PR952699 PR952699 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief in respect of termination of employment Lisa Withington and Once Pty Ltd (U2004/5558) COMMISSIONER HINGLEY MELBOURNE, 26 OCTOBER 2004 Termination of employment- jurisdiction. DECISION [1] This was an application lodged pursuant to s.170CE of the Workplace Relations Act 1996 (the Act) by Ms Lisa Withington (the applicant). Appearances. [2] Mr D. Isakow appeared with leave on behalf of the applicant. [3] Mr N. Withington (husband of the applicant) appeared on his own behalf as respondent. Jurisdictional issues. [4] This instant matter concerns a number of jurisdictional issues requiring determination. [5] The respondent for its part objects to jurisdiction of the Commission prior to conciliation of the matter, because it was said the applicant's remuneration package exceeded the statutory specified rate and her employment was award free. "The amount I put forward was $94,000 plus superannuation, being $102,000, that excludes the car and the mobile phone that were also paid on her behalf." (transcript PN199 Mr Withington). The applicant's group certificate copy (unsigned) for the period of 1 July 2003 to 30 June 2004 discloses gross payments totalling $62,059. [6] The package which was said by the respondent to include superannuation ($162.81 per week), a motor vehicle ($1,285.92 per month) and mobile phone (average $500 per month) was he said to total the $102,534 per annum. [7] The statutory specified rate is $90,400 from 1 July 2004, prescribed by Regulation 30A of the Workplace Relations Regulations . [8] The Commission received from the respondent a number of pay advices for the three months from 10 March 2004 to 20 June 2004 (inter alia Exhibit W1 and correspondence of 24 September 2004 and 15 October 2004), some of which were provided, with liberty extended, to the Commission and the applicant's legal representatives, after the proceedings. The subsequent late filed materials were responded to on behalf of the applicant. This opportunity was extended because Mr Withington represented himself as respondent and was not familiar with the jurisdiction and proceedings under the Act. Mr Withington undertook to provide further pay slips but the materials later submitted related only to the mobile phone and motor vehicle. [9] The respondent maintained that these advices demonstrated the exceeding of the statutory specified rate. [10] It is clear that had the components of the remuneration package as alleged been applied in aggregate over a continuous period of one year, this would have excluded the applicant from jurisdiction. [11] Mr Isakow for the applicant claims that the motor vehicle and mobile phone were "tools of trade" from which she derived no personal benefit. This appears supported by the fact that the group certificate attests that there was no fringe benefits tax paid. I accept on the evidence they were "tools of trade" and presumably remain the property of the respondent and as such may be required to be returned. In Donatacci v Czapp Pty Ltd t/a Airport Doors Pty Ltd [ PR952519 ] 18 October 2004, the Full Bench (Giudice J, Lacy SDP and Simmonds C) commented as follows; "Taxation records and business activity statements should not be lightly disregarded, particularly when other evidence suggests they represent the true situation." [12] Section 492 of the Act has effect in relation to the termination of employment, at the initiative of the employer, of any employee in Victoria (underlining added). This obviates the requirement to be an award covered employee as per s.170CB of the Act. [13] Regulation 30BC(a) prescribes as follows; "30BC. Rate of remuneration per year (a) for an employee who was continuously employed by the employer and was not on leave without full pay at any time during the period of 12 months immediately before termination - the greater of: (i) the remuneration that the employee actually received in that period; and (ii) the remuneration that the employee was entitled to receive in that period;" [14] The applicant commenced employment on 21 April 1999 (Form R18 Rule 37), and while her remuneration according to pay advices immediately before termination, excluding motor vehicle and mobile phone, suggest an outcome over time exceeding the specified rate (the respondent however has not provided evidence of the applicant's rate of pay for the twelve months immediately before the termination of her employment). On the evidence and all that was before me, I am unable to ascertain with any certainty the amount the applicant actually or was entitled to receive for the full twelve months immediately prior to termination of her employment was such as to exclude her from the jurisdiction of this Commission. [15] Accordingly on the evidence I am not satisfied that the respondent has discharged its onus to prove that the applicant is excluded from jurisdiction, and on this ground of objection I find that she is not excluded. [16] Also before the Commission was a jurisdictional matter in which the applicant, in her submission, seeks that the Commission revokes the discontinuance of the initial application (U2004/4679) or accepts the second application (U2004/5558) pursuant to s.170HBA of the Act. The applicant having previously written to the Commission on 13 August 2004 asking that her first application be reinstated and that the Commission grant an extension of time for lodgement. Her reasons being that she had on 3 August 2004 written to the Commission requesting that the first application be discontinued as a result of agreement having been reached. It is alleged that that agreement was wholly breached by Mr Withington shortly thereafter. The agreement appears to have been breached due to circumstances beyond the control of the respondent and whether well intentioned at the time, it factually ceased to operate. [17] I am satisfied on all that was before me that it would be fair and appropriate to address the second application rather than revoke the discontinuance of the first application, and indeed would ensure a fair go all round (s.170CA(2)). [18] Having determined to address the second application, I am required as a consequence to consider whether I should exercise the discretion available to me pursuant to s.170CE (7) and grant an extension of time. [19] In Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988. Those provisions are similarly retained in the Workplace Relations Act 1996. [20] Applying those principles to the matters before me, I make the following findings: 1. The applicant's explanation for the delay in filing is accepted by me and I am positively satisfied by the evidence in these circumstances that the prescribed period should be extended. 2. I am satisfied that there is no prejudice to the respondent caused by the delay. 3. I am not prepared to conclude on what was before me, that the substantive application is without merit. 4. The termination of employment was contested at the time which gave rise to the earlier agreement. [21] Accordingly as a result of my findings, I believe it would be unfair to the applicant not to have the matter proceed and therefore I exercise the discretion available to me and extend the prescribed period in relation to this second application which I accept as within jurisdiction and competent to be progressed. [22] I so determine. The matter will be referred for conciliation. Costs application. [23] In transcript Mr Isakow submitted in the conclusion of proceedings; "To provide the material that he has at such a late stage - it is unsatisfactory. It is unsatisfactory to the court. It is unsatisfactory to myself but moreover, had I received the respondent's covering letter and response in a timely fashion, I actually would have requested that he fill in the gaps that are so evident from the material, the matter could have been adjourned before you today, perhaps by consent, to a suitable date. It is on that basis that I submit that the applicant's costs of today ought to be paid by the respondent." (transcript PNs 176 and 177) [24] In respect to this matter an application for an order for costs is to be made in accordance with Rule 47 of the Australian Industrial Relations Commission rules 1998, i.e. it is to be in writing and in accordance with Form R26. This being so, and to save any further costs being incurred, let me say that if such an application is made in the required form and a new file opened and allocated to me, I would be most unlikely to be persuaded to make such an order. [25] My reason for this is that pursuant to s.170CJ(2) and s.170CJ(3), the costs said to have been incurred are doubtful in so far as the matter proceeded on the day set for hearing. Materials provided subsequently were at the Commission's invitation to ensure that the respondent, who was unfamiliar with the jurisdiction had every fair opportunity to present his case. This unfamiliarity and lack of experience and representation occasioned his non-observance of directions. Directions of the Commission are intended to be complied with and non-compliance is not welcomed by the Commission or opposing parties. However in the circumstances of this and surrounding litigation, I do not regard it as an unreasonable act or omission. Printed by authority of the Commonwealth Government Printer <Price code A>