costs, which notice of motion must be served on the union which represented the applicant at trial, such filing and service to occur on or before 22 September 1995. I certify that this and the preceding __________ ( ) pages are a true copy of my Reasons for Judgment. Judicial Registrar: Date: 13 September 1995 Appearing for the Applicant: Ms F. Robinson Counsel for the Respondent: Mr Murdoch Solicitor for the Respondent: Quinn, Ryan & Scattini Dates of hearing: 5 and 6 September 1995 Date of judgment: 13 September 1995