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Tasmanian Industrial Commission

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T6052

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of industrial dispute

Miss Elly-Jean Sommer
(T.6052 of 1996)

and

Keith Mulley
(trading as Tint-A-Car)

 

DEPUTY PRESIDENT A ROBINSON

HOBART, 10 April 1996

Industrial dispute - termination of employment - application dismissed - file closed

REASONS FOR DECISION

Application was made by former employee Miss E.J. Sommer for a hearing to settle an industrial dispute pursuant to Section 29 of the Industrial Relation Act 1984 (the Act).

The applicant said she was in dispute with Mr K. Mulley, a franchise holder, trading as "Tint-a-Car" at 237 Wellington Street, Launceston, concerning her termination of employment and a claim that she be reinstated in her former employment.

The matter was listed for hearing in Launceston at 9.30 am on Wednesday 3 April 1996. Both Mr S. Brown of Counsel, for Miss E.J. Sommer, and Mr G. Richardson, of Counsel, for Mr K. Mulley were granted intervention by the Commission at the commencement of proceedings.

Mr Richardson pointed out that whilst his client, Mr Mulley, had some association with the proprietary company by which Miss Sommer had been employed he was not, and had never been, her employer.

It was argued by Mr Brown that given the circumstances it was appropriate for the Commission to permit the application to be amended and correct the error which had occurred in the application by naming Mr Mulley as the employer of Miss Sommer. In this regard reference was made to Section 21 of the Act which concerns the procedure of the Commission and associated matters. It was also submitted by Mr Brown that the amendment sought would suit the convenience of the parties then present with any witnesses brought along at that time. Furthermore if a fresh application was to become necessary then it would be beyond 14 days of the day of termination [Section 29(1B) of the Act], and therefore out of time unless the Commission could be persuaded to grant an extension of time pursuant to Section 21(2)(m) of the Act.

Decision

I now confirm my decision to dismiss the application in matter T. 6052 of 1996 for the following reasons:

(1) Section 21(1) of the Act provides that the Commission may regulate its own procedure, and therefore a discretion exists which must depend upon the circumstances applying in each case.

(2) Whereas Section 21(2)(k) of the Act allows the amendment of a document relating to a matter on such terms as the Commission thinks fit, it is considered that an application pursuant to Section 29 has a higher standing than being a mere document.

(3) The Commission's jurisdiction is directly related to the terms of an application.

(4) In my view the application before me in this matter was defective in a substantive way and the error of naming a person who was not the employer of the applicant does not warrant leave to substitute the name of another who has not been properly served with all of the requisite notices.

The file is therefore closed.

 

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr S.J.N. Brown of Counsel for Miss E.J. Sommer
Mr G. Richardson of Counsel for Mr K. Mulley

Date and Place of Hearing:
1996.
Launceston:
April 3