T12110
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Brian David Viney and Fall and Associates Pty Ltd
Industrial dispute - alleged breach of award - application dismissed REASONS FOR DECISION [1] On 3 June 2005 Brian David Viney (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with Fall and Associates Pty Ltd (the respondent) arising out of and alleged breach of award or registered agreement. [2] The matter was listed for hearing at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania on 22 June 2005 (Conciliation Conference), 30 August and 4 October 2005. [3] On the 1st April 2005 the applicant, Mr Viney tendered his resignation to the directors of Fall and Associates Pty Ltd, the respondent. At that time there were a number of properties in his portfolio listed as "unconditional" sales. The applicant subsequently received commission for these. [4] A property at 89 Gillon Crescent, Mount Stuart was claimed by the applicant to be an "unconditional" sale at the time of his resignation. The respondent asserted the property sale was conditional on legally imposed barriers to the sale being lifted. [5] The applicant claimed he is entitled to 43% of the commission earned from the selling fee charged by the respondent for the property in question. The respondent rejected the claim alleging the property sale was not unconditional at the time the applicant left it's employ. LIST OF WITNESSES WHO GAVE EVIDENCE AUTHORITIES BACKGROUND [6] The applicant resigned on 1st April 2005 by mutual agreement the notice period of one week was waved, he ceased employment with the respondent on that day. [7] The applicant asserted the sale of the property at 89 Gillon Crescent, Mount Stuart was unconditional on the day he ceased employment with the respondent, consequently he claimed he was owed payment of commission. [8] The respondent asserted the sale of the property was not unconditional at the time the applicant left it's employ. The respondent cited a note form the applicant listing the property in question as unsold. The circumstances surrounding the drafting of the note were disputed. [9] The property in question was first listed for sale in September 2004. Mid way through September two offers on the property were generated, one through the applicant and another through Mr Adrian Martin who was also a salesman. The ensuing wrangling resulted in an aggrieved party placing an estoppel on the sale and a caveat on the property title. Effectively preventing the sale progressing. [10] A civil lawsuit resulted. The case was only resolved on or about the 8th April 2005, allowing the applicant's "buyer" to finally settle the transaction the following week. The respondent was not a party in the civil case. [11] The respondent alleged the applicant and the other salesman failed to follow company guidelines when confronted with multiple offers. The applicant denied this asserting the offer made through him was the only legitimate offer at the time. The respondent asserted that as a result of the alleged failure to follow company guidelines the applicant caused the business significant expense. [12] The owner of the disputed property sought the return of the total fee for selling the property from the respondent. Through negotiations the owner accepted the return of half the selling fee, a sum of $4,500. The respondent asserted legal and other costs in dealing with the matter of the sale negated any fees received. The applicant argued that such a situation was irrelevant, that the legal costs associated with a litigant customer and the subsequent reduction of selling fees were not of his making and as such he should be entitled to his full commission. [13] It was conceded by the applicant, setting the quantum of selling fees was the prerogative of the business. [14] FINDINGS [15] The Estate Agents Award at clause 32 (C) (V)(2) clearly sets the parameters by which a past employee is entitled to claim commission for a property sale.
[16] The intent of the Award is reproduced in the applicant's contract of employment1 at clause 6 - Termination, Item 6(g) states;-
[17] This application hinges on the establishment of two facts. The first is the date the applicant ceased to have an employment relationship with the respondent. Secondly, at that date was the sale of the property in question unconditional? [18] On 1st April 2005 the applicant tendered his resignation giving one week's notice. By mutual agreement between the applicant and the respondent, the applicant ceased working for the respondent on that day. No wages in lieu of notice were paid. The applicant did not forfeit one week's pay. [19] I find the employment relationship between the applicant and the respondent ceased on 1st April 2005. [20] The applicant argued the property sale was unconditional on the day he terminated his employment, in terms of real estate issues. There is no argument there was both a caveat on the title and an estoppel preventing the sale of the property at the time of the applicant's termination. [21] The award is silent on the definition of "unconditional". I choose to apply the everyday interpretation. The Collins Australian Dictionary defines "unconditional" thus:- " without conditions or limitation" . The Award nor the dictionary definition offer any qualification of the term "unconditional". The term implies the exclusion of any and all conditions. [22] It is clear at the time of the applicant's termination of employment the sale of the property in question was subject to the caveat and estoppel being lifted. [23] The sale of the property at 89 Gillon Crescent, Mount Stuart was not unconditional on the 1st April 2005 the day the applicant's employment with the respondent ceased and therefore, according to the Estate Agents Award he is not entitled to any commission. I so find. [24] The application is dismissed. James P McAlpine Appearances: Date and Place of Hearing: 1 Exhibit R1
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