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T10373 and T10367

 

TASMANIAN INDUSTRIAL COMMISSION

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

Susan Allison Medcraft
(T10373 of 2002)
Debbie Maree Neighbour
(T10367 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 - order issued

REASONS FOR DECISION

[1] On 14 and 16 August 2002 Debbie Maree Neighbour and Susan Allison Medcraft (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 090 721 190 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.

[2] The matters were heard together at the Supreme Court, Cameron Street, Launceston, on Tuesday 3 September 2002 at 9.30 am.

[3] The applicants represented themselves, and Mr Forbes Ireland appeared for the entity ACN No 090 721 190 under liquidation formerly known as Q's Couriers Pty Ltd.

[4] 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 applicant's employment was terminated on that date.

[5] 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

[6] Section 29 (1B) of the Act says:

"An application for a hearing 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".

[7] Mrs Neighbour had originally applied to the Commission as part of an earlier group of applicants, who had their claims heard in Hobart on 19 July 2002. On that occasion Mr Ireland, for the respondent, by way of written submission contended that Mrs Neighbour did not have an entitlement to a severance payment arising from redundancy, because, he said, she was a casual employee. In my written decision of 29 July 2002, I left it open for Mrs Neighbour to bring the matter back before the Commission, on the basis that although, in her application at that time, she had described herself as "casual" she had also indicated that she was usually employed for 50 hours per week and her period of employment had been from 24 July 2001 until 31 May 2002. Accordingly, the status of her employment was unclear and further information was required. Due to the particular circumstances of her case, Mr Ireland did not oppose Mrs Neighbour's application on the basis of it being out of time.

[8] Mr Ireland informed the Commission that he had taken further advice from the liquidators and he now accepted that Mrs Neighbour had been employed on a regular basis under the terms of the Clerical and Administrative Employees Award. Although her hours had varied, they ranged from 38 to 45 hours per week. On that basis, the respondent no longer opposed the awarding of a severance payment to Mrs Neighbour.

[9] In the case of Ms Medcraft, she told the Commission that she had originally sent an application for the awarding of severance payment to the Commission on 14 June 2002. That application was, apparently, not received at the Commission's office. She was advised to put in a fresh application, which is the application dealt with in this Decision. In the absence of any evidence or submissions to the contrary, I accept Ms Medcraft's explanation of the reason for the lateness of the application.

[10] I now confirm my finding, delivered extemporaneously on the day of the hearing that, in the case of both applications, there are exceptional circumstances, and, pursuant to s.29 (1B) of the Industrial Relations Act 1984, I extended the time for the lodging of the application to 3 September 2002.

[11] Mr Ireland said that Ms Medcraft was employed on a regular basis and was regarded as a weekly hire employee.

[12] Ms Medcraft told the Commission that she had been employed by the company for 19 months and had considered that she was an ongoing employee. She was claiming two weeks' pay for each year of service.

[13] Mrs Neighbour said that she was claiming severance payment on the basis that she considered that she would have ongoing regular employment had the company not gone into liquidation. She submitted that she should be paid two weeks' pay for each year of service. She was there for 11 months and was therefore claiming 11/12 of two weeks pay.

[14] I find that the Debbie Maree Neighbour and Susan Allison Medcraft were terminated as a result of redundancy and I confirm in writing my decision, delivered on the day, that the applicants should receive severance pay based upon two weeks' average pay for each year of service or 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 the former employees whose names appear below the amount specified below, in full and final settlement of the industrial disputes referred to in T10367 and T10373 of 2002, such payment to be made no later than 5.00 pm on Friday 4 October 2002.

Susan Allison Medcraft $1,767.90
Debbie Maree Neighbour $754.40

 

P C Shelley
COMMISSIONER

Appearances:
Mr F Ireland on behalf of ACN 090721190 under liquidation formerly known as Q's Couriers Pty Limited
Mrs D Neighbour and Mrs S Medcraft representing themselves

Date and place of hearing:
2002
September 3
Launceston