Robert Hoey v Graphic Services Pty Ltd t/a Graphic Print Group [1995] IRCA 475

obationary period had ended and he would not be given an apprenticeship. He was told he could be kept on the books as a casual employee. The Applicant was stunned by the termination of his employment. He sought further explanation later in the week from the Company. The Respondent argued that the Applicant was not entitled to enforce the provisions of the Act because he was excluded by virtue of Regulation 30B(1)c. In my view Regulation 30B(1)c does not apply to a situation where an employee has already been employed. In any event the evidence of both the Applicant and Mr Barker show that the probation period was not determined in advance, it having been determined on 1 February 1995. Was there a valid reason for the termination of the Applicant's employment? In my view the reason given to the Application for the termination of his employment was valid. Was the termination harsh, unjust or unfair? Given that there was no evidence before me that the Applicant was late for work after 5 April 1995 ,and it is likely that was about the time that the Applicant was warned by Mr Barker not to be late, it seems to me that the termination of his employment was harsh unjust and unreasonable. Did the employer breach S.170DC? The evidence in this matter was clear. The Applicant was given no opportunity to respond regarding the allegation of lateness or his attitude prior to Mr Smith advising him that his employment was being terminated. For these reasons I find that the termination of the Applicant's employment was in breach of the Act. Remedy The Applicant found alternative employment nine weeks after the termination of his employment. However the rate of his pay at his new employment is lower than that earned whilst working for the Respondent. His new wage does not include regular overtime of 2 hours per week worked for the Respondent. The applicant also worked a considerable amount of irregular overtime. In my view that irregular overtime cannot be taken into account unless there is clear evidence that he would have worked that overtime in the future. On my calculation the applicant's ongoing weekly loss is approximately $29. However the maximum amount of compensation that can be awarded to the applicant is 26 weeks wages. I therefore award compensation to the applicant in the sum of $9989.72. I certify that this and the preceding two pages are a true copy of the reasons for my judgment. DATE OF HEARING : 29 AUGUST 1995 FOR THE APPLICANT : MR S. BLEWETT FOR THE RESPONDENT : MR A CHIZMESYA