T10249 etc - 29 July 2002
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Craig Anthony Wylie Robert Peter Moore Peter Maxwell Reeve Debra Maree Neighbour Craig Alan Neighbour Scott Lyell Webster Leslie Paul Smith Max Cameron Quarrell Jayson Darrell Oates Dion Roy Price Andrew John Frazer and A.C.N. 009 721 190 (IN LIQUIDATION)
Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - order issued REASONS FOR DECISION [1] On various dates in June and July of 2002, Craig Anthony Wylie, Robert Peter Moore, Peter Maxwell Reeve, Debra Maree Neighbour, Craig Alan Neighbour, Scott Lyell Webster, Max Cameron Quarrell, Leslie Paul Smith, Jayson Darrell Oates, Dion Roy Price and Andrew John Frazer (the applicants), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with A.C.N. 090 721 190 (In Liquidation) A.C.N. 090 721 190 formerly Q's Couriers (the respondent) arising out of severance pay in respect of termination of employment as a result of redundancy, and, in the case of Mr Quarrell, Mr Smith, Mr Wylie, and Mr Moore, a dispute over the entitlement to long service leave. [2] The matters were heard at `Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania on Friday 19 July 2002 at 10.30 am. [3] Mr S Chopping, a legal practitioner, applied for, and was granted, leave to appear on behalf of Mr Moore, Mr Webster, Mr Wylie and Mr Oates. Mr Quarrell, Mr Frazer, Mr Smith, Mr Price and Mr Reeve represented themselves. Mr and Mrs Neighbour had informed the Commission of their inability to appear on that day. Mr F Ireland appeared for the respondent in association with Paul Cook and Associates, Liquidators. [4] The parties agreed that all the matters be joined and heard together, including those of Mrs Debra Neighbour and Mr Craig Neighbour, ex parte. It was further agreed that the only Orders sought were in relation to severance pay in respect of termination of employment as a result of redundancy. [5] The background to these disputes is that the company, Q's Couriers Pty Ltd, was put in the hands of the administrator, Paul Cook and Associates and shortly thereafter the creditors resolved to liquidate the company, which ceased trading on 31 May 2002. The applicants' employment was terminated on that date. All employees were served with a written notice of termination on 27 May 2002. The applicants were provided with a document by Paul Cook & Associates, dated 27 May 2001, informing them that they were able to apply for the General Employee Entitlements Redundancy Scheme (GEERS), a federally funded scheme. The document said, inter alia, that employees would be ineligible under the scheme if their claim was lodged more than twelve months after the date their employment was terminated. They were also provided with individual statements of statutory entitlements, dated 28 May 2002, which made reference to the powers of the Tasmanian Industrial Commission in respect of determining severance payments. [6] Section 20(1A) of the Act enables applications to be made to the Commission by former employees for a hearing in respect of an industrial dispute relating to severance pay in respect of former employees terminated as a result of redundancy. The applicants were bound by the terms and conditions of awards of the Tasmanian Industrial Commission. [7] Section 29 (1B) of the Act says:
[8] Mr Quarrell, Mr Frazer, Mr Smith, Mr Price and Mr Oates all lodged their applications with the Commission after the expiration of 21 days from the date of their termination. [9] Mr Chopping, for Mr Oates, submitted that the employees did not have a full understanding of a complicated situation. No prejudice would be caused to the former employer as a result of the application being outside of the time limit. Mr Quarrell, Mr Frazer and Mr Smith also submitted that they were unaware of the 21 day time limit and did not understand the process. Mr Smith said that he did not understand, from the information provided by Paul Cook and Associates, that he had 21 days in which to apply, and that all they had been told to do was fill in a GEERS form and send it off. [10] Mr Ireland, for the respondent, said that the matter had been complex, and, given the exceptional reasons for the delays, there was no objection to the "out of time" applications being included. [11] I have considered the submissions and examined the correspondence from Paul Cook and Associates to the applicants. Although reference is made to the role of the Commission in determining severance payments, and the necessity to obtain an order for payment, there is no reference to any time limit, apart from the twelve month limit which applies in respect of making a claim for unpaid redundancy entitlements from GEERS. I find that there was confusion and lack of understanding on the part of the employees, as a result of the winding up of the company. The correspondence from the liquidators said:
[12] This may have led the applicants to assume that they had up to twelve months to apply to this Commission. I consider that these are exceptional circumstances, and, in a decision delivered extemporaneously, I determined that the period for lodging an application on the part of the abovementioned applicants should be extended to 17 July 2002, the date of the hearing. [13] I find that the applicants were terminated as the result of redundancy and I confirm in writing my decision, delivered on the day, that employees should receive severance pay based upon two weeks' average pay for each year or service or part thereof. I note that a number of the employees worked regular overtime. [14] In a written submission from Mr Ireland, dated 23 July 2002, it was submitted that Mrs Debra Neighbour does not have an entitlement because she was a casual employee, whose hours were not routine or systematic and that there were periods, such as school holidays, when she did not work at all. Even if this is the case, that fact alone, would not be sufficient to disentitle her to a severance payment given that the Act does not differentiate between casual and permanent employees. I note that Mrs Neighbour commenced employment on 24 July 2001 and remained employed until 31 May 2002, and I think, given the length of service, she would have had a reasonable expectation of ongoing employment. On the information before me it is not clear what the status of Mrs Neighbour's employment was. Mr Ireland says that she was a "casual", her application says that she was a "casual". However, her application also says that she was usually employed for 50 hours per week. The relevant award and the facts of the situation would need to be examined to clearly establish just what the status was. It may be, for example, that she was not a casual, but, rather, an employee granted leave without pay at certain times, such as school holidays. Nor do I have sufficient information before me to determine what her average weekly wage was. I leave it open for Mrs Neighbour to bring the matter back on and will reconvene the hearing at her request. Mrs Neighbour's claim does not form part of this Order. [15] Mr Ireland also submitted that Mr Leslie Smith does not have an entitlement to severance pay because he had not yet completed a month's employment at the time his employment was terminated. Mr Smith's application stated that he commenced employment on 24 September 1995, but, during the hearing, he informed the Commission that he ceased employment in January [2002} and was re-employed in May 2002. My decision is that the applicants should receive two weeks pay for every year of service or part thereof. I find that Mr Smith's period of employment from 5 May 2002 should count, but not his earlier service. No minimum qualifying period was stipulated, therefore Mr Smith has an entitlement, however small. ORDER I hereby order, pursuant to s.31 of the Industrial Relations Act 1984, that the respondent, A.C.N. 090 721 190 (IN LIQUIDATION) A.C.N. 090 721 190 Formerly Q's Couriers Pty Ltd, pay to each of the former employees whose names appear below the amounts specified below, in full and final settlement of the industrial disputes referred to in T10249, T10251, T10252, T10253, T10254, T10259, T10266, T10269, T10272, T10291, and T10306 of 2002, such payment to be made no later than 5.00pm on Friday 16 August 2001. Craig Anthony Wylie $7,763.08
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