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T10342, T10349, T10359, T10350 and T10351

 

TASMANIAN INDUSTRIAL COMMISSION

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

Roger Kevin Gregson
(T10342 of 2002)
Robert John Rybak

(T10349 of 2002)
Paul Lee Jones

(T10359 of 2002)
Brett Anthony Siggers

(10350 of 2002)
Steven Charles Cartwright

(T10351 of 2002)

and

ACN 090721190 under liquidation formerly known as Q's Couriers Pty Limited

 

COMMISSIONER P C SHELLEY

HOBART, 13 September 2002

Industrial dispute - severance pay in respect of termination of employment as a result of redundancy - breach of award - order issued in respect of severance payment

REASONS FOR DECISION

[1] On various dates in July and August 2002, Roger Kevin Gregson, Robert John Rybak, Brett Anthony Siggers, Steven Charles Cartwright and Paul Lee Jones (the applicants), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with ACN 090721190 under liquidation formerly known as Q's Couriers Pty Limited (the respondent) arising out of severance pay in respect of termination of employment as a result of redundancy and the alleged breach of an award.

[2] The matters were heard together at `Lyndhurst', 448 Elizabeth Street, North Hobart, Tasmania on Thursday 22 August 2002. The applicants sought, and were, granted, leave to amend their applications to accurately reflect the name of the respondent.

[3] Messrs Gregson, Rybak, Siggers, Cartwright and Jones represented themselves. Mr Forbes Ireland appeared for the entity ACN No 090 721 190 under liquidation formerly known as Q's Couriers Pty Limited.

[4] That aspect of Mr Gregson's application alleging breach of award was adjourned sine die and does not form part of this decision.

[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 2002, 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:

"An application for a dispute before a Commissioner in respect of an industrial dispute relating to termination of employment or severance pay relating to redundancy is to be made within 21 days after the date of the termination or, if the Commissioner considers there to be exceptional circumstances, such further period as the Commissioner considers appropriate".

[8] All of the applicants lodged their applications with the Commission after the expiration of 21 days from the date of their termination, and sought an extension of time.

[9] Mr Ireland opposed the granting of that extension, on the basis that there were no exceptional circumstances. He said that each of the applications was at least six weeks beyond the 21 days. There are a number of employees [of Q's Couriers] who have yet to lodge applications with Commission.

[10] Mr Ireland said that the administrator is beginning to be concerned at the delays, given that dealing with employee entitlements is a priority which must come before other matters in the liquidation process.

[11] All employees, he said, were informed by the administrator of two issues in writing. They were told that employee entitlements would need to be processed through the correct channels. They were told that it would be appropriate for them to make application to the GEERS scheme. As there was no provision in the relevant awards that cover the employees, they would need to make application to the Tasmanian Industrial Commission for an order in relation to redundancy. That information was contained in the letters that went out to the employees. Mr Ireland read the following passage from one of the letters into the transcript:

"State awards do not contain redundancy provisions. However, the Tasmanian Industrial Commission has been given specific powers to deal with disputes concerning the termination of employment due to redundancy. The Commission also has the power to determine a severance payment in such disputes. I am advised that as a general standard the Tasmanian Industrial Commission will award two weeks' pay for each year of completed continuous service". Australian Workplace Relations legislation generally precludes casual employees from a redundancy entitlement. It will be necessary therefore for those employees who believe they may be entitled to a redundancy payment to apply for an order from the Commission. It is a requirement of the General Employee Entitlement and Redundancy Scheme (GEERS) operated by the Government, that an order be obtained for redundancy from the relevant Industrial Relations Commission."1

[12] Mr Ireland said that, having drawn the attention to the employees to the fact that they would need to make application to the Commission, it would have been expected that the employees would have gone to the relevant authority to obtain advice on how to proceed. Employees were informed on 28 May 2002, and he submitted that the circumstances were not exceptional and that the Commission should not allow an extension of time.

