WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Michael Francis Brandler and Southern Oceanic Hotels Pty Ltd t/a Observation City Resort. No. 755 of 1993. COMMISSIONER S.A. KENNEDY. 6 September 1993. Reasons for Decision. THE COMMISSIONER: By this application Michael Francis Brandler ('the Applicant') claims he is due contractual benefits pursuant to section 29(b)(ii) of the Industrial Relations Act 1979 ('the Act'). Section 29 of the Act prescribes access to the Commission. Subsection (b) of section 29 provides specifically for access for individual employees in respect of two types of claim brought for the Commission to enquire into and deal with pursuant to the powers conferred on the Commission by the legislation. Section 29(b) is as follows— (a) ... (b) in the case of a claim by an employee— (i) that he has been unfairly dismissed from his employment; or (ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of service, by the employe[r]. The claim is brought against Southern Oceanic Hotels Pty Ltd trading as Observation City Resort Hotel ('the Respon- dent'). The claim is for a redundancy payment the Applicant says is due. The claim is for a sum equivalent to four weeks' wages for each completed year of service. The Respondent acknowledges that a contract of employ- ment between the Applicant and it existed but denies that the terms of employment included provisions for a redun- dancy benefit or that such could be implied. Further the Respondent answers state that there is no 'industrial matter' and therefore no jurisdiction or power for the Commission because— (a) the Application relates to an entitlement allegedly accrued by the Applicant at a time when no employer/employee relationship existed between the Applicant and the Respondent; and (b) the employer/employee relationship no longer exists between the Applicant and the Respondent, and it is not expected to come into existence or be restored in the future. [Paragraph 6; Particulars] There are a number of agreed facts as follows. The Applicant was employed in the position of human resource manager in the Respondent's hotel operations commencing on 3 February 1986 with a salary of $49,388.00 per annum. On or about 27 April 1993 the Applicant was given three months' notice of the termination of his employment. On 5 May 1993, while still employed by the Respondent during this period of notice, the Applicant filed this claim. The declaration of service filed by the Applicant states that the claim was served by the Applicant, by hand, on the Respondent's general manager on the 6 May 1993. The same day the Respondent terminated the Applicant's employ- ment. In effect he was then paid out in lieu of serving the remainder of the period of notice. For the purposes of the question of jurisdiction the Respondent drew attention to the judgements of the Industrial Appeal Court in Robe River Iron Associates v. Association of Draughting, Supervisory and Technical Employees of Western Australia ['the Pepler case', (1988) 68 WAIG 11], ['the Kounis case' (1993) 73 WAIG 14] and, more recently, the judgement issued on 9 June 1993 in Appeal No's 3, 4 and 5 of 1993, Coles Myer Stores Ltd v. Coppin, Ryan and Sweeting ['the Coles Myer cases', (1993) 73 WAIG 1754]. The Pepler case concerned a decision at first instance that an employee had been unfairly dismissed and a conclusion that as re-employment was not the best remedy in all the circumstances the unfairness should be remedied by a sum of money in compensation. The Industrial Appeal Court concluded on appeal that the legislation limited the Commission to a restoration of the contract of employment between an employee and employer as remedy with any authority to order compensation being an incident only to that and then limited to loss of contractual benefits between the unfair dismissal and restoration of the employment relationship. The decision in the Kounis case endorsed the Pepler decision and applied it in a case where the claim was not for unfair dismissal but for redundancy payments. At page 19 of that judgement Owen J. went on to set down the principle in relation to the access to the Commission and various propositions based on the reasoning in Pepler. In my view, the judgement in Pepler suggest that the decision rests upon a point of principle, namely, that jurisdiction depends on the present or future existence of the employer/employee relationship. Unless, at the time when the application is made, the relationship actually exists, or is expected to come into existence in the future, or did exist and is to be restored, the key element of an 'industrial matter' is missing. The very language of the judgements carries this implication. Particular regard should be had to those parts from the judgements which are underlined in the passage which I have set out earlier in these reasons. While it may be possible to say that the context of those statements in the reasons of Kennedy J. might suggest that his Honour was referring specifically and solely to unfair dismissal, the same cannot be said of the reasons of Olney J. and of Rowland J. There are a number of propositions which can be extracted from the judgements and which, in my view, point to the ratio of Pepler. 1. The jurisdiction and powers of the Commis- sion are limited to the terms of the Act. 2. The powers of the Commission extend to those which are incidental and necessary to the exercise of the jurisdiction so conferred. 3. The Commission is confined to dealing with an 'industrial matter' as defined. 4. A claim that a dismissed employee should be reinstated or re-employed is an industrial matter. 