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Tasmanian Industrial Commission

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T6879

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for a hearing in respect of an industrial dispute

Christopher Grant Gard
(T6879 of 1997)

and

Sea Wing International Pty Ltd

 

PRESIDENT F D WESTWOOD

HOBART, 26 May 1997

Termination of employment - Non payment of entitlements - order issued for payment by 26.6.97 of entitlements due in full settlement of the dispute

REASONS FOR DECISION

This application, lodged pursuant to section 29(1A) of the Industrial Relations Act 1984, by Christopher Grant Gard of Margate alleged dismissal without adequate reason from his employment as "test pilot" with Sea Wing International Pty Ltd and unauthorised stand down. It was amended without opposition from the employer, to claim also amounts underpaid at his termination. Six other former employees had made applications alleging unfair dismissal, unauthorised stand down and failure to pay wages and other entitlements due.

The application was lodged after the fourteen day time limit set out in section 29(1B) of the Act and Mr Gard sought an extension of the time limit to allow his claim to be dealt with. He said that he, together with all the former employees, had approached the Workplace Standards Authority as a group and he was under the impression that the case would be heard involving the group and he thought "the ball was rolling". He discovered after the first hearing had occurred that he was not included and he then submitted his application. He said he did not know he was supposed to make a separate claim.

The employer consented to the granting of an extension of time.

I am satisfied that having regard to the tests established for extension of time set out in Hunter Valley Developments Pty Ltd v Cohen (1984) FCR 344, 349, that Mr Gard's reasons for late application are acceptable in these circumstances and it is equitable to extend the time. The applicant had been actively involved in contesting his dismissal but had misled himself as to the next action he should take. I consider there is no prejudice to the employer as a result of the delay as Mr Gard now joins the other former employees in seeking redress. The merits of his application are little different from those of his former workmates and it is, in my opinion, fair that his circumstances should be given similar consideration to those of his workmates.

Mr Gard took part, with the consent of the employer and, at the direction of the Commission, in the second conference and hearing which occurred and was adjourned on 28 April 1997. When the hearing resumed on 24 May 1997 it was clear that the dispute was no closer to a negotiated settlement.

After a lengthy period in private conference involving all the applicants and representatives of Sea Wing International, Mr Gard confirmed that the amount due to him was the amount set out in the separation certificate issued by the company on 25 February 1997 in respect of his termination ($2112.90). The total amount owing to Mr Gard was claimed to be $2112.90.

Mr Gard's claim in respect of his unpaid entitlements was in full settlement of the dispute.

Mr Gates, for the employer, said that he was unable to refute the accuracy of the claim made by Mr Gard.

Despite the peremptory stand down and subsequent dismissal, Mr Gard seeks only payment for unpaid entitlements due which is a clear indication of the good relationship that had existed between the applicant and the former employer.

Before the Commission, Mr Gard, and indeed all the other applicants, has given every indication of being mindful of the efforts of the employer to find funds to enable the business to continue and has expressed the wish to renew employment with the company when it does so. However, it is essential that entitlements due to him as a result of his employment with the company be safeguarded by the Commission.

As a consequence I find that an amount of $2112.90 is owed by Sea Wing International Pty Ltd to a former employee, Christopher Grant Gard, in respect of entitlements due to him and should be so paid within 28 days from 21 May 1997.

Accordingly, pursuant to section 31(1) of the Industrial Relations Act 1984 I hereby order, in full settlement of the dispute that, by 26 June 1997, Sea Wing International Pty Ltd pay to Christopher Grant Gard the sum of $2112.90.

 

F D Westwood
PRESIDENT

Appearances:
Mr C G Gard representing himself
Mr S J Gates with Mr J Sheppard for Sea Wing International Pty Ltd

Date and place of hearing:
1997
April 28
May 21
Hobart