[13] In answer to a question from the Commission, Mr Ireland said that the employees had not been written to by the administrators and informed of the 21 day time limit.

[14] Mr Cartwright said that on the 27 May 2002 there was a meeting with the administrator who told them that the business was ceasing on the 28 May 2002. The administrators had a pile of GEERS forms, which were passed to the employees, who were told that in order to apply for redundancy they had to fill out those forms and send them away to Canberra. There was no mention on that evening of anything to do with the Tasmanian Industrial Commission. He said that he had not read through the whole of the letter and had gone on the word of the administrator.

[15] Mr Rybak said that although the letter says that the Tasmanian Industrial Commission has been given special powers "it sort of doesn't really hit us on the head."2

[16] Mr Gregson said that he received a letter which told him what his entitlements were, including superannuation, and he thought that was all he was entitled to.

[17] Mr Siggers said that he did not know anything about an entitlement to redundancy. At the meeting on the night of 27 May 2002 the administrators just put all the GEERS forms in front of them and told them that was the procedure they had to follow.

[18] Mr Jones said that, as far as he knew, the GEERS form was all they had to fill in, and that he had no knowledge of the 21 days [limit].

[19] In response, Mr Ireland said that it was clear that there was a degree of confusion, but that to a certain extent ignorance is not excuse. [The law] states 21 days. Had the employees read the letter carefully they ought to have been in a position to ask the administrator for some further information.

[20] In a decision delivered on the day I said:

"I consider it be particularly relevant that the employees were given briefing sessions and letters by the administrator that concentrated...on the question of filling out their GEERS form. They were given ... information that talked about a time limit of 12, months, amongst a number of dot points that include redundancy. I take your point about ignorance being no defence, but the test in this instance is the exceptional circumstances.

In my view, the circumstances are exceptional where employees have not been given the complete picture by the administrators as to what they are required to do in order to obtain their entitlements or a proportion of their entitlements. I am particularly surprised that employees still have not been written to and informed of the time limit, particularly following the last hearing when it became obvious to the administrators who were present at the hearing that the employees were confused, if not even misled about what they needed to do in order to obtain redundancy entitlements and I strongly recommend to the administrator that if there are still employees who have not put in an application for redundancy payments, that they write to those employees and advise them that there is a 21 day time limit but that can be extended if there are exceptional circumstances...

I will extend the time for these applications to today's date."

[21] I now add that 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 administrators said:

"Employees are not eligible under the [GEERS] scheme if you:

...Lodge your claim 12 months after your employment was terminated."3

[22] This, combined with the instructions given by the administrators at the meeting of 27 May 2002, may have led the applicants to assume that they had up to twelve months in which to make application to this Commission for an Order in respect of redundancy payments. I confirm my decision delivered extemporaneously, that the period for lodging an application on behalf of the above-mentioned applicants be extended to 22 August 2002, the date of the hearing.

[23] The applicants said that they were seeking redundancy payments of two weeks' pay for each year of service. 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 of service of part thereof.

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) formerly Q's Couriers Pty Ltd, pay to each of the former employees whose names appear below the amount specified below, in full and final settlement of the industrial disputes referred to in T10349, T10350, T10351 and T10359 and in full and final settlement of that part of T10342 which refers to severance pay, such payment to be made no later than 5.00 pm 21 days after 4 October 2002.

Robert John Rybak $2,798.44
Roger Kevin Gregson $2,179.30
Brett Anthony Siggers $2,559.09
Steven Charles Cartwright $5,158.33
Paul Lee Jones $3,763.72

 

P C Shelley
COMMISSIONER

Appearances:
Mr F Ireland on behalf of ACN 090721190 under liquidation formerly known as Q's Couriers Pty Limited
Mr R Rybak, Mr R Gregson, Mr B Siggers, Mr S Cartwright and Mr P Jones representing

Date and place of hearing:
2002
August 22
Hobart

1 Exhibit R2
2 Transcript PN 114
3 Exhibit R1