5. The power to award compensation to an employee whose contract of employment has been brought to an end is not a power at large. It can be exercised only as an incident to the restoration or re-activation of the contract of employment. [emphasis added] His Honour then goes on the conclude that there is nothing in the Kounis case which would justify reading down the Pepler doctrine. The Coles Myer claims at first instance involved individuals who had been made redundant. They made claims to the Commission pursuant to section 29(b)(ii) of the Act to the effect that they had been denied an implied benefit under the respective contracts of employment. The Commission found that that was fact and ordered that they be paid moneys in restitution. On appeal the Industrial Appeal Court, without making any decision in respect of the 2730 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 73 W.A.I.G. claimed implied benefit, relied upon the Pepler and Kounis dicta in concluding that the Commission had no jurisdiction to make an order of the type made. In its judgement the Industrial Appeal Court referred to the judgement of Owen J. in the Kounis case at page 19 and went on— What this line of authority indicates is that there must be a continuation of an industrial relationship between the parties to constitute an industrial matter. The interpretation provisions of the Act speak in terms of an existing employer employee relationship. Para- graph (b) of the interpretation section defines 'indus- trial matter' to include any matter relating to the "conditions of employment which are to take effect after the termination of the employment". The exercise of power under that provision is limited to the making of the conditions whilst the contact of employment is in existence. The provision in paragraph (c) of the interpretation section 'industrial matter' which gives power to deal with any matter relating to "the dismissal ... of any person ..." should also be read in the context of the opening words of the definition, and thereby limited in the same way to an existing or prospective continuing relationship of employer and employee. The only extension of this has been where an industrial dispute has been resolved by orders directing re-employment and in some cases where re-employment is sought on the basis of unfair dismissal. Absent any industrial dispute and a claim to reinstate a dismissed employer [sic] the Commission does not have jurisdiction to deal with the common law contract between an ex-employer and an ex-employee. The applications in each case recognised in terms that the relationship between the parties was irretriev- ably at an end. It follows that the Commission has no jurisdiction to deal with the applications. [at page 1757; Emphasis added] Thus the Industrial Appeal Court concluded that the Commission's findings in those cases that there had been a denial of contractual benefits were not relevant because there was no jurisdiction for the Commission at all due to the fact of no employee-employer relationships in existence and no prospect for any restoration. This seems to mean then that not only must there be an existing employer-employee relationship for the Commis- sion to have jurisdiction to enquire into a claim for contractual benefits, there must be also an existing em- ployer-employee relationship or the prospect of one at the point of any remedy which may be applied by the Commission and that if this latter does not exist then there is no jurisdiction for the Commission to determine the issue. Leaving aside that part of its answer going to the actual claimed entitlement the Respondent submits that the judgements in the Coles Myer case and its predecessors as to the law mean the claim raised here is beyond the jurisdiction of the Commission because there is no longer an employment relationship and there is no prospect for an employment relationship. It is a matter of fact that there was an employer-employee relationship between the Applicant and the Respondent on the 5 May 1993 when the Applicant filed this application. The Respondent acknowledges that there was jurisdiction for the Commission then. The next day the Applicant was sacked. He became an ex-employee and according to the Respondent that fact and the absence of any prospect for re-employment disposes of the Commission's jurisdiction. As it was put in submissions, the law as it stands following the Coles Myer decisions means that while there was jurisdiction one day for the Commission to enquire into and deal with a claim there wasn't the next because the employee became an ex-employer and that state was going to remain the case. I have considered the Coles Myer judgement long and hard so far as it may have application here. There is a distinction between the facts in this matter and those in the Coles Myer cases. At the point of application there was no employer-employee relationships in the Coles Myer cases. There is in this case. It seems to me then that the fact of a severing of that employer-employee relationship the follow- ing day should not be accepted, of itself, as disposing of the jurisdiction which existed at the point of application. For one this would seem to be contrary to long established principles of law and administration of laws. And for another it cannot be presumed that the unilateral disposal of an employment relationship, of itself, disposes of any prospect for its restoration. And indeed there might be good reason for the Commission to exercise the discretion conferred by the Act in such a case to allow an applicant, dismissed after his/her application to amend his/her claim so as to include an issue going to re-employment. Further and in the context of this case, while it may be that after hearing the parties the Commission concludes that there is no prospect for re-employment, then per the Coles Myer judgement the jurisdiction to award the claimed contractual benefit is disposed of. But it can not be said in this case that the parties have been heard properly on this. Nor have they been heard properly on the actual claim of denied contractual benefits. I have concluded that on the basis of the existence of an employer-employee relationship at the time of application there is jurisdiction to proceed to enquire into whether or not the claimed entitlement is in fact due under the contract of employment which existed then. If the claimed contractual benefit is found, then the enquiry will proceed as to whether there is any jurisdiction for the Commission to apply any remedy. This finding of jurisdiction is now